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MR. JUSTICE DALY
delivered the opinion of the Court.
This is an appeal from a judgment of dismissal of plaintiff’s action from the District Court of the Fourth Judicial District, in and for the County of Missoula.
Plaintiff was injured within the course and scope of his employment with JMS Construction in an industrial accident that occured on October 23, 1975. Defendant Aetna was the Plan II carrier for JMS Construction. Aetna employed defendant Wood to handle the adjusting of workers’ compensation claims on its behalf. Both defendants accepted plaintiff’s workers’ compensation claim as compensable under the Workers’ Compensation Act.
In January 1977, plaintiff filed a complaint against Aetna and Wood in the District Court of the Fifteenth Judicial District, in and for the County of Roosevelt, alleging tortious acts on the part of Aetna and Wood with respect to the adjusting and handling of his workers’ compensation claim. Aetna and Wood appeared and moved to dismiss. The Roosevelt County District Court granted the motion to dismiss on May 12, 1977, determining that plaintiff first had to establish his right to compensation before the Workers’ Compensation Court, which possessed exclusive jurisdiction.
Following the Roosevelt County District Court’s dismissal, plaintiff pursued his claim for workers’ compensation benefits before the Workers’ Compensation Court, wherein he prevailed. Aetna then appealed the Workers’ Compensation decision to the Montana Supreme Court. This Court affirmed the decision of the Workers’ Compensation Court. Hayes v. J.M.S. Const. (1978), 176 Mont. 513, 579 P.2d 1225.
Thereafter, plaintiff filed an amended complaint in Roosevelt County District Court in July 1978, alleging that Aetna and Wood had committed the intentional torts of fraud, conversion and intentional infliction of emotional distress. Plaintiff also alleged that Aetna and Wood had continuously refused to pay compensation benefits and medical bills. Both Aetna and Wood moved to dismiss in August 1978. On September 12, 1978, the Roosevelt County District Court denied the motions of Aetna and Wood to dismiss and ordered responsive pleadings.
The case was then transferred to Missoula County by stipulation of counsel, together with a memorandum opinion issued by the Honorable M. James Sorte, Judge of the District Court, Fifteenth Judicial District, Roosevelt County. The pertinent part reads:
“By reason of a stipulation filed by counsel, this case is transferred to the jurisdiction of Missoula County, Montana. However, there has been filed in the case, Plaintiffs Reply to the Objections by Aetna Fire Underwriters to Plaintiff’s Motion to Dismiss. The tenor of the reply is that counsel for Plaintiff entered into a stipulation that the matter could be transferred to Missoula County but counsel for Defendants have raised certain questions that have already been ruled upon by this Court. It is the opinion of this Court that the matters that have been briefed, considered by the Court, and ruled upon, are the rule and law of the case in this matter and that the District Court of the Fourth Judicial District is and should be bound by the rulings of this Court on all matters that have been previously brought before the Court, ruled upon, and are now final for those reasons. To allow counsel to again raise the same questions as have been ruled upon by this Court would do nothing less than encourage counsel to shop around for a different venue so that their position could be ruled upon on several occasions. All of this is contrary to the clear intent of our rules of procedure.”
In disregard of Judge Sorte’s Opinion, Wood and Aetna refiled in the Missoula County District Court on February 28, 1979 and March 13, 1979, respectively, motions which had been previously ruled upon in Roosevelt County. Such refiling constitutes a contempt. Sections 3-1-502 and 503, MCA. On June 1, 1979, the Missoula County District Court filed an order dismissing plaintiff’s complaint upon the grounds that the District Court lacked jurisdiction because exclusive jurisdiction rested with the Workers’ Compensation Court under section 92-204.1, R.C.M.1947, and the complaint failed to state a claim against the defendant upon which relief could be granted.
Plaintiff now appeals from the judgment of the Missoula County District Court granting the defendant’s motions to dismiss.
The appellant in this case states the issue for review by this Court as follows: whether a worker who sustains an injury covered by the Workers’ Compensation Act may assert in District Court a separate claim for damages alleging that the insurer and its adjustor committed intentional torts and acted in bad faith in adjusting and processing the workers’ compensation claim. Stated in another manner, is a complaint alleging that a workers’ compensation insurer and its adjustor committed the intentional torts of fraud, conversion, and intentional infliction of emotional distress upon a workers’ compensation claimant within the exclusive subject matter jurisdiction of the Workers’ Compensation Court?
Respondent George Wood agrees with the issue as stated by appellant. Respondent Aetna would like to confine the issue to the question: can the injured workman have his cake and eat it too?
We will accept the issues as formulated by appellant.
The dismissal by the Missoula District Court dated May 31, 1979, is with prejudice for lack of jurisdiction and exclusive jurisdiction in the Workers’ Compensation Court under section 92-204.1, R.C.M.1947, and because the complaint fails to state a claim against the defendant upon which relief can be granted.
It is a little difficult to agree or disagree with the Missoula District Court because the presiding judge rendered no opinion. We do not know if the court meant that under the exclusivity provision of section 92-204.1, R.C.M.1947, (now section 39-71-411, MCA) the Workers’ Compensation Court has jurisdiction to try willful torts not arising out of the actual employment or that the pleading was such that it did not state a claim in any court. In any case, the dismissal appears to be in direct conflict with the law of the case as established by the District Court of the Fifteenth Judicial District, the court of original jurisdiction.
We will not attempt to evaluate the merits of the dismissed case by the manner in which it was pleaded, but rather try to evaluate it from the standpoint of the type of action at bar and its genesis.
At the center of the dispute is the exclusivity provision of the Montana Workers’ Compensation Act, which is set forth in section 39-71-411, MCA. That statute states:
“For all employments covered under the Workers’ Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers’ Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers’ Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The Workers’ Compensation Act binds the employee himself and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer and those conducting his business during liquidation, bankruptcy, or insolvency.” (Emphasis added.)
Professor Larson in his treatise on Workmen’s Compensation Law has categorized exclusivity statutes in state workers’ compensation schemes into three general types. Larson, Workmen’s Compensation Law § 66.00, at 12-20, 21. Montana’s statute is a blend of two categories. It is intended to be a broad surrender of liability. It partakes of the California and Michigan type statutes, which state that an employer shall have “no other liability whatsoever,” and the New York type statute, which carries the surrender of liability one step farther by specifying that the excluded action includes those by “such employee, his personal representative, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death.” The last category is the Massachusetts type, which is the narrowest and states that the employee, by coming within the act, only waives his common law rights.
In three recent cases, this Court has been concerned with the exclusivity of Montana’s Workers’ Compensation Act. Each time the Court has resolved any doubt about the exclusivity of remedies in favor of the provisions of the Act. See Jacques v. Nelson( 1979), 180 Mont. 415, 591 P.2d 186; Carlson v. Anaconda Co. (1974), 165 Mont. 413, 529 P.2d 356. Cordier v. Stetson-Ross, Inc. (1979), 184 Mont. 502, 604 P.2d 86.
Respondents urge that Carlson is on all fours with the present cases. Carlson may be distinguished from the case at bar, however, on the basis that the facts and circumstances in Carlson give the case a much different character. Whereas the present case involves intentional torts or the presence of bad faith, Carlson involved a case of negligence or mismanagement. In Carlson, the Court seems to have accepted Anaconda’s argument that the failure to pay resulted from a mix-up in record keeping, not from bad faith. The Court distinguished Carlson from cases like Reed v. Hartford Accident & Indemnity Co. (E.D.Pa.1973), 367 F.Supp. 134, which involved the commission of intentional torts. In Carlson, the Court stated:
"Reed, 367 F.Supp. 134, cited by plaintiff is distinguishable on the facts. There the action at law was against the employer’s Workmen’s Compensation insurance carrier based on independent intentional torts and breach of an express contract to pay total disability benefits by false, fraudulent and perjured means. This is a far cry from the facts here and the attempted analogy fails.” 165 Mont. at 417, 529 P.2d at 358.
Jacques involved a claimant who filed a common law tort action in District Court against his employer, Anaconda Company, for injuries sustained while he was working as an employee at the Anaconda Reduction Works. Anaconda was a Plan I self-insurer under the Workers’ Compensation Act who had failed to file an employer’s first report of injury or to give the required notice that the claim was being denied. Anaconda moved to dismiss the complaint on the grounds that Jacques’ remedy was exclusively within the Workers’ Compensation Act. The motion was granted. Upon appeal, Jacques contended that the Act was not his exclusive remedy because Anaconda had elected not to comply with certain mandatory requirements of the Act. This Court rejected Jacques’ argument by stating:
“The Act requires the employer to file a first report of injury . . . Here, plaintiff’s employer failed to do so. The Act provides a civil penalty of not more than $ 1,000 against the employer for failure to file the first report of injury . . . Nowhere in the Act does such failure constitute an election by the employer not to be bound by the Act or subject him to a common law tort action. The mandatory coverage of all private employment not expressly exempted under the Act would be nullified were we to hold that such failure removes Workmen’s Compensation coverage.
“The Act further requires the employer to give written notice to the employee of denial of his claim . . . Plaintiff alleges he never received such notice. The Act provides for the imposition of a 10% penalty if compensation is awarded by the Workers’ Compensation Court . . . Nowhere in the Act does failure to give such notice remove the employer from coverage under the Act or subject him to a common law tort action.
“If the law were otherwise, the purpose and intent of the mandatory coverage of the Act would be effectively subverted. The employer could eliminate the coverage of the Act over a particular employee or a particular accident at will simply by refusing to file an accident report or failing to notify its employee of a denial of his claim. This would indeed be a unique and unparalleled kind of Workmen’s Compensation Act coverage.” Jacques, supra, 591 P.2d at 187, 188.
Again, respondents urge that Jacques is persuasive and controlling. Jacques may be distinguished from the cases at bar, however, on the basis that it involved an action in District Court against an employer for injuries sustained by an employee during the course of his employment, whereas the present cases involve actions in District Court against insurers and their adjusters for intentional torts committed after the employment relationship had ceased. Where the exclusivity statute states that “an employer is not subject to any liability whatever Jor the death oj or personal injury to an employee,” Jacques clearly fits within the exclusion. (Emphasis added.)
The law is very clear and Montana follows it with regards to Workers’ Compensation exclusivity and the exclusive jurisdiction of the Workers’ Compensation Court to settle disputes of all kinds that arise in good faith and legitimately out of workers’ claims. Yet, the respondents fail to follow the argument through the problems we face in the case at bar. What happens to an intentional or bad faith tort that arises, not out of the workers’ employment, but after his employment has ceased? Although it is not new in the law, Montana has not reached that situation until now. Other jurisdictions have been confronted with the precise issue presented in this case, Gibson v. Nat. Ben Franklin Ins. Co. (1978), Me., 387 A.2d 220; Martin v. Travelers Insurance Company (1st Cir. 1974), 497 F.2d 329; Stafford v. Westchester Fire Ins. Co. of N.Y., Inc. (Alaska 1974), 526 P.2d 37; Unruh v. Truck Insurance Exchange (1972), 7 Cal.3d 616, 102 Cal.Rptr. 815, 498 P.2d 1063; Coleman v. American Universal Ins. Co. (1970), 86 Wis.2d 615, 273 N.W.2d 220. See also Reed, supra. These cases have upheld the right of a claimant to bring an action in District Court against an insurer and its adjuster for independent intentional torts committed in the processing of a workers’ compensation claim.
The right has been upheld on several different grounds. First, and most frequently, the courts have upheld the right to bring an action for independent intentional torts because the tortious conduct, which gives rise to the action, does not arise out of the original employment relationship. It occurs after employment and arises out of the employee’s relationship with the insurance carrier after the employment relationship has been terminated. It is predicated on an act after the injury and during the settlement of the claim. The insurance carrier is no longer the “alter ego” of the employer, but rather is involved in an independent relationship to the employee when committing such tortious acts. Gibson, 387 A.2d at 222-223; Reed, 367 F.Supp. at 135; Martin, 497 F.2d at 330-331; Stafford, 526 P.2d at 43; Unruh, 498 P.2d at 1073; Cole man, 273 N.W.2d at 223. Perhaps the best statement of the concept is found in Coleman, which stated:
“The injury for which remedy is sought in the instant case is the emotional distress and other harm caused by the defendants’ intentional acts during the investigation and during the course of payment of the claim. This claimed injury was distinct in time and place from the original on-the-job physical injury which was subject to the Compensation Act. The injury for which recovery is sought in the present actions did not occur while the plaintiff was employed or while he was performing services growing out of and incidental to his employment. As the plaintiff repeatedly and correctly stresses in his brief, this action is based not on the original work-related injury but on a second and separate injury resulting from the intentional acts of the insurer and its agents while investigating and paying the claim. The Act does not cover the alleged injury, and the exclusivity provisions does not bar the claim.” 273 N.W.2d at 223.
The second basis upon which courts have upheld the right to bring an action for independent intentional torts concerns the penalty provisions of the state workers’ compensation acts. Many state acts like Montana’s contain provisions which create penalties where employers fail to pay benefits or exercise unreasonable delay in paying such benefits. Several courts have determined that these provisions are not exclusive with respect to a claimant’s remedies because legislatures did not contemplate them as being remedies for intentional wrongdoings. Where the wrong is intentional, malicious and calculated to cause intimidation, courts have held that a claimant is entitled to another remedy. Gibson, 387 A.2d at 223; Martin, 497 F.2d at 331; Stafford, 526 P.2d at 43; Coleman, 273 N.W.2d at 224.
One court has determined that the character of the penalty provisions within the workers’ compensation schemes is such that they are especially applicable to kinds of conduct which are not intentional. Though they may be triggered by intentional wrongdoings or the presence of bad faith, they apply to conduct which falls short of bad faith, such as cases of mismanagement or deficient administrative practices. Where intentional wrongdoing is involved, one court has stated that the conduct cannot merely be expiated by penalty payments augmented in the amount of 10%. Coleman, supra, 273 N.W.2d at 224.
Other bases have been offered by courts to substantiate the rights as well. One court has relied upon a state constitutional provisions, such as Article II, section 16, 1972 Montana Constitution, which provides that every person shall have a remedy by due course of law for an injury done to him. Gibson, supra, 387 A.2d at 223.
The weight of authority has resolved this issue in favor of an independent action in the District Court for an intentional tort, as it does not arise out of an employment relationship. The penalty provisions of state schemes are not intended as remedies for intentional wrongdoings. The Compensation Act should not be a “shield” which will insulate those who would engage in intentional wrongdoing in the settlement and investigation of workers’ claims. No one should be allowed intentionally and tortiously to cut off a claimant unilaterally for whatever purpose they choose and then hide behind workers’ compensation exclusivity in assurance that the only retribution will come in the form of a compensation penalty paid for by society.
Insofar as the plea made by the respondents in their limited defense of the carrier, we can only add that any party involved in the business of insurance knows its rights and responsibilities as well as its obligation to deal in good faith and with fairness toward those who are entitled to the protection of the Workers’ Compensation Act.
The order and judgment dismissing plaintiff’s complaint is hereby vacated and set aside and the cause remanded to the District Court for further proceedings.
MR, CHIEF JUSTICE HASWELL and JUSTICES SHEA and SHEEHY concur.
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MR. JUSTICE DALY
delivered the opinion of the Court.
Defendant was convicted in the District Court of the First Judicial District of the crime of sexual intercourse without consent and was sentenced to 10 years in the Montana State Prison, with the last nine years suspended. Defendant appeals from the above conviction and judgment.
This case arose from a complaint filed by Mary Rose Cloninger alleging that defendant forced her to engage in sexual intercourse in the early morning hours of August 4, 1978. There is no dispute that on that morning the defendant and the complainant engaged in sexual intercourse. The sole issue at trial was whether the act was committed without consent.
Evidence taken during the trial revealed that the prosecutrix, a former barmaid, and defendant had known each other for a period of approximately ten years; that during their teenage years the prosecutrix had often telephoned defendant and was familiar with defendant’s voice on the telephone; that during those years they were on many occasions alone together; that both the prosecutrix and defendant were involved in rodeo activities as were their respective families; that defendant had previously gone with the prosecutrix’s younger sister Carrie for about a year; that Carrie had never complained to the prosecutrix of defendant making any untoward or insulting approaches to her; and that at the time of trial Carrie was still quite friendly with defendant and vehemently objected to her sister’s rape charges, as did other members of the family.
With respect to the incident out of which the present case arose, the testimony of the prosecutrix indicates that between 3:30 and 4:00 a. m. on August 4, 1978, defendant telephoned the prosecutrix and told her that he was at a party and asked if she would cook breakfast for him. She agreed to do so, and defendant arrived at her residence shortly thereafter. She had not dressed and was wearing only a light, clinging robe and nothing else.
After breakfast the prosecutrix testified she offered to allow defendant to use a spare bedroom. She testified she did this because she knew defendant had to be at work at 7:00 that morning at a location relatively close to the Cloninger residence. When she was showing him to the room, the defendant made a sexual advance at the prosecutrix, which she rebuffed. She then returned to her bedroom. A few minutes later, defendant entered her bedroom and forcibly accomplished an act of sexual intercourse with her. She testified that she screamed and struggled, but ceased her resistance because of fear for her safety. This fear stemmed in part from a previous incident where defendant had allegedly assaulted her physically for calling him a “son-of-a-bitch.”
Defendant’s story is consistent with the prosecutrix’s testimony up to the point where she offered to allow defendant to sleep at her house. According to defendant, he had been drinking in a bar for several hours and had then gone to a house party at the home of a friend. He testified that he considered himself to have been drunk. He called the prosecutrix because he desired some female companionship for the night, though he admitted that there were no previous instances of sexual relations between them. He testified that he went over to the prosecutrix’s house after his request for breakfast was granted.
According to defendant, when Ms. Cloninger offered to allow him to sleep at her house, she told him he could sleep anywhere he wanted to, and then she went to bed; that she did not take him to any room; that he was completely familiar with the layout of the house; that it would not have been necessary for her to show him the location of any room; that he took his shoes and socks off in the kitchen, went into the bedroom through a door that was open and lifted up the covers and crawled into bed beside her; that he still had his shirt and pants on; that they started necking and he kissed her on the lips, neck, nipples and unzipped her bathrobe all the way; that she did not cry or scream; that he took his clothes off in the course of which he unbuckled his belt and undid his buttons and zipper and pushed his pants down; that during all that time he was not holding her in any way except that he had his arm around her; that she did not object or resist in any way, nor did she ever tell him to stop; that she responded to him and he completed the sex act with her and she appeared to cooperate; that when it was over he was laying beside her and they started talking; that the prosecutrix was talking about her boyfriend Ed and stated that “after he went to college this fall that we could start going out”; that defendant told her that he had never mentioned anything about going out together and that with this she became very angry and told defendant to “get the hell out of the house, you son-of-a-bitch”; that with respect to the doctor later finding a little redness around her wrist that he did not hold her wrist, pinch it or anything of that sort; and that when he left the home of the prosecutrix that morning; he had no suspicion whatever that she would accuse him of rape.
The prosecutrix did not phone for help upon the departure of defendant but showered and went to a girlfriend’s house, Diana Trankel, and from there, some time later, the authorities were called.
The following issues are presented to this Court for review:
1. Is the evidence sufficient to support the verdict?
2. Did the trial court err in refusing defendant’s cautionary instruction that “the crime of sexual intercourse without consent is easy to charge and difficult to refute”?
3. Did the trial court err in refusing to instruct the jury on the statutory prohibition against introduction of the victim’s prior sexual conduct?
4. Did the trial court err in refusing to instruct the jury that knowledge of the victim’s lack of consent is an element of the offense of sexual intercourse without consent?
5. Did the trial court’s instructions improperly “give undue prominence” to the State’s case?
6. Did the trial court err in giving Instruction Nos. 7, 8, and 10 on the ground that the instructions were irrelevant to the issues and evidence presented?
This case, like so many others, is close. The very fact that the "consent” or the very case itself is hotly contested and rests solely on the testimony of the prosecutrix or one person and remains uncorroborated puts a hard burden on the trial court insofar as a directed verdict is concerned, or on this Court on sufficiency of evidence. The law is almost as close as the facts in these matters.
Initially, defendant alleges that the court erred in denying defendant’s motion for a directed verdict of acquittal. He contends that various inconsistencies make the prosecutrix’s version of the facts inherently improbable. The evidence was therefore insufficient to convict. Defendant submits that in the trial of cases of alleged rape, the court should view evidence over and above the substantial evidence rule applicable in other cases to determine whether or not evidence of the alleged crime is inherently improbable. De Armond v. State (Okl.Cr.1955), 285 P.2d 236; State v. Shouse (1953), 57 N.M. 701, 262 P.2d 984; State v. Richardson (1944), 48 N.M. 544, 154 P.2d 224. Defendant also cites Montana cases which support the inherently improbable test to determine sufficiency of the evidence in rape cases. State v. Moe (1923), 68 Mont. 552, 219 P. 830; State v. McIlwain (1921), 60 Mont. 598, 201 P. 270.
The State contends there is nothing inherently improbable about the scenario presented by the prosecutrix. It argues that this case falls into the class of cases typified by State v. Peterson (1936), 102 Mont. 495, 59 P.2d 61, and State v. Gaimos (1916), 53 Mont. 118, 162 P. 596, where the testimony of the prosecutrix, although impeached to an extent, was internally consistent and worthy of belief by a jury so inclined.
Section 46-16-403, MCA, provides:
“When, at the close of the state’s evidence or at the close of all the evidence, the evidence is insufficient to support a finding or ver- diet of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant. . .”
The general rule in Montana appears to be that a directed verdict of acquittal is appropriate in criminal cases “only where the State fails to prove its case and there is no evidence upon which a jury could base its verdict.” State v. Yoss (1965), 146 Mont. 508, 409 P.2d 452, 455. “The decision whether to dismiss the charge or direct a verdict of acquittal lies within the sound discretion of the trial court and will be disturbed on appeal only when abuse is shown.” State v. fust (1979), 184 Mont. 262, 602 P.2d 957, 965.
Defendant’s second contention is that the refusal of the trial court to give the cautionary instruction, “the charge of rape is easily made and difficult to refute,” especially where, as here, the proof of lack of consent rests entirely on the uncorroborated testimony of the prosecutrix, is reversible error.
This Court faced a similar situation recently in State v. Just, supra, wherein we stated:
“Instructions similar to the one above were offered in the earlier cases of State v. Keeler (1916), 52 Mont. 205, 211, 156 P. 1080, 1081, and State v. Mihalovich (1924), 69 Mont. 579, 585, 22 P. 695, 697. In each of those cases, this Court held that the trial judge’s refusal to give the instruction was proper when there was nothing in the record to suggest that the prosecutrix was motivated by private malice or a desire for revenge . . . The test for determining the propriety of giving an instruction such as that offered by defendant was set forth in the recent case of State v. Ballew (1975), 166 Mont. 270, 276, 532 P.2d 407, 411: ' .. it is clear that refusals to give such an instruction will be error only when some specific cause is shown for distrusting the testimony of the complaining witness. Such causes might include manifest malice, desire for revenge, or an absence of corroborating evidence tending to support the facts testified to by the complaining witness. ’ ” 602 P.2d at 964. (Emphasis added.) (Citations omitted.)
As pointed out above, the matter at hand is troublesome. This should alert a trial judge to proceed with extreme caution, because the search for truth is going to be elusive and difficult, and fundamental fairness is not easily obtained under these kinds of circumstances. The reasons are clear why all available means be used to impress upon the jury that uncorroborated testimony of one person to decide a criminal cause is not the usual situation, even though acceptable by the law in this cause, and that they should proceed fairly but with additional caution in this kind of matter.
Here there was undisputed direct evidence that there had been more than casual trouble between these parties in the past when defendant allegedly struck the prosecutrix. The incidents, however, stemming from defendant’s relationship with the prosecutrix’s sister, were not based on drink or sex, but on defendant’s objection to being called a “son-of-a-bitch” by the prosecutrix upon two of the occasions.
Defendant testified that after the sex act was completed on the night of the alleged rape, the prosecutrix suggested a “going out together relationship,” after her boyfriend “Ed” returned to college. Defendant states he demurred, and again, without any apparent fear of being beaten, she told him, “get the hell out of my house you son-of-a-bitch.”
There is no question that these incidents, true or false, are properly in the record, together with some other impeachment on peripheral matters. Further, there is no question that this evidence entitled defendant to the cautionary instruction. The evidence clearly meets the standard of private malice, desire for revenge, and absence of corroboration on the critical matters of consent, all as required by State v. Ballew (1975), 166 Mont. 270, 275-76, 532 P.2d 407, 410-11, and cases cited therein. Failure to give a cautionary instruction in this kind of matter, as previously stated, is more serious than in the ordinary criminal causes and requires reversal.
Therefore, the remainder of defendant’s issues for review need not be considered'. The judgment of the District Court is reversed, and the cause remanded for a new trial.
MR. JUSTICES SHEA and SHEEHY concur.
MR. CHIEF JUSTICE HASWELL deeming himself disqualified, did not participate.
|
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] |
MR. JUSTICE DALY
delivered the opinion of the Court.
Plaintiffs Edmund Beedie and Truck Insurance Exchange brought this action in the District Court of Yellowstone County to recover damages for injuries sustained as a result of defendants’ alleged negligence. The complaint was filed on October 15, 1979, and both parties filed motions for summary judgment with accompanying briefs and affidavits. The District Court held a hearing on the motions, granted summary judgment for the defendants and dismissed the plaintiffs’ action. Plaintiffs appeal from this dismissal.
Plaintiff Edmund Beedie is an employee of Goodan Conoco Service Station located in Lewistown, Montana. Beedie was injured on September 8, 1976, when he was hit by defendant Martha Shelley’s motor vehicle, driven by defendant John Shelley, as he was walking from the shop area to the gas pump island of the service station. Beedie received head and leg injuries and was unable to return to work for over 12 weeks.
Beedie’s employer filed a workers’ compensation claim which was settled on July 14, 1978. Plaintiff Truck Insurance Exchange made final payments to Beedie on July 17, 1978, and has asserted a subrogation claim in the amount of $7,728.06. John Shelley moved to Medford, Oregon, in June 1978 and Martha Shelley joined him there in August 1978.
There was some question raised in the District Court concerning the reasons for this move and whether or not plaintiffs were aware of defendants’ location. Plaintiffs contend that defendants fled the state to avoid service of process for this suit and that they were unaware of defendants’ whereabouts until September 28, 1979. They argue that this disappearance from the state tolled the statute of limitations.
Defendants, however, presented evidence in the District Court showing bona fide reasons for leaving the state and also that an agent of plaintiff-insurer was aware of their new addresses. Defendants argue that they were at all times available to service and therefore the statute of limitations had run by the time the action was filed.
Although appellants raise four issues on appeal, this case can be decided on the single issue of whether the District Court erred in granting summary judgment based on the running of the statute of limitations.
Appellants initially contend that the statute of limitations was tolled because respondents were outside the State of Montana during periods of time after the date of the accident. This contention is based on section 27-2-402, MCA. Respondents, on the other hand, argue that although they have been nonresidents and outside Montana at certain times subsequent to the date of the accident, they have always been available for service of process under Rule 4D(3), M.R.Civ.P. (Montana’s long-arm statute).
In Montana a tort action must be commenced within three years of the commission of the tort. Section 27-2-204, MCA. Section 27-2-402, MCA, provides:
“If when the cause of action accrues against a person he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of action accrues he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.”
Rule 4D(3), M.R.Civ.P., provides:
“Personal service outside the state. Where service upon any person cannot, with due diligence, be made personally within this state, service of summons ,and complaint may be made by service outside this state in the manner provided for service within this state, with the same force and effect as though service had been made within this state. Where service by publication is permitted as hereinafter provided, personal service of a summons and complaint upon the defendant out of the state shall be equivalent to and shall dispense with the procedures and the publication and mailing provided for hereafter in 4(5)(c), 4(5)(d) and 4(5)(e) of this rule.”
Rule 4B(1), M.R.Civ.P., provides in pertinent part:
“. . . any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
“(b) the commission of any act which results in accrual within this state of a tort action;”
When Rules 4B(1) and 4D(3) are read together, it becomes readily apparent that respondents here were at all times subject to the jurisdiction of Montana courts and were therefore amenable to service of process.
This Court faced a similar situation in State ex rel. McGhee v. District Ct. of Sixteenth J.D. (1973), 162 Mont. 31, 508 P.2d 130. In McGhee the petitioner requested a writ of supervisory control seeking to compel the trial court to grant summary judgment based on the running of the statute of limitations. The case involved a wrongful death action against a ranching partnership collectively and the partners individually. The accident occurred on December 20, 1968, while R. W. McGhee was present in the state. He continued to reside in the state until May 1971 and after that date he resided in Utah. The complaint was filed on January 4, 1972, and R. W. McGhee was served on May 30, 1972, in Utah, pursuant to the long-arm statute.
In McGhee we granted petitioner’s request for supervisory control and held that where plaintiff could effectively serve defendant outside the state, absence from the state would not toll the statute of limitations. We stated:
“The purpose of section 93-2702, R.C.M.1947 [now section 27-2-402, MCA], is to prevent a defendant from defeating a plaintiff’s claim for relief by leaving the state or by establishing residence in another state. But, there is an exception to this rule. In cases where the plaintiff may effect service of process by some method, even though the defendant may be a nonresident or absent from the state, the statute continues to run during the absence or nonresidency . . .
“The alleged tort was committed by R. W. McGhee while he resided in Montana and under Rule 4B( 1), M.R.Civ.P., this subjects him to the jurisdiction of the Montana courts. By being subject to the jurisdiction of respondent court and capable of being served during the entire time, the statute of limitations was not tolled . . .” 508 P.2d at 131-32.
See also, State v. District Court of Fourth Judicial District (1966), 148 Mont. 22, 417 P.2d 109; Baker v. Ferguson Research, Inc. (D.Mont.1974), 61 F.R.D. 637. In the instant case, the accident occurred on September 8, 1976. Defendant John Shelley resided in this state until June 1978 when he moved to Medford, Oregon, followed shortly by his wife in August 1978. The defendants were uninsured at the time of the accident; however, shortly after the accident, Martha was insured by Mid-Century Insurance Exchange and John by Farmers Insurance Exchange, both affiliated companies of appellant Truck Insurance Exchange. Exhibits produced in the District Court indicated that as of early August 1979 Truck Insurance Exchange had knowledge of the Shelleys’ Oregon address. This address was later utilized in serving respondents with the summons and complaint. The complaint here was filed October 15, 1979.
The delay in filing the complaint was apparently caused by appellants’ desire to ascertain whether the Shelleys had sufficient assets to answer for any judgment before going ahead with a lawsuit. This reason is not sufficient to toll the statute of limitations, as appellants could have filed the complaint before the statute of limitations ran and served it within a reasonable time thereafter. Rule 3, M.R.Civ.P. The Shelleys were residents of Montana at the time of the accident. Under Rule 4B(1) this subjected them to the jurisdiction of the Montana courts. Because they were subject to our jurisdiction and capable of being served during the entire time, the statute of limitations was not tolled.’ State ex rel. McGhee v. District Ct. of Sixteenth J.D., supra.
Appellants next contend that the defense of statute of limitations is not available against its subrogation claim. We disagree. Appellants’ claim is one of subrogation. It is derived from that of the insured and is subject to the same defenses, including the statute of limitations as though the action were sued upon by the insured. Sunset-Sternau Food Co. v. Bonzi (1964), 60 Cal.2d 834, 36 Cal.Rptr. 741, 389 P.2d 133; May Trucking Co. v. International Harvester Co. (1975), 97 Idaho 319, 543 P.2d 1159. Therefore, the statute of limitations began running at the time of the accident, September 8, 1976.
The District Court acted correctly in granting respondents’ motion for summary judgment.
Affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON, SHEA and SHEEHY, concur.
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OPINION AND ORDER
¶1 The Commission on Practice of the Supreme Court of the State of Montana (the Commission) entered its findings of fact, conclusions of law, and recommendation to the Court on November 20, 2006, regarding a complaint filed against Joseph Engel, III, (Engel), an attorney licensed to practice law in the State of Montana. The Office of Disciplinary Counsel of the State of Montana (ODC) alleged in its complaint that Engel had violated numerous provisions of the Montana Rules of Professional Conduct (MRPC). The Commission concluded that no clear and convincing evidence supported the allegations made in the complaint. The Commission recommends that this Court dismiss the complaint. ODC objects to the Commission’s recommendation. We conclude that Engel violated Rules 1.5,1.15, and 1.18, MRPC. We remand this matter to the Commission for its consideration and recommendation of an appropriate sanction.
¶2 ODC presents the following issues for review:
¶3 1. Whether Engel violated Rule 1.5, MRPC, by charging an excessive fee for his legal services in a trust termination action.
¶4 2. Whether Engel violated Rules 1.15 and 1.18, MRPC, by failing to deposit retainer fees in an IOLTA or client trust account.
¶5 3. Whether Engel violated Rule 1.7, MRPC, by engaging in a conflict of interest.
¶6 4. Whether Engel violated Rules 1.14,2.1,8.4(c), MRPC, by failing to advise his client that a relative had mismanaged her affairs.
FACTUAL AND PROCEDURAL BACKGROUND
¶7 We discussed most of the facts giving rise to this matter in In re Conservatorship of Kloss, 2005 MT 39, 326 Mont 117, 109 P.3d 205. We will repeat here only those facts necessary for our analysis. Alice Kloss (Kloss) was bom on November 26, 1906. She died April 22, 2006, at the age of 99. Kloss, a widow, had no relatives living in Montana until 1998, when she fell and broke her legs, hip, and pelvis. The injuries forced her to move from her apartment to an assisted living facility in Great Falls. Kloss established the Alice P. Kloss Charitable Remainder Trust (CRT) on May 19, 1998. The CRT consisted of $365,000 from Kloss’s roughly $1,000,000 estate.
¶8 After her injuries, Kloss requested that Kenneth Parrent (Parrent), her 71-year-old nephew, move from Colorado to Great Falls to assist in the care of her affairs. Kloss executed an unlimited power of attorney for Parrent to manage her assets. Engel represented Kloss in three legal matters: an action to terminate the CRT; a tort claim against Edward D. Jones; and a conservatorship proceeding involving Kloss. Kloss paid Engel approximately $296,000 for his services in these three separate matters.
¶9 Engel originally signed a fee agreement with Kloss on July 1, 1998, to terminate the CRT for an hourly rate of $125. Parrent signed the fee agreement on Kloss’s behalf. Engel filed a petition to terminate the CRT on September 21, 1998. All of the CRT’s beneficiaries voluntarily relinquished their interests. The District Court terminated the CRT on October 14,1998. Engel’s bills indicate that he performed 65.9 hours of work in terminating the CRT. Kloss paid Engel $8,362.50 for this work in 1998 according to the terms of the hourly agreement signed by Engel and Parrent.
¶10 Engel signed a second fee agreement with Kloss on October 27, 1998. This second fee agreement related to Kloss’s action against her former brokerage firm, Edward D. Jones, and its manager. Kloss alleged that Edward D. Jones tortiously had caused her to execute the CRT. Parrent retained Engel to prosecute the action and to represent both Kloss’s and Parrent’s interests. The parties eventually settled the action with Edward D. Jones agreeing to pay $150,000 to Kloss.
¶11 Kloss paid Engel a retainer of $20,000 pursuant to the October 27, 1998, agreement. The second fee agreement provided that Engel would bill Kloss at an hourly rate of $125 from the $20,000 retainer. The second fee agreement further provided that Kloss and Engel would divide any recovery in the action against Edward D. Jones, with Engel receiving thirty-five percent and Kloss receiving sixty-five percent. Engel received an additional $50,000 retainer in January2002. Engel’s accounting principles make it impossible to determine precisely to which litigation this $50,000 retainer fee applied. Engel contends that he used this $50,000 retainer fee to cover the cost of his work in a separate conservatorship action involving Kloss. It should be noted, however, that this conservatorship proceeding began in June 2003, about 18 months after Engel received the $50,000 retainer fee. Engel did not place either of these retainers into an IOLTA account or a client trust account. Engel instead placed the $20,000 and $50,000 retainers directly into his operating account.
¶12 Engel next modified the original July 1,1998, fee agreement with Kloss relating to the termination of the CRT. Engel informed Kloss of the purported novation of the agreement through a letter that he sent to Kloss on February 1, 2000, in which he transmogrified the hourly fee arrangement for work already completed into a contingent fee. Engel informed Kloss that the contingent fee for representing her in the CRT termination almost two years earlier would be one-third of the amount that he had “recovered” through his prosecution of the uncontested termination proceeding. Kloss signed the consent form on the bottom of the letter on February 22, 2000.
¶13 Engel further refined the fee agreement relating to the CRT termination through a letter to Parrent on July 5, 2000. Engel acknowledged receipt of $10,000 and confirmed that he would receive $10,000 monthly installments for the remainder of the year 2000, for a total of $70,000. Engel further informed Parrent that the remaining $50,000 due under the CRT termination fee agreement would be payable in 2001 with the specific timing being a “matter of mutual convenience.”
¶14 Engel revised the 1998 CRT agreement a final time on October 3, 2003, through a “supplemental attorney-client fee contract.” Engel intended this supplemental agreement to “replace!] entirely” the original hourly fee agreement and to be “retroactively effective” from July 1,1998. The supplemental agreement provided that Engel would receive one-third of $365,000, the same amount as the value of the CRT.
¶15 ODC investigated a complaint regarding Engel’s representation of Kloss. ODC alleged in a formal complaint that Engel had committed four counts of professional misconduct. The first count alleges that Engel had charged an unreasonable fee for his representation of Kloss in the CRT termination action in violation of Ride 1.5, MRPC. The second count charges that Engel violated Rules 1.15 and 1.18, MRPC, by failing to deposit the $20,000 and $50,000 retainer fees in a trust account. Count Three alleges that Engel’s representation of Kloss and Parrent constituted a conflict of interest in violation of Rule 1.7, MRPC. The fourth count accuses Engel of violating the duty of loyalty by failing to protect Kloss from Parrent’s alleged misuse of her assets. ¶16 The Commission heard the matter on September 22, 2006. The hearing focused on the fee arrangements that Engel had entered with Kloss between 1998 to 2003. Engel testified that he viewed Kloss as “competent” and working “in concert” with Parrent. Engel further testified that he modified the July 1, 1998, fee agreement two years after the CRT had been terminated because he wanted to find a way to pay for Kloss’s tort action against Edward D. Jones without exhausting Kloss’s resources. Engel admitted that the CRT termination and the Edward D. Jones tort litigation constituted two separate matters, but Engel testified that he treated the CRT recovery as part of the “entire matter.” Engel also agreed with the Commission that he created cumbersome, confusing, ambiguous documents that needed explanation.
¶17 The Commission determined that no clear and convincing evidence supported the allegation in the complaint against Engel. The Commission recommends that this Court dismiss the complaint. ODC objects.
STANDARD OF REVIEW
¶18 This Court “possesses original and exclusive jurisdiction and responsibility” in all matters involving the disciplining of lawyers in the State of Montana. See Introduction, Montana Rules for Lawyer Disciplinary Enforcement. As a result, we review de novo the Commission’s findings of fact, conclusions of law, and recommendations. We weigh the evidence upon which the Commission’s findings rest. In the Matter of Potts, 2007 MT 81, ¶ 32, 336 Mont. 517, ¶ 32, 158 P.3d 418, ¶ 32.
DISCUSSION
¶19 We first must address Engel’s motion to dismiss ODC’s objections to the Commission’s recommendation. Engel argues that the Montana Rules for Lawyer Disciplinary Enforcement (MRLDE) do not allow this Court’s review of ODC’s objection unless ODC first sought reconsideration of the Commission’s decision under Rule 14, MRLDE. Engel asserts that Rule 14, MRLDE, requires the ODC to petition for reconsideration within thirty days of the panel’s decision. Rule 14, MRLDE, provides that “[t]he Supreme Court may, in its sole discretion, review the Panel’s disposition upon reconsideration.” Engel contends that ODC’s failure to request reconsideration of the panel leaves this Court with nothing to review.
¶20 Rule 14’s limitation of this Court’s review to matters that had been reconsidered by the Commission does not apply to formal complaints submitted by ODC. Rule 14 sets forth the procedures to be taken by the “Adjudicatory Panel” when a “complainant” requests reconsideration of a disposition of a complaint. Rule 14’s history reveals, however, that ODC does not qualify as a “complainant.” Rule 14 originated out of former Rule 8B. Rule 8B existed before this Court made global changes to the lawyer disciplinary system that became effective in July 2002. Former Rule 8B and Rule 14 are nearly identical with the exception that Rule 14 substitutes the term “Panel” for “Commission.”
¶21 The need for the change from “Commission” to “Panel” arose from the fact that Rule 8B operated when the Commission performed both prosecutorial and adjudicatory functions in the disciplinary system. Former Rule 8B applied only to complainants submitting informal complaints. The Commission would not give notice to itself under Riile 8B that it could request review of its own determination. This Court adopted the language of former Rule 8B almost verbatim in creating the new Rule 14. Rule 14 likewise applies to the informal complaints rather than the formal complaints lodged by ODC.
¶22 Moreover, Rule 14, MRLDE, applies to matters pending before an “Adjudicatory Panel.” The Commission’s filing of its findings, conclusions, and recommendations with this Court on November 20, 2006, precludes the panel from reconsidering its decision as the matter is no longer “pending” before the panel. Rule 14, MRLDE. We deny Engel’s motion to dismiss ODC’s objections to the recommendations of the Commission.
¶23 Whether Engel violated Rule 1.5, MRPC, by charging an excessive fee for his legal services in a trust termination action.
¶24 ODC challenges the Commission’s finding that Engel’s fees of approximately $296,000 were not excessive when “taken as a whole.” ODC argues that Engel’s fees must be examined as two separate matters as evidenced by the two separate fee agreements entered by the parties. ODC points out that the July 1, 1998, fee agreement related to the termination of the CRT, while the October 27,1998, fee agreement addressed Engel’s representation of Kloss in the separate tort action against Edward D. Jones. ODC argues that Engel’s fee of $121,545 under the July 1, 1998, fee agreement constituted an unreasonable fee in light of the work Engel had performed to terminate the CRT.
¶25 A lawyer’s fees must be reasonable. Rule 1.5(a), MRPC. We consider the following factors in determining the reasonableness of a lawyer’s fee: 1) the labor and time required, the novelty and difficulty of the question involved, and the requisite skill to perform the legal services properly; 2) the likelihood that the acceptance of the particular employment would bar the lawyer from accepting other employment; 3) the fee customarily charged in the locality for similar legal services; 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or by the circumstances; 6) the nature and the length of the professional relationship with the client; 7) the experience, reputation, and ability of the lawyer performing the services; 8) whether the fee is fixed or contingent. Rule 1.5(a), MRPC. ¶26 Engel testified that he possesses no particular expertise in the area of trusts. The CRT termination was a simple process as evidenced by the fact that the matter had been uncontested. All of the CRT’s beneficiaries voluntarily relinquished their interests. The district court terminated the CRT within one month of Engel filing the petition. ¶27 Helena lawyer Dan McLean (McLean) testified as an expert witness for ODC. McLean’s practice focuses on estate planning and probate trust administration. McLean testified that the termination of Kloss’s CRT was “a pretty simple process” that “would not have taken a great deal of time and effort.” McLean further testified that the customary fee in Great Falls in 1998 for terminating a CRT ranged between $1,500 and $2,500.
¶28 Kloss initially paid Engel $8,362.50, according to the terms of the hourly agreement signed by Engel and Parrent. This amount far exceeds the going rate of $1,500 to $2,500 for this type of work in Great Falls in 1998. Engel’s bills indicate that he performed 65.9 hours of work in terminating the CRT. Engel then modified his fees two years after the CRT had been terminated and after he had been paid for such work. Engel changed his fee from his hourly rate of $125 to a contingency fee, wherein Engel would collect one-third of the $365,000 that Kloss had recovered in the CRT termination action. Engel collected $121,545 for his work in terminating the CRT.
¶29 ODC aptly describes Engel’s justification for revising the CRT termination fee agreement as “hard to pin down.” These justifications range from having exhausted his $20,000 retainer in the separate Edward D. Jones tort case to some sort of illusory tax advantage for Kloss. The Commission nevertheless determined that Engel’s fees were not excessive when “[t]aken as a whole.” Taking Engel’s fees “as a whole” requires the Commission to merge the work that Engel performed in terminating the CRT with the work that Engel performed in the following years in the separate Edward D. Jones tort case. The parties signed separate fee agreements for each case. The two separate fee agreements specified the work to be performed by Engel and specified the fee that Engel would receive for his services in each matter.
¶30 We cannot agree with the Commission’s conclusion that Engel’s fees were not excessive, even when “taken as a whole.” Engel received $121,545 for an uncontested trust termination proceeding. He also received approximately $175,000 from Kloss for his work in the Edward D. Jones tort litigation and his brief representation of Kloss in a conservatorship proceeding. The tort case settled with Edward D. Jones agreeing to pay $150,000 to Kloss. Engel’s lack of transparency in his accounting practices makes it nearly impossible to determine whether Engel’s fee swallowed Kloss’s entire recovery. We need not analyze the reasonableness of Engle’s fee in the Edward D. Jones tort litigation, however, as that matter presently is not before us.
¶31 Engel further justifies the size of the fee for his work in pursuing the uncontested dissolution of the CRT based on the alleged aggressive litigation tactics employed by counsel for Edward D. Jones in the separate tort litigation, including a petition for appointment of a conservator for Kloss filed by counsel for Edward D. Jones. Kloss, ¶ 14. During the discovery process, Robert James (James), counsel for Edward D. Jones, learned that Kloss’s estate had been depleted of more than $800,000 under Parrent’s management, with over $400,000 being paid to Parrent and Engel for their services. Kloss, ¶ 5. James sought appointment of an outside conservator for Kloss. James filed the petition separately and in a different court from the Edward D. Jones tort litigation.
¶32 Engel fails to inform, however, that he first changed the fee agreement for terminating the CRT on February 1, 2000. James did not file a petition for appointment of a conservator for Kloss until June 12, 2003. Moreover, Engel never sought to change the fee agreement for the Edward D. Jones tort litigation. In fact, Engel sent Parrent a bill, dated March 7,2000, which showed a balance of $3,812.79 for the original $20,000 retainer paid by Kloss in the Edward D. Jones tort case. Engel nevertheless had deemed it appropriate, a month earlier, to modify the CRT termination agreement.
¶33 The Commission’s decision allows Engel to merge fee agreements for two separate matters into a single, indecipherable whole. Engel provides an excuse without explanation for each maneuver undertaken by him to increase his fee for work already performed and for which Kloss already had paid. The modified fee agreement for the CRT termination mentions nothing about payment to Engel for legal services in the separate Edward D. Jones tort litigation. Engel’s fee of $121,545 in an uncontested proceeding to terminate the CRT cannot be deemed reasonable under any circumstances. We conclude that Engel violated MRPC 1.5.
¶34 Whether Engel violated Rules 1.15 and 1.18, MRPC, by failing to deposit retainer fees in an IOLTA or client trust account.
¶35 Engel received a $20,000 retainer from Kloss in accordance with the October 27,1998, fee agreement. Kloss also paid Engel a $50,000 retainer in January 2002 that Engel claims to have applied to his representation of Kloss in the James conservatorship proceeding. Engel deposited both retainer funds into his operating account. Engel testified that he did not need to place the funds in a trust account because he received the payments as “retainer, engagement fees” that he would earn within a short period of time.
¶36 The Commission concluded that Engel exercised good faith judgment in accordance with Rule 1.18(c)(2)(C), MRPC, in anticipating that the $20,000 retainer had been or would be earned in a short period of time, and, therefore, not subject to the rule’s requirement that such funds be placed in a trust account. ODC counters that the Commission misinterpreted Rule 1.18(c)(2)(C), MRPC, and overlooked entirely the $50,000 retainer that Engel also deposited in his operating account.
¶37 All client funds must be deposited into either an IOLTA trust account or “a separate interest-bearing account for a particular client’s matter with the net interest paid to the client.” Rule 1.18(c)(3), MRPC. The choice whether to place the funds in an IOLTA account or a client trust fund depends on the amount of the fund or the length of time that the amount of funds are to be held. Client funds deemed nominal in amount or held for a short period of time must be deposited in an IOLTA account. Rule 1.18(c)(2)(A), MRPC. Client funds that are not nominal in amount or that are to be held for a long period of time, by contrast, may be deposited in a client trust fund. Rule 1.18(c)(3), MRPC.
¶38 Engel seems to argue, and the Commission seems to accept, that a third category exists for soon-to-be-earned fees. Engel contends that retainers that represent soon-to-be-earned fees may be deposited directly into a lawyer’s operating account. We disagree. The rules provide no option for placing client funds directly into a lawyer’s operating account.
¶39 The decision as to whether a client’s funds are nominal in amount or to be held for a short period of time rests solely within the sound judgment of the lawyer. A lawyer who exercises good faith judgment in determining whether client funds are nominal in amount or to be held for a short period of time shall not be charged with professional misconduct or ethical impropriety related to such decision. Rule 1.18(c)(2)(C), MRPC. Engel could have decided that the $20,000 and $50,000 retainers were to be held for a short period of time in light of his claim that he soon would earn them. In that case, however, Engel should have deposited the retainers in an IOLTA account. The rules provide no option for depositing a client’s retainer directly into a lawyer’s operating account.
¶40 Rule 1.18, MRPC, when read in its entirety, affords a lawyer a certain amount of discretion in determining whether a client’s funds must be placed in an IOLTA account or a client trust fund. Thus, Engel might have faced a legitimate choice between whether to deposit the retainers in an IOLTA account or a client trust account. The rule does not give the lawyer the option, however, of placing the client’s funds in the lawyer’s operating account. In fact, Rule 1.15, MRPC, forbids the commingling of such funds. The rule requires a lawyer to hold his client’s property in connection with representation separate from the lawyer’s own property.
¶41 Engel deposited the $20,000 and $50,000 retainers into his operating account rather than depositing the funds in an IOLTA account or a client trust account. This act violates Rules 1.15 and 1.18, MRPC. We cannot accept, and the rules do not condone, Engel’s explanation that he soon would earn the funds, and thereby justify his decision to place the client funds in his operating account.
¶42 Whether Engel violated Rule 1.7, MRPC, by engaging in a conflict of interest.
¶43 Rule 1.7, MRPC, forbids a lawyer from representing a client if the representation of that client will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and the client consents after consultation. ODC argues that Engel violated Rule 1.7, MRPC, by representing Parrent in a 1998 petition before the district court for his appointment as conservator of Kloss’s estate. ODC contends that such representation constituted a conflict of interest because Engel’s representation of Parrent was directly adverse to his representation of Kloss.
¶44 The Commission concluded that no conflict of interest had occurred under Rule 1.7, MRPC, by Engel’s brief representation of both Kloss and Parrent in a 1998 conservatorship petition filed by Engel. No court ever appointed Parrent as conservator and, from the record, it appears that Engel and Parrent have not further pursued the matter. The Commission also considered that Engel’s efforts in the 1998 conservatorship proceeding may have constituted a legitimate tactical move in the separate Edward D. Jones tort litigation. Our review of the evidence indicates insufficient support for ODC’s claim that Engel violated Rule 1.7, MRPC.
¶45 Whether Engel violated Rules 1.14, 2.1, 8.4(c), MRPC, by failing to advise his client that a relative had mismanaged her affairs.
¶46 ODC contends that Engel knew that Parrent had not acted in the best interest of Kloss, and, therefore, violated the duties imposed on a lawyer under Rules 1.14, 2.1, 8.4(c), MRPC. Rule 1.14, MRPC, sets forth a lawyer’s responsibility in dealing with a client who lacks the mental ability to make decisions in connection with representation. Rule 2.1, MRPC, outlines the lawyer’s role as an advisor, stating that a lawyer “shall exercise independent professional judgment and render candid advice.” Rule 8.4(c), MRPC, prohibits a lawyer from engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
¶47 No clear and convincing evidence supports the claim that Kloss suffered from a mental disability. Rule 1.14, MRPC, does not apply, therefore, to Engel’s representation of Kloss. Our review of the record also reveals a lack of clear and convincing evidence to support a finding that Engel had violated Rules 2.1 and Rule 8.4(c), MRPC.
CONCLUSION
¶48 Engel violated Rule 1.5, MRPC, by charging an unreasonable fee for his legal services in the CRT termination. Engel also violated Rules 1.15 and 1.18, MRPC, by depositing client funds into his operating account.
ORDER
THEREFORE IT IS ORDERED:
¶49 1. We reject the Commission’s recommendations as to Counts One and Two.
¶50 2. We adopt the recommendations of the Commission as to Counts Three and Four.
¶51 3. We remand this matter to the Commission for its consideration and recommendation of an appropriate sanction for Engel’s violation of Rules 1.5, 1.15, and 1.18, MRPC.
¶52 4. The Clerk of this Court is directed to mail copies of this Order to Joseph Engel, III, by certified mail, retrun receipt requested, and by ordinary mail to Joseph Engel’s attorney, the Chairman and the Secretary of the Commission on Practice, the Office of Disciplinary Counsel, and the Executive Director of the State Bar of Montana.
DATED this 17th day of July 2007.
/S/KARLA M. GRAY
/S/BRIAN MORRIS
/S/JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/JAMES C. NELSON
/S/JIM RICE
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 The genesis of this dispute is a solid waste transportation certificate issued by the Montana Public Service Commission (PSC, the Commission or Agency) in 1977 to Suhr Transportation. Suhr sold the certificate to Jim’s Excavating in 1992 and Jim’s transferred it to WWSS Inc. in 1993. MacKenzie Disposal bought it from WWSS in 1999. The PSC approved each transfer. Montana Solid Waste Contractors (MSWC) and Allied Waste Services (Allied), alleged that Suhr, Jim’s and WWSS failed to comply with the applicable rules and the PSC failed to enforce those rules. While they argued that all three previous owners violated the rules, they emphasized the alleged failings of WWSS. As a result of these violations MSWC and Allied posited that MacKenzie’s certificate was invalid at the time it was transferred to MacKenzie and should be revoked.
¶2 After a contested hearing proceeding before the PSC, the PSC determined, among other things, that MacKenzie’s certificate is valid, that MacKenzie was, and had been, operating within the scope of authority granted by Certificate 9265, and that it could not revoke the certificate based on any alleged or actual violations by previous holders of the certificate. MSWC and Allied appealed the PSC’s Final Order to the First Judicial District Court, Lewis and Clark County. The District Court affirmed the PSC’s Order. MSWC and Allied appeal the District Court’s Order on Petition for Judicial Review. We affirm.
ISSUE
¶3 MSWC and Allied present several issues on appeal. We conclude, however, that the dispositive issue is whether the PSC has the authority to revoke MacKenzie’s certificate under the circumstances presented in this case.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Montana motor carriers are divided into four classes-A, B, C and D. Class D motor carriers operate motor vehicles transporting garbage, or solid waste. Under § 69-12-314, MCA, Class D carriers must conduct their commercial operations pursuant to a “certificate of public convenience and necessity” issued by the PSC. Certificate 9265 is such a certificate.
¶5 Montana Solid Waste Contractors is a Montana non-profit corporation and trade association established in 1972 and located in Helena, Montana. Its members are private solid waste transportation businesses who operate throughout Montana under Class D certificates issued by the Montana Public Service Commission. Allied Waste Services, a Delaware corporation authorized to do business in Montana, owns and operates solid waste transportation businesses in Montana, including Billings. It conducts its business under Class D certificates issued by the PSC. The PSC is the head of the Montana Department of Public Service Regulation (Department). Section 2-15-2601, MCA. The Department administers the laws, rules and orders regulating motor carriers, including Class D motor carriers which transport solid waste. The PSC supervises, monitors, and regulates Class D motor carriers. It has original jurisdiction over complaints lodged by members of the regulated community. MacKenzie Disposal, Inc. is a Montana corporation presently transporting solid waste in and around Billings, Montana, under Class D Certificate 9265.
¶6 Certificate 9265 was originally issued to Suhr Transportation in 1977. In 1992 the PSC authorized transfer of the certificate to Jim’s Excavating. Jim’s Excavating, in turn and with PSC approval, sold the certificate to WWSS in 1993. In August 1999 WWSS and MacKenzie applied for PSC approval allowing WWSS to sell the certificate to MacKenzie. Allied filed a protest to the proposed transfer. MacKenzie moved to dismiss the protest and in November 1999 the PSC approved the transfer over Allied’s protest.
¶7 On January 14, 2000, MSWC and Allied jointly filed an initial complaint with the PSC which was subsequently amended on January 31, 2000. MSWC/Allied sought an order from the PSC revoking MacKenzie’s Class D permit arguing, among other things, that the original permit was issued to WWSS in violation of law and the permit should have been voided for dormancy prior to being transferred to MacKenzie. The PSC did not serve MacKenzie with the joint complaint. In March 2001 the PSC sua sponte dismissed MSWC’s and Allied’s complaint. It ruled in part that the Class D permit was properly issued to WWSS and was not invalidated by WWSS inactivity. It also ruled that successor MacKenzie was operating in full compliance with the certificate.
¶8 In April 2001 MSWC/Allied filed their initial petition for judicial review in the District Court asserting, among other things, that the PSC (1) denied them their constitutional and statutory right to a contested case hearing, (2) refused to enforce applicable statutes and rules by failing to serve their joint complaint on MacKenzie, (3) wrongfully dismissed their complaint sua sponte, and (4) denied MSWC/Allied their right to due process.
¶9 In February 2002 the parties stipulated to remand the matter to the PSC for a contested case hearing. The District Court issued an order remanding the case. The order specified that the following issues, among others, would be addressed in the contested case hearing: (1) whether Certificate 9265 should be deemed lapsed for non-use because WWSS and possibly other predecessor owners allegedly failed to comply with applicable hauling laws and regulations, (2) whether predecessor owners and the PSC complied with applicable statutory and regulatory provisions governing temporary suspensions of Class D hauling certificates and filing of annual reports, as such requirements impact a determination of whether a certificate is used on a “regular” basis, and (3) what MacKenzie, the previous owners and the PSC believed as of October 1999 was the territorial scope of service authorized by Certificate 9265 as it pertained to a determination of compliance with the “regular use” requirements.
¶ 10 Upon remand, MSWC/Allied filed their second amended complaint before the PSC. This complaint was served on MacKenzie and MacKenzie filed an answer. In its answer it asserted numerous affirmative defenses, one of which was the applicability of a two-year statute of limitations. MSWC and Allied filed a consolidated brief arguing that MacKenzie was bound by the issues defined in the Stipulation Order and could not circumvent the Stipulation Order by invoking a statute of limitations defense.
¶11 A contested case hearing was held in January 2003 and continued in September and October 2003. Dining the hearing, the hearing officer received evidence of events that occurred outside of the argued statute of limitations with the caveat that the statute of limitations issue was still under advisement and could be used to subsequently eliminate consideration of earlier events.
¶12 In October 2004 the PSC again dismissed MSWC/Allied’s complaint. In its order, the Commission concluded that a three-year statute of limitations applied to the proceeding and therefore excluded actions by the parties that occurred before January 14, 1997. It specifically held that WWSS did not violate any applicable statutes or Commission rules and orders between January 1997 and 1999 when it sold the certificate to MacKenzie. It also held that it did not have the authority to revoke MacKenzie’s permit based on the conduct or activities of a prior certificate holder when no complaint or revocation proceeding was pending against the prior owner at the time of the transfer. Lastly, the PSC determined that MacKenzie’s certificate was valid because MacKenzie was operating within the scope of authority granted under the certificate.
¶13 In November 2004 MSWC/Allied filed another petition for judicial review with the First Judicial District Court. They argued numerous errors by the PSC including, but not limited to, the Commission’s (1) refusal to revoke the certificate based on WWSS’s inactivity at the time WWSS held the certificate, (2) reliance on unwritten policies to justify declining to revoke the certificate, (3) failure to monitor and enforce applicable statutes and regulations pertaining to Class D certificate holder compliance, (4) application of a three-year statute of limitations to the scope of the contested case hearing, and (5) failure to make requested findings of fact.
¶14 The District Court concluded that the PSC (1) appropriately applied a three-year statute of limitations, (2) did not abuse its discretion in concluding that WWSS did not violate any applicable statute, rule or commission order, (3) did not err in deciding that WWSS’s use of the certificate was not "incidental,” and (4) did not err in determining that Certificate 9265 could be used to transport Class D material from outside of Billings through the city and to the Billings landfill. The District Court also held that MSWC and Allied were not denied their right to due process. Having expressly found that WWSS did not violate any applicable law or orders, the court declined to address the PSC’s determination that the Commission could not void the certificate based on alleged violations by prior owners.
¶15 MSWC and Allied filed a timely appeal, once again seeking revocation of MacKenzie’s certificate.
STANDARD OF REVIEW
¶16 Pursuant to the Montana Administrative Procedure Act (MAPA), a district court reviews an administrative agency’s decision in a contested case to determine whether the findings of fact are clearly erroneous and whether the agency correctly interpreted the law. Baldwin v. Board Of Chiropractors, 2003 MT 306, ¶ 10, 318 Mont. 188, ¶ 10, 79 P.3d 810, ¶ 10 (citation omitted). The standard of review for an agency decision is set forth in § 2-4-704(2), MCA, which provides:
The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(b) findings of fact, upon issues essential to the decision, were not made although requested.
¶17 A finding is clearly erroneous if it is not supported by substantial evidence or, if it is supported by substantial evidence, because the agency misapprehended the effect of the evidence. Moreover, even if substantial evidence exists and the effect of the evidence has not been misapprehended, the court may still decide that a finding is clearly erroneous when “a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” Weitz v. Dept. of Nat. Resources & Conserv., 284 Mont. 130, 943 P.2d 990 (1997). 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. Roos v. Kircher Public School Bd., 2004 MT 48, ¶ 7, 320 Mont. 128, ¶ 7, 86 P.3d 39, ¶ 7.
DISCUSSION
¶18 As noted above, MSWC and Allied raised numerous issues on appeal and argued a multitude of errors on the part of the PSC and the District Court. Our review of the record indicates that some of these issues and allegations of error may be justified. Of particular concern is the allegation that the PSC failed to diligently execute the Commission’s obligations to oversee the activities of the owners of Certificate 9265 throughout its existence. Troubling, too, is the assertion that the PSC engaged in surreptitious negotiations or revisions to certificate terms and elevated unwritten policy over written law resulting in Agency decisions that were detrimental to members of the regulated community. However, for the reasons discussed below we conclude that most of the raised issues are moot. While we do not therefore substantively address these allegations of misconduct on the part of the PSC, we, nonetheless, caution that in the future the Commission must vigilantly comply with its own rules and regulations as failure to do so will undermine the integrity of the PSC and the certification process, and potentially result in unfair and prejudicial treatment of certificate holders or certificate applicants.
¶19 The dispositive issue is whether the PSC has the authority to revoke MacKenzie’s certificate under the circumstances presented in this case. MSWC and Allied argue that revocation is justified based on (1) the conduct of a previous owner, (2) the failure of the PSC to comply with its own rules and regulations, and (3) MacKenzie’s “knowledge” that WWSS did not comply with the Commission’s rules. We note initially that it is undisputed that MacKenzie, since its purchase of the certificate, has fully complied with the terms of the certificate and all applicable laws and orders. We therefore turn to the question of whether the PSC has authority to revoke the certificate for failure of a previous owner to comply with applicable laws.
¶20 Just as the statutes set forth the process under which the PSC can issue a Class D certificate, the statutes provide the method by which it can suspend or revoke a certificate.
¶21 Section 69-12-210, MCA, states:
(1) The commission has jurisdiction to conduct investigations and hear complaints to determine whether a motor carrier has violated any of the commission’s rules or orders or any provision of this chapter.
(2) Following an opportunity for hearing and upon a finding that a motor carrier has violated any of the commission’s rules or orders or any provision of this chapter, the commission may suspend or revoke the motor carrier’s certificate of operating authority or impose any penalty provided for under 69-12-108.
Section 69-12-108, MCA, subjects a motor carrier regulated under Title 69 of the Montana Code Annotated to fines and civil penalties if found to be in violation of applicable rules, statutes or Commission orders. The statutes grant a right of review to a certificate holder accused of violating or refusing to observe the applicable statutes or PSC rules or orders. Section 69-12-327, MCA, states:
(1) If it appears that a certificate holder is violating or refusing to observe any of the commission’s orders or rules or any provision of Title 69, as amended, the commission may issue an order to the certificate holder to show cause why the certificate should not be revoked. If the certificate holder fails to appear to show cause as ordered by the commission, the certificate may be revoked without a hearing. If the holder does appear to show cause, the commission may:
(a) dismiss the proceeding, notifying the holder that the certificate is not revoked; or
(b) hold a hearing on the question of revocation, notifying the holder of the time and place for the hearing.
(2) The holder of any such certificate or privilege shall have all rights of rehearing and review as to such order of the commission as is provided in this chapter.
¶22 The PSC’s decision was two-fold. It first determined whether the applicable statutes were “self-executing.” In other words, assuming WWSS was non-compliant with the applicable rules, did its noncompliance result in the “death” of the certificate and an automatic forfeiture. Second, and in the event the rules were not self-executing, the Agency considered whether it had the authority to suspend or revoke MacKenzie’s certificate based on WWSS’s conduct.
¶23 The PSC analyzed the above-referenced statutes as well as others and concluded that the statutes were not “self-executing.” Sections 69-12-108, 210, and 327, MCA, all of which impose penalties on Class D carriers, require the PSC to take some action to implement these penalties-the penalties do not take effect automatically upon some proscribed act of the carrier. As a result of this conclusion, the PSC determined that even if WWSS had violated the applicable statutes the certificate would not have automatically, and without PSC action, been forfeited, suspended, or revoked; therefore, the certificate would not have been “dead” at the time it was transferred to MacKenzie. The PSC noted that this interpretation was consistent with the Interstate Commerce Commission’s (ICC) treatment of similar certificates as held in Smith Brothers, Revocation of Certificate, 33 M.C.C. 465 (1942). In Smith Brothers, the ICC was considering the revocation of a certificate. Certain complainants contended that Smith Brothers had abandoned certain of their operations, and that, due to a provision in the certificate which required that the carrier continue to perform service in conformity with the certificate, the rights of Smith Brothers were automatically forfeited for dormancy when they ceased to perform such services. The ICC determined that a certificate, once issued, could be terminated only by a formal proceeding and action by the issuing agency. Hergott v. Nebraska State Ry. Commission, 15 N.W. 2d 418 (Neb. 1944).
¶24 We agree with the PSC’s interpretation. “Self-executing” simply means “taking effect immediately without the need of any type of implementing action.” Black’s Law Dictionary 1364 (7th ed., West 1999). The statutes above expressly provide for agency action before any penalty can be imposed; therefore they are not self-executing. See, e.g., Crane v. State, 200 Mont. 280, 650 P.2d 794 (1982); Kraebel v. Michetti, (Not Reported in F. Supp.), 1994 WL 455468, 1994 U.S. Dist. LEXIS 11796. Under the applicable statutes, even assuming prior holders of the certificate did not comply with the applicable laws, Certificate 9265 continued to be a viable certificate and was not forfeited. As such, it could be lawfully transferred to a subsequent buyer. Moreover, not only are the statutes not self-executing, but the language of the statutes requires a conclusion that revocation of MacKenzie’s certificate would have to be premised upon MacKenzie’s failure to comply with relevant statutes, rules or orders, not any alleged or actual failings of a previous certificate holder. See, e.g., § 69-12-327, MCA.
¶25 Having determined that the penalty statutes are not self-executing and that revocation of a certificate can occur only through PSC action, we next address whether the PSC’s alleged misconduct or failure to take enforcement action justifies revocation of MacKenzie’s certificate. We conclude this is a non-justiciable and, thereby, moot issue. A justiciable controversy is one upon which a court’s judgment will effectively operate, as distinguished from a dispute invoking a purely political, administrative, philosophical or academic conclusion. Where a court’s judgment will not effectively operate to grant relief, the matter is moot. Clark v. Roosevelt County, 2007 MT 44, ¶ 11, 336 Mont. 118, ¶ 11, 154 P.3d 48, ¶ 11 (citation omitted). As indicated above, the applicable statutes allow the PSC to revoke a certificate based solely on the certificate holder’s non-compliance. Therefore, even if MSWC’s and Allied’s allegations of PSC misconduct were correct, neither we nor any other court could lawfully revoke a compliant certificate holder’s certificate based on such misconduct. Simply put, there is no relief that can be granted for these allegations within the circumstances of this case.
¶26 MSWC and Allied also assert that the PSC incorrectly expanded the limits of the permit to include transporting waste that originated from outside of Billings to the Billings’ landfill. Again, the misconduct being alleged is that of the PSC which, as explained above, even if assumed to be true is not justification for revoking MacKenzie’s permit. It is undisputed that the scope of MacKenzie’s certificate currently authorizes MacKenzie to transport waste originating from outside of Billings to the Billings’ landfill. Therefore, we cannot revoke the certificate on this ground.
¶27 Lastly, we are unpersuaded by MSWC’s and Allied’s argument that MacKenzie knew, or should have known, that WWSS’s certificate was “dormant” at the time it purchased the certificate. As explained above, even actual misconduct or non-compliance by a certificate holder does not automatically render a certificate dormant, suspended or revoked. Restrictions on the use of a certificate or penalties for failure to comply with rules must be affirmatively imposed by the Commission. As such, MacKenzie’s knowledge of WWSS’s conduct or activity during the time WWSS held the certificate is irrelevant. The PSC had oversight authority over WWSS, not MacKenzie. At the time MacKenzie purchased the certificate, it was assured by the PSC that it was a viable certificate that would allow MacKenzie to conduct its desired business. Therefore, MacKenzie’s alleged knowledge of WWSS’s conduct is not ground for revocation of its certificate.
¶28 Having determined that the PSC does not have the authority to revoke a compliant certificate holder’s certificate for a past holder’s non-compliance or for PSC misconduct, we need not reach the correctness of the PSC’s application of a three-year statute of limitations.
¶29 While the District Court declined to address the issue that we find dispositive, the court nonetheless correctly affirmed the PSC’s order. We will uphold a district court that reached the right result even if for a different reason. Bitterroot Inter. Sys. v. West. Star Trucks, Inc., 2007 MT 48, ¶ 43, 336 Mont. 145, ¶ 43, 153 P.3d 627, ¶ 43 (citation omitted).
CONCLUSION
¶30 For the foregoing reasons, we affirm the District Court’s and the PSC’s Orders.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, RICE, MORRIS, NELSON and WARNER concur.
The certificate has had several numerical identities since its inception (e.g., Certificate 541, Certificate 9135) but is currently designated Certificate 9265 and will be referred to as such in this Opinion.
The original petitioner in this case was Browning-Ferris Industries Waste Systems, or BFI. During the pendency of these proceedings Allied Waste Industries, Inc. purchased BFI and changed the name. For ease of reference, we will refer to both BFI and Allied as Allied.
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JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 Jeffrey Scott Jordan (Jordan) appeals the order from the Tenth Judicial District Court, Fergus County, denying his petition for post conviction relief. We reverse and remand to Judge William Neis Swandal, the original sentencing judge in this case.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Jordan pled guilty to two counts of sexual assault on a minor in violation of § 45-5-502, MCA. Judge E. Wayne Phillips originally presided over Jordan’s case, but had been substituted early in the proceedings. Judge William Neis Swandal assumed jurisdiction. Judge Swandal accepted Jordan’s guilty plea and sentenced Jordan to serve two consecutive 12-year terms at the Montana State Prison, with Jordan becoming eligible for parole only after he completed phases 1 and 2 of the sexual offender treatment program. The Sentence Review Division of the Supreme Court of Montana amended Jordan’s sentence to 20 years with eight years suspended on each count with the two counts running consecutively.
¶3 Jordan filed pro se a petition for post conviction relief on April 14, 2005, in the Tenth Judicial District. Judge Phillips appointed counsel to represent Jordan in the post conviction proceedings and simultaneously ordered the Respondent State of Montana (State) to file a response. The State urged the court to review the record and determine that Jordan is not entitled to relief. Judge Phillips dismissed Jordan’s petition two days after the State filed its response based on the court’s determination that the petition did not comply with § 46-21-104(2), MCA. This statute requires the petitioner to attach to the petition “a supporting memorandum, including appropriate arguments and citations and discussion of authorities.”
¶4 Jordan’s appointed counsel finally filed a brief in support of Jordan’s petition for post conviction relief on March 9, 2006. Jordan’s counsel amended the petition on March 30, 2006. Judge Phillips dismissed Jordan’s post conviction claim. The court determined that it already had dismissed Jordan’s first petition for post conviction relief, and, therefore, could not treat Jordan’s subsequent claim as an amended petition. The court instead viewed Jordan’s claim as a separate, second petition. The court reasoned that § 46-21-105, MCA, prohibits the filing of a second petition for post conviction relief. Jordan appeals.
STANDARD OF REVIEW
¶5 We review a district court’s denial of a petition for post conviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Hardin v. State, 2006 MT 272, ¶ 11, 334 Mont. 204, ¶ 11, 146 P.3d 746, ¶ 11.
DISCUSSION
¶6 Jordan argues that Judge Phillips lacked jurisdiction to deny his petition for post conviction relief. Jordan claims that Judge Phillips did not impose his sentence, and, thus, cannot rule on his petition for post conviction relief. Section 46-21-101(1), MCA, provides that a petition for post conviction relief must be filed in “the court that imposed the sentence.” Jordan requests that we remand this case to Judge Swandal, who sentenced Jordan in the underlying criminal matter.
¶7 The State responds that § 46-21-101(1), MCA, simply requires the party to petition “the court” that imposed the sentence rather than the particular judge that presided over the petitioner’s sentencing. The State argues that Jordan’s interpretation of § 46-21-101(1), MCA, would preclude post conviction relief in cases where the sentencing judge had died or retired before the petitioner filed for relief.
¶8 We construe statutory language by its plain meaning. If the words are clear and unambiguous then no further interpretation is required. Small v. Board of Trustees, 2001 MT 181, ¶ 21, 306 Mont. 199, ¶ 21, 31 P.3d 358, ¶ 21. If the plain words of the statute are ambiguous, we interpret the statute according to the intent of the legislature. Small, ¶ 21.
¶9 Section 46-21-101(1), MCA, directs a petitioner to file a petition for post conviction relief in “the court that imposed the sentence.” The statute’s plain language provides no guidance, however, as to which judge may preside over the post conviction proceeding once the petition is filed in the proper court. We must look to other sources of statutory construction to determine the legislative intent. Small, ¶ 21.
¶10 We discussed in Coleman v. State, 194 Mont. 428, 633 P.2d 624 (1981), the history and purpose of § 46-21-101(1), MCA, in the context of whether a sentencing judge may recuse himself from a subsequent post conviction proceeding. We determined that the statute’s requirement that a post conviction petition be filed in the court that imposed the sentence serves to: 1) alleviate the burden of the district court at the place of confinement; 2) reduce the cost of the proceeding as most of the witnesses to the post conviction proceeding likely reside in the place where trial and sentencing occurred, and; 3) allow the judge with the most familiarity of the facts and circumstances surrounding the case to review the post conviction claim so as to promote efficiency in the administration of justice. Coleman, 194 Mont. at 434, 633 P.2d at 628.
¶11 The sentencing judge constitutes the judge with the most familiarity of the testimony, briefs, motions, and trial court records involving the underlying criminal action that remains under collateral attack in the subsequent post conviction proceeding. Coleman, 194 Mont. at 435, 633 P.2d at 628. The sentencing judge should preside over the subsequent post conviction action to avoid the great delay and burden that would be imposed on the courts if a judge other than the sentencing judge had to become familiar with the record for the purposes of conducting a post conviction evidentiary hearing. Such a delay can be justified only “by the strongest showing of materiality and unavailability of evidence sought to be adduced from the sentencing judge.” Coleman, 194 Mont. at 435, 633 P.2d at 628.
¶12 Jordan complied with the requirements of § 46-21-101(1), MCA, by filing his petition for post conviction relief in the court that imposed his sentence. The assignment of Jordan’s post conviction case to the proper judge fell to the court once Jordan filed the petition in the proper court. Coleman requires the court to assign Jordan’s post conviction matter to Judge Swandal. Judge Swandal sentenced Jordan in the underlying criminal action. As a result, Judge Swandal possessed the most familiarity of the testimony, briefs, motions, and trial court records involving Jordan’s underlying criminal action. Nothing in the record indicates that Judge Swandal would have been unavailable to preside over Jordan’s post conviction proceeding and Jordan presented no showing that would have permitted Judge Swandal’s recusal. Coleman, 194 Mont. at 435, 633 P.2d at 628.
¶13 Moreover, the substitution of Judge Phillips in Jordan’s underlying criminal action would carry over to Jordan’s post conviction proceeding. Section 3-1-804, MCA, precludes a substituted district judge from acting “on the merits of the cause” or deciding any “legal issues therein.” A substitution of a trial court judge does not evaporate suddenly in a subsequent post conviction proceeding that involves the same parties, the same witnesses, and the same factual background as the underlying case from which the judge already had been removed. Judge Phillips’s substitution in Jordan’s criminal action also prevents him from presiding over Jordan’s post conviction proceeding.
¶14 We reverse Judge Phillips’s orders of June 8, 2005, and June 20, 2006, dismissing Jordan’s petition for post conviction relief. We remand Jordan’s post conviction claim for consideration by Judge Swandal. We need not reach, therefore, Jordan’s substantive claims regarding Judge Phillip’s denial of his petition for post conviction relief.
JUSTICES LEAPHART, NELSON, WARNER and RICE concur.
|
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Wade, O. J.
This is air appeal from an order dissolving an attachment, because of the insufficiency of the undertaking, and the refusal of the court to permit a new undertaking to be filed.
The undertaking given was not signed by the plaintiff, but was signed by two sureties on his behalf, and contained the following condition: “That if the-defendant recover judgment in said action, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the said defendant, and all damages he may sustain by the wrongful suing out of the attachment.”
This was the condition required by section 180 of the code, prior to the amendment of February 23, 1881 (12th Sess. Laws, 9). The amended section requires the following condition to an undertaking in attachment: ‘ ‘ The condition of such undertaking shall be to the effect that if the defendant recover judgment, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all damages.”
1. The condition contained in the amendment to the section is broader and of wider scope than that required by the original section. A wrongful act implies malice. 1 East, 563; 2 Rap. Law Die. 1371, title “Wrongfully.” Private wrongs are civil injuries. A wrongful act is something that creates a liability, because of the wrong. A person might suppose that he was entitled to an attachment and be honestly mistaken. He might procure an attachment thinking his right was perfect, and subsequently ascertain that he was not entitled to it. In such a case there would be no wrongful act or intent on his part, but his sureties, on an undertaking drawn under the amended section, would be liable, while, if the undertaking was conditioned as provided for in the original section, they would not be liable. Under the amended section, the sureties are liable in any event, if it is finally held that the plaintiff was not entitled to an attachment; while under the original section they are not liable unless the plaintiff wrongfully procured the attachment to issue. These provisional remedies are purely statutory, and the requirements of the statute must be substantially complied with in all material particulars.
2. The statute provides that, before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, with two or more sufficient sureties. 12th Sess. L. 9. An undertaking on the part of the plaintiff means an undertaking for him or on his behalf, and it is not necessary to the validity of such an undertaking that it be signed by the plaintiff. The statute does not require that he sign it, but that it be signed by two sufficient sureties on his behalf, or for him. The undertaking in attachment is not a bond with sureties.
3. The fourteenth section of the code provides that the court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by correcting a mistake in any respect. The purpose of requiring an undertaking in attachment is security to the defendant whose property has been seized by process of law. And it is not very material to the defendant when the undertaking is filed, provided this purpose is accomplished. Before the writ can issue, the clerk must require a written undertaking on the part of the plaintiff. But the clerk is not a judicial officer, and suppose he accepts an undertaking that is defective in form or otherwise insufficient. Are the rights of the plaintiff thereby concluded? Does he forfeit the fruits of his vigilance by reason of a clerical or other mistake? We think not. The one hundred and fourteenth section of the code is peculiarly applicable to cases of this kind. If the affidavit in attachment is found to be defective, it may be amended and the rights of the party saved. And for a like reason, if the undertaking is deficient, a new one may be given. The defendant ought not to object to the filing of a new undertaking for his benefit. A summons may be amended so as to make it conform to law. Polack v. Hunt, 2 Cal. 194. If an injunction is sought to be dissolved because of defect or insufficiency of the undertaking, the court or judge may require a new one to be given.
Drake on Attachments says: “Under a statute which provides that ‘the plaintiff, before or during the trial, should be permitted to amend any defects of form in the original papers,’ it was held that a defective bond might be amended by the substitution of a new and perfect one, and that a defect in the bond would not be a sufficient cause for quashing the proceedings, unless an opportunity were given to the plaintiff to execute a perfect bond and he declined doing so.” Lowry v. Stowe, 7 Porter, 483; Planters’ & Merchants’ Bank v. Andrews, 8 Porter, 404; Lowe v. Derrick, 9 id. 415; Tevis v. Hughes, 10 Mo. 380; Scott v. Macy, 3 Ala. 250; Lee v. Vail, 3 Ill. 473 (2 Scam.); Wood v. Squires, 28 Mo. 528; Beardslee v. Morgan, 29 id. 471; Oliver v. Wilson, 29 Ga. 642.
The provision of this statute is no broader than our own, which authorizes the amendment of any pleading or proceeding, for the correction of any mistake in furtherance of justice. The application for a writ of attachment is a proceeding to secure one of the remedies provided by law. And where the right to amend is given, it makes no difference whether the undei’taking be void or only defective. In either case, it is the duty of the court to permit the plaintiff to substitute a sufficient undertaking. Drake on Att. sec. 118.
The law requires an undertaking or bond on appeal, but an appeal will not be dismissed because of a defect in or insufficiency of the bond or undertaking before giving the appellant an opportunity to file a new or sufficient one. And so we hold generally that it is within the spirit and meaning of -the code to permit a plaintiff' to give a new undertaking in attachment when he finds, by a decision of the court, or otherwise, that the first undertaking is defective or in any manner insufficient.
The order dissolving the attachment is set aside, and the cause is remanded to the district court, with directions that the plaintiff have an opportunity to give such a new undertaking in attachment as the law requires.
Judgment reversed.
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Galbbaith, J.
This is an appeal from a judgment for the defendants rendered in pursuance of an order sustaining a demurrer to the complaint.
The complaint was in substance as follows, viz.: “ The district attorney of the first judicial district, in which is situate the county of Ouster, has been applied to, to bring this action, and that he has refused, so to do upon the complaint of the appellant, who therefore brings this action upon his own relation. That the respondents have intruded into the office of county commissioners of said county, and now unlawfully hold and exercise the said offices. That on the 7th-day of November, 1882, the appellant was duly elected to the office of county commissioner of said county, and that he did, within the time prescribed by law, qualify himself to hold said office, and entered upon the performance of its duties; and is still entitled to the said office and the emoluments thereof. That on or about the 1st day of May, 1882, Russell Briggs was duly appointed by the probate judge of said county as one of the commissioners thereof, to fill a vacancy, and duly qualified and entered upon the duties of the office. That on or about the 1st day of September, 1882, James B. Hubbell was duly appointed one of the commissioners of said county to fill a vacancy, who also duly qualified and entered upon the duties of the office. That on or about the 15th day of March, 1883, at the time of the alleged unlawful intrusion, while the three last named persons were in possession of and entitled to these offices, the respondents usurped and intruded into and now unlawfully hold them and withhold the same from the relator, and said Briggs and Hubbell. Wherefore the appellant asked that the respondents be ousted from said offices, and the relator, and Briggs and Hubbell, be restored thereto.”
The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
The question presented by this demurrer relates to the validity of an act of the legislative assembly of Montana territory — laws of the thirteenth regular session, page lAO — by which the offices of county commissioners of Custer county were declared.vacant; this relator and Briggs and Hubbell being the then incumbents of said offices, and the respondents appointed to fill the vacancies. The language of the statute, so far as it is necessary to state it, is as follows: “That the offices of county commissioners of the county of Ouster be, and the said offices are hereby, declared to be vacant, and no official duty shall be performed by the persons constituting the present board of county commissioners, except to make report; . . . and that William Van Gaskin, George M. Miles and Thomas J. Bryan are hereby appointed commissioners of Ouster county., The act then provided for the election upon the third Monday of April following of three commissioners of Ouster county, who, after their election and qualification, should act as said commissioners and enter upon their official duties, and thereupon the power’s and duties of said commissioners herein appointed shall cease.” The act was approved March 8, 1883.
It is claimed by the appellant that the above act is invalid, for the alleged reason that it contravenes the constitution of the United States and the laws of congress. The declaration that the act of a co-ordinate branch of the government has been done in disregard of constitutional limitations is the exercise of a solemn function, and one which courts will exert with delicacy and reluctance. An act of the legislature should not be adjudged to be in violation of the constitution except where plainly repugnant thereto. The act will be presumed to be constitutional until the contrary is clearly and satisfactorily shown. “ Plenary power in the legislature is the rule. A prohibition to exercise a particular power is the exception. In inquiring, therefore,- whether a given statute is constitutional, it is for those who question its validity to show it is forbidden.” Denio, C. J., in People v. Draper, 15 N. Y. 532. “A court cannot, declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guarantied or protected by the constitution. ” Cooley on Constitutional Limitations, 19 J.
In a case of this kind, it is only with the power of the legislature viewed in relation to the fundamental law, and not with the expediency or propriety of its legislation, that the court has to do. These are matters for the consideration of the legislature itself, when it enacts the law. The above act can only be declared invalid because it violates the constitution of the United States, or the acts of congress, or interferes with or prevents the exercise of some right conferred or protected thereby. The act of congress in relation to county officers is as follows: “ All township, district and county officers, except justices of the peace and general officers of the militia, shall be appointed or elected in such manner as may be provided by the governor and legislative assembly of each territory.” It will be observed that this act uses the term “ county officers,” thus recognizing the political division of the territory into counties, and the necessity for, and the existence of, such officers for their government. But the particular office of county commissioner is not named therein, and the creation thereof was left entirely to legislative enactment. The office of county commissioner in this territory does not exist by virtue of common law, but by statutory law. And we find that the legislative assembly, in providing for the goverment of counties, acted in accordance with both these views. It created the office of county commissioner. It provided that ‘ ‘ the powers of the county, as a body corporate and politic, shall be exercised by a board of county commissioners therefor.” R. S. 1819, p. 419, sec. 331. “The board of county commissioners shall consist of three qualified electors, any two of whom shall be competent to transact business.” The creation, therefore, of county commissioners; the manner of their selection, whether by election or appointment; the terms of the period during which they shall act; the character of the duties to be performed, and the compensation to be paid for the performance of such duties, are entirely the subject of legislative enactment. There is nothing in the above act of congress which in any way limits the power of the legislative assembly in respect to the foregoing particulars. All the above matters relating to county commissioners are, by this act. committed to the governor and legislative assembly of the territory, when acting together in a legislative capacity, to be provided for according to their discretion.
So far, therefore, as the above act of congress is concerned, this office, having been created by legislative enactment, -was wholly under legislative control. It had the power to lengthen or abridge the term of office, or to declare the office vacant and appoint another to fill the vacancy, at least in so far as to make a provisional appointment was concerned. By the enactment of the law appointing the respondents to the offices thereby declared vacant, until the commissioners thereafter to be elected assumed the duties of their office, the governor and the legislative assembly acted within the limits of the act of congress, which required that the county officers should be appointed or elected in such manner as they might provide. The governor and legislative assembly have the power to provide the manner of the appointment; therefore, they had’the power to appoint directly. The law was “the manner” of the appointments. “Where an office is created by statute, it is wholly within the control of the legislature. The term, the mode of appointment, and the compensation may be altered at pleasure, and the latter may even be taken away without abolishing the office. Such extreme legislation is not to be deemed probable in any case. But we are now discussing the legislative power, not its expediency or pro priety. Having the power, -the legislature will exercise it for the public good, and it is the sole pledge of the exigency which demands its interference.” Sanford, J., 2 Sanford, 355, 359.
We may say here in relation to the legislation in question that the presumption will be that it was had for the public good, and that the exigency of the' case required its enactment. “ The selection of officers, who are nothing more than public agents, for the effectuating of public purposes, is matter of public convenience or necessity; and so too are the periods for the appointment of such agents; but neither the one nor the other of these arrangements can constitute any obligation to continue such agents, or to reappoint them after the measures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated, or even detrimental to the well-being of the public. The promised compensation for services actually performed and accepted during the continuance of the particular agency may undoubtedly be claimed both upon principles of compact and of equity; but to insist beyond this, upon the perpetuation of a public policy, either useless or detrimental, and upon a reward for acts neither desired nor performed, would appear to be reconcilable with neither comm'on justice nor common sense.” The supreme court of the United States, per Daniel, J., in Butler v. Penna, 10 How. 402.
In Demer v. Hobart, 10 Nev. 28, Hawley, J., speaking for the supreme court, says: “ The legislature having, by the act of March 4, 1865, vested certain duties upon the lieutenant-governor, and allowed him a salary for his services, it was within the power of the legislature to take those duties and the salary away from him before the expiration of his term of office, and confer them upon another.” Connor v. The Mayor of New York, 5 N. Y. 294; Attorney-General v. Squires, 14 Cal. 13. “ The offices of lieutenant-governor and warden of the state prison were as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other. So far as the office of ex officio warden existed in relator, it was an office created by legislative act. The legislature might, at any time, direct how it should be filled, what compensation should be allowed, and provide the manner in which its duties should be discharged. In such cases, the length of the term of office is regulated by considerations which affect the public interest, without any regard to the interests of the office-holder.”
In Attorney-General v. Squires, 14 Cal. 13, supra, Baldwin, J., says: “The same power that made can destroy; unless, indeed, there be some vested right created by the act, or some right of property. So far as this office exists in the incumbent, it is an office created by legislative act. The constitution affixes no period of tenure to this office of tax collector, nor does it provide any mode of appointment. The vesting of this office in the sheriff being by legislative act, though the office cannot be destroyed by the legislature, yet the legislature, not restricted in this respect by the constitution, may direct in what manner the duties shall be discharged, and how the office may be temporarily filled. Smith v. Still-man, decided in 1852 (not reported), has been cited to show that after the legislature has created an office contemplated, as provided for by the constitution, it cannot destroy the office of the incumbent during his term. But this doctrine cannot be maintained, and is ovei’ruled in effect by the case of The People v. Haskell, 5 Cal. 357. We regard this act of the legislature, giving this office to the sheriff, as a mere legislative transfer to this officer of the duties of tax collector, and that the same power which placed them in the hands of the sheriff could divest them and place them in other hands.” In Bryan v. Cattell, 15 Iowa, 538, Wright, C. J., said: “That it is competent for the legislature to abolish an office, in-' crease or decrease the duties devolving upon the incumbent, add to or take from his salary, when not inhibited by the constitution, we entertain no doubt. We are equally clear that it is within the legislative power to add to or change the method in which vacancies may occur, and make such change applicable to existing offices and those holding them.” See, also, People v. Haskell, 5 Cal. 557; People v. Whitlock, 92 N. Y. 191; Long v. Mayor, 81 N. Y. 425; Barker v. City of Pittsburg, 1 Barr (Pa. St.), 51.
In Donahue v. County of Will, 109 Ill. 94, Walker, J., delivering the opinion o.f the court, says: “The question is then presented, whether the board of supervisors had legal authority and constitutional power to hear, determine and remove appellant from office. He claims it had not, because that could be done only by impeachment; or if not in that mode, then only by the circuit court on a proceeding in the nature of a quo ivarranto. It is urged that, under the constitution, the general assembly is powerless to pass a law conferring such power on the board of supervisors, and for that reason the order of the board is absolutely void. This depends upon whether any constitutional provision prohibits that body from the exercise of such power. . . .We are, therefore, of opinion that the settling of the treasurer’s accounts, and finding he had not settled and acccounted for moneys of the county as required by law, and that he had been and then was in arrears with the county, and removing him from office, was not judicial. And we have no doubt the general assembly had ample power to authorize the board to act, and it is legal, valid.”
It was held at the present term of this court in the case of Carland v. The Commissioners of Custer County, 5 Mont. infra, that the board of county commissioners of Custer county had authority, by virtue of power vested in it by acts of the legislature of this territory, to remove the treasurer of that county from office, and to declare the office vacant. It is true that in both of the above cases the power to remove had been delegated, but the. principle announced is, that, in the absence of a constitutional prohibition, the legislature possesses authority to delegate such power of removal. And if the legislature had the authority to delegate to the board the power of removal of the officer, it would be difficult to give any substantial reason why it could not exercise the same power directly.
In People v. Hurlbut, 24 Mich. 44, Christiancy, J., says: “As the legislature represents the public interest, and has full control of all municipal organizations as instrumentalities of government, I see no reason to doubt their power of creating such offices as they may think the public interest requires, or of filling them with such persons as thejr choose to designate in the act, except as that power is restrained by some provision of the constitution. This course of legislation may not be wise or politic, but as a question of power, I think the legislature possesses it, with the limitations above mentioned.”
There is no limitation of the power of the governor and legislative assembly, conferred by the foregoing act of congress. In the same case the same judge says: “ The next objection to the validity of the act is, that the power of the legislature is confined to directing whether officers other than judicial in cities and villages shall be elected or appointed; and at what time and in what manner the election or appointment shall be made; that in thus directing, their power' is exhausted, and they cannot make the appointment themselves. This argument is not based upon the ground that the provisions of this section were intended to confine the power of making the appointment to the common council of the city, or to any other local authority, for which only, it was intended, the legislature should provide; but it goes upon the assumption that, even admitting the power of the legislature to provide for an appointment otherwise than by the local authorities of the city, still the legislature could not itself make the appointment in the manner they have undertaken by this act to make it; their power being limited to directing the time and manner in which it should be made. Though this argument may seem plausible, I do not think the conclusion is so clear or free from doubt as to authorize us to declare the act void on this ground. If the legislature had power to provide the time and manner of the appointment, and were not confined to providing for the appointment by the local authorities, then they had the power to provide that it should be made by the governor, with or without the consent of the senate; by the legislature in joint convention; or, finally, by the legislature in the very form and manner which was adopted. And if they had the power to direct that it should be made in this way, it would be very difficult to give any substantial reason why they could not proceed to make the appointment as they did without first passing an act that it should be so made. Such an act would be but a legislative determination that the appointment should be so made; and the actual making of it in this way shows the like legislative determination. A similar exercise of power by the legislature has been upheld by the supreme court of New York. People v. Bennett, 54 Barb. 480.”
It is true that the above doctrine has not been acceded to in many instances to its fullest extent. Some eminent jurists assume to find in the very structure of our government, and in the principles which underlie our free institutions, and in the assumption in our constitutions generally of the existence of public or quasi corporations, such as counties and townships, and consequently in a recognition by them of the existence of local self-government, an implied prohibition upon the legislature to take away the right of choice, by the inhabitants of such municipalities, of their own officers, by appointments to such offices in legislative acts. But even in these instances it is generally conceded that there may he occasions and exigencies when the legislature may exercise this power. As, for example, when an appointment may be made by the legislature, “to meet the needs of a transition state, or to bridge a chasm between a new and old establishment, or to organize and put in motion a new corporate or municipal organization.” Graves, J., in People v. Hurlbut, supra.
“I have no doubt it was entirely competent for the legislature to abolish the old boards and provide for a new one to take the place of all. That would be but the ordinary exercise of legislative supervision and control in matters of municipal regulation of them. I think, also, that the legislature might make provisional appointments to put the new system in operation. The right to do this appears to me to be incident to the right to confer and recall corporate power, and rests upon the same ground as the right to provide agencies for the organization of the municipal corporation in the first place, for the apportionment of its property and debts, if its territory shall be divided and organized into two, or for the winding up of its concerns, if its charter should be taken away. There is no doubt of the right of the state to do any of these things; not by virtue of any general authority to take to itself the management of the local concerns, but because the wrong motion and modification of local government can only be provided for without confusion and injustice by the aid of the guiding and assisting hand of the authority that creates and modifies.” Cooley, J., in People v. Hurlbut, supra.
The act in question provides only for the appointment of the respondents to hold such offices for about the period of six weeks, when local self-government should intervene, and commissioners should be chosen to succeed the legislative appointees. They were, therefore, merely provisional officers, and not permanent appointments to office. The power of the legislature to declare a vacancy appears to be clear. This power was exercised by the act; and the appointment was evidently made as necessary for the conduct of its affairs until its people made their own selection of commissioners. The appointment was made to meet the necessities of a transition state from an “old to a new establishment; ” from the declaration of the vacancy until the interposition of a local self-government. It is claimed, however, that the acceptance of these offices by appellants constitutes a contract between them and the public which cannot be annulled without violating that provision of the constitution of the United States which prohibits any state from “passing any law impairing the obligation of contracts ” (section 10, article I, constitution of the United States); nor without violating that other provision of the amendments to the constitution, article V, that no one shall be “deprived of . . . property without due process of law.” That “ the office is property; that the occupant has the same light to it as to any other property. This right cannot be abrogated or impaired unless by consent.”
We cannot give our assent to this doctrine. Counties are usually classed under the head of public or quasi corporations, and exist for the convenience of government. The municipal authority of counties is a part of the machinery of state or territorial government, and exists for its assistance and benefit. The regulation of the affairs of a county is intrusted to persons, called in this territory county commissioners, who perform the duties of their office by virtue of the authority of the legislature, which prescribes what those duties are. The authority exercised by these commissioners is, therefore, entirely for the benefit of the public, and not for any private benefit whatever. Under our form of government these offices exist by reason of a public necessity and as a part of the machinery of territorial government. They should, therefore, be entirely under its con trol. The very nature of government would forbid that the incumbents of its offices could obtain a private right therein which would enable them to exercise such offices against the will of the state. This would be repugnant to the principle of the sovereignty of the state, which should have the power to determine always who shall be its agents to exercise its authority, restricted only by the fundamental law. We are of opinion, therefore, that the incumbent of the office of county commissioner, by the acceptance of the office, does not obtain such a right therein as is comprehended in the meaning of the above provisions of the constitution of the United States.
We are not, however, left to conjecture as to this principle, for it has been already decided for us by the supreme court of the United States in Butler v. Penna, supra. Daniel, J., in addition to what is quoted above, says: “It follows, then, upon principle, that in every perfect or competent government there must exist a general power to enact or repeal laws, and to create or change or discontinue the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community. . . . We have already shown that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the constitution relied on by the plaintiffs in error; do not come within the import of the term contracts, or, in other words, the vested private, personal rights thereby intended to be protected. They are functions appropriate to that class of powers and obligations by which governments are enabled, and are called upon, to foster and promote the general good; functions, therefore, which governments cannot be presumed to have surrendered, if, indeed, they can, under any circumstances, be justified in surrendering them.” The learned judge here refers to the cases of The Charles River Bridge v. The Warren Bridge, 11 Pet. 420; The State of Maryland v. The Baltimore & Ohio R. R. Co. 3 How. 534; The People v. Morris, 13 Wend. 325. The learned judge then quotes with approbation the following from the opinion in the case of Commonwealth v. Bacon, 6 Serg. & Rawle, 322: “These services, says Duncan, J., in delivering the opinion, rendered by public officers, do not, in this particular, partake of the nature of contracts, nor have they the remotest privity thereto. As to a stipulated allowance, that-allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law makers.” Also tlie following from the opinion of the court in the case of Commonwealth v. Mann, 5 Watts & Serg. 418: “ That, if the salaries of judges and their title to office could be put upon the ground of contract, then a most grievous wrong has been done them by the people by the reduction of a tenure during good behavior to a tenure for a term of years. The point that it is a contract, or partakes of the nature of a contract, will not bear the test of examination.”
In Donahue v. County of Will, 100 Ill. 94, Walker, J., delivering the opinion of the court, says: “It is impossible to conceive how, under our form of government, a person can own or have a title to a governmental office. Offices are created for the administration of public affairs. When a person is inducted into an office he thereby becomes empowered to exercise its powers and perform its duties, not for his, but the public, benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office, or had any title to it.”
The above decisions recognize the principle that public office is a public trust. That a public office exists not at all for the benefit of the incumbent, but only for that of the public. That it is not a grant to the incumbent, nor is it in the nature of a contract between the incumbent and the commonwealth. That public officers are the agents of government, and that it would he inconsistent with the objects, character and purposes of government not to be able, within constitutional limits and when expedient and proper, of which expediency and propriety it is the sole judge, to create, modify or abolish them at its pleasure.
When a public office, its terms, duties and compensation, are provided for in a constitution, it would not be competent for a legislature to abolish or modify these, any more than it would to violate any other provision thereof. But, as we have seen, this is not such a case. We are therefore of opinion that the act of the legislative assembly declaring vacant the offices of the county commissioners of Custer county, and appointing other persons to fill the vacancies created thereby until the commissioners to be elected thereafter might qualify and take upon themselves the duties of their respective offices, was within its power to enact, and that the same was a valid law. The question as to the legality of the session of the court at which judgment in this case was rendered was considered in the case of Carland v. The Commissioners of Custer County, decided at this term, 5 Mont, infra,where it was held that the proceedings had at that term of the court were regular and valid.
Judgment affirmed.
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Wade, O. J.
This is an action in the nature of a bill in equity to enjoin the collection of a tax assessed by the assessor of Ouster county, which the treasurer thereof, the defendant herein, is attempting to collect, upon “twenty miles of railroad and rolling stock” of the plaintiff, situated in said county of Custer and territory of Montana. There was a demurrer to the complaint, which was sustained, and the plaintiff abiding its complaint, judgment was rendered for the defendant, from which plaintiff appeals.
The action was commenced in the district court of the first judicial district, at Bozeman, Gallatin county, sitting to hear and determine causes arising under the constitution and laws of the United States, and the complaint alleges the creation and corporate existence of the plaintiff under an act of congress of July 2, 1S64, entitled “ An act granting lands to aid in the'construction of a railroad and telegraph line from Lake Superior to Puget’s Sound on the Pacific coast, by the northern route.” The complaint, in substance, further alleges:
That by the terms of said act plaintiff’s right of way through the public lands is two hundred feet in width on each side of said railroad, and in addition thereto includes all necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turn-tables and water stations, which right of way and necessary ground is exempt from taxation in the territories of the United States; that notwithstanding said exemption the assessor aforesaid, on the 5th day of September, 1881, without notice to plaintiff or its authorized agent at Helena, in said territory, whose duty as to returning assessments of plaintiff’s property for taxation in the territory were those of secretary or clerk, named and mentioned in the territorial laws, did then and there value and assess the personal property of the plaintiff, in said county, for taxation at 015,500, and did assess, value and return as assessable valuation in said county “ twenty miles of railroad and rolling stock,” at 0200,000, to the commissioners of said county, who then and there, without the knowledge of plaintiff or its agents in that behalf, approved of said valuation, and levied a tax thereon, amounting to .twenty-five mills on each dollar thereof, and thereby made it the duty of the treasurer of said county to collect said tax; that the plaintiff paid the tax upon said 015,500 of personal property, and applied to the board of county commissioners of said county at their December session, 1881, to remit the tax on twenty miles of railroad and rolling stock, so valued by said assessor at 0200,000, which the board refused to do, and neglected to make any record of said application ; that the plaintiff, before the commencement of this action, appraised at its true value the rolling stock on said twenty miles of road, and has tendered to the defendant the taxes thereon, amounting to the sum of 0440, and brings the money into court; that the assessment and levy of said tax upon said twenty miles of said road, valued at 0180,000, is evidenced by a record in the hands of the defendant, which tax he is proceeding to collect, and the same is a lien upon the real property of the plaintiff in said county, and a cloud upon its title; that, unless the defendant is enjoined, he will levy upon and sell the personal property and real estate of the plaintiff for said tax; and that for the wrong thus impending there is no plain, speedy or adequate remedy at law, but that the injury so threatened is, and will be, and remain, irreparable.
That Custer county is largely indebted, to wit, in the sum of more than $100,000, and has no money in its treasury applicable to pay any claim of plaintiff against the county, if it should pay said tax and sue the county, and recover a judgment for the same; that the taxes collected in said county are applicable by law to the payment of the necessary current expenses and interest upon warrants and the bonded indebtedness of the county, which warrants and bonds are payable in the order in which they were issued; that the warrants of said county are worth but eighty cents on the dollar, and subject to long delays in their payment, in consequence of the large indebtedness aforesaid, wherefore a judgment at law for the taxes so to be paid by plaintiff, or collected, if the treasurer should collect the same, would be wholly inadequate as a remedy to the plaintiff; that the railroad so assessed is the right of way and fixtures thereon mentioned in the act of congress, and thereby exempt from taxation in the territory of Montana and the other territories of the United States, the said twenty miles of railroad being on -what was, July 2, 1864, the public domain of the United States; that said assessment, valuation and return of the assessor was made upon a blank form in his hands, which, when returned, showed that an assessment had been made by him on the 5th day of September, 1881, on “ twenty miles of railroad and rolling stock ” in said county, which said return has since been lost, and the evidence, whether said $215,500 so assessed is on real or personal property, right of way or rolling stock of plaintiff does not appear on the books of the treasurer or the archives .of the county, and the proof thereof, which must be produced from other sources, is liable to be lost, and the plaintiff, by reason of the death of its witnesses, may be unable hereafter to prove the assessment upon its right of way, which it is now able to do; that the assessment of plaintiff’s right of way is and was fraudulent, and that any assessment thereof, without notice to its general agent, is and was fraudulent and void, and, because of said exemption, the assessment thereof was beyond the authority and jurisdiction of the assessor, wherefore plaintiff prays judgment that the claim of defendant to recover or collect said taxes, remaining unpaid, be declared invalid; and that he and his agents, and successors in office, be enjoined from collecting the same.
Upon this state of facts and allegation the following questions arise for determination: (1) Was the action commenced in the proper court % (2) What is included in the right of way, which, by the terms of the act, is exempt from taxation ? (3) Was it within the constitutional power of congress to so exempt said property from taxation? (4) If the property was subject to taxation, was the tax assessed and levied as our statute requires ? (5) In what cases and under what circumstances will the collection of taxes be enjoined ?
1. Our district courts, sitting to hear and determine causes arising under the constitution and laws of the United States, have .the same jurisdiction as the circuit and district courts of the United States. Our organic act provides (section 9): “ And each of said district courts shall have and exercise the same jurisdiction, in all cases arising under the constitution and laws of the United States, as is vested in the district and circuit courts of the United States, and the first six days of each term of said courts, or so much thereof as may be necessary, shall be appropriated to the trial of causes arising under the said constitution and laws.”
When does an action arise under an act of congress ? Judge Deady, in Hughes v. Northern Pac. R'y Co. 18 Fed. Rep. 106, answers this question, and says: “ A controversy which turns upon the existence, effect or operation of the act of congress arises under such act, and a suit brought to determine the same is a case arising under such act, within the meaning of the statute.”
The supreme court of the United States, in Osborn v. U. S. Bank, 9 Wheat. 816, decides that a suit by or against a corporation created by act of congress is necessarily a case arising under the laws of the United States, and therefore within the jurisdiction of the circuit court. By section 1 of the act of congress of March 3, 1815 (18 U. S. St. 410), jurisdiction is conferred upon the circuit court, in all cases arising under the laws of the United States, as follows: “That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where- the matter in dispute exceeds, exclusive of costs, the sum of $500, and arising under the constitution and laws of the United States.”
Says Judge Deady, in Hughes v. Northern Pac. R'y Co., supra: “The effect of this legislation in'the ruling in Osborn v. U. S. Bank, supra, is equivalent to a special clause in the charter of the Northern Pacific authorizing it to sue and be sued in the circuit courts in all cases. To the same effect, see Fisk v. U. P. R'y Co. 6 Blatch. 365.”
If this suit would have been properly commenced in the circuit court of the United States, then it is properly commenced in a court having like jurisdiction to that of the circuit court, and such is the jurisdiction of our territorial district courts when sitting to hear and determine causes arising under the constitution and laws of the United States.
2. Section 2 of the act incorporating plaintiff provides as follows: “That the right of way through the public lands be, and the same is hereby, granted to said Northern Pacific Railroad Company, its successors and assigns, for the construction of a railroad and telegraph, as proposed. . . . Said way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad where it may pass through the public domain, including all necessary ground for station buildings, work-shops, depots, machine-shops, switches, side tracks, turn-tables and water stations; and the right of way shall be exempt from taxation within the territories of the United States.” 13 U. S. St. 367.
Whatever interest the plaintiff acquired in the lands described in its right of way is an interest evidenced by a grant. The United States being the owner of the public lands in the territories, and having the right to dispose of the same, declared “that the right of way through the public lands be, and the same is hereby, granted to the Northern Pacific Railroad Company, its successors and assigns;” and the purpose of the grant is “ for the construction of a railroad and telegraph line ” over and through the right of way so given and granted to the company. The right in the company is vested and exclusive. It is an easement in the land described in the right of way. It is a freehold interest in the soil, having all the properties of realty. If it belonged to an individual it would descend to his heirs, and can only be conveyed by deed. Within the boundaries of the right of way, as described in the grant, personal property used in constructing and operating the road, attached to the soil and annexed to the easement, becomes a part of the real estate of the company. A right of way over or through land is an easement, and an easement is an interest in the soil, such an interest as that when personal property is attached to it, it becomes a part of the realty. These propositions seem to be in harmony with the authorities.
In the case of the Appeal of the N. B. & M. R. R. Co. 32 Cal. 506-512, Judge Sawyer, speaking for the supreme court of California, has determined what passes by the grant of right of way to a railroad company, and in reviewing the authorities in an able opinion, says:
“Under the act of April If 1861 (St. 1861, p. 193), the appellant acquired ‘ the right of way whereon to construct and laydown a railroad track within the corporate limits of the city and county of San Francisco, and to run horse cars thereon’ through certain designated streets, embracing the whole of that portion of Kearney street proposed to be widened, and extending in each direction a considerable distance beyond. It was authorized to lay down a track for its cars to run upon, and to receive five cents fare from each passenger for any distance carried in said cars. This right of way is at least an easement in said street. So much is admitted by appellant’s counsel. But an easement is property, recognized as such by law, and one of the kind in question, very valuable property. It is an incorporeal hereditament, but it is still a tenement and an interest in the land. ‘ An easement always implies an interest in the land in or over which it is to be enjoyed. A license carries no such interest. The interest of an easement may be a freehold or a chattel one, according to its duration.’ Washb. Easem. p. 5, par. 5. ‘An easement must be an interest in or over the soil.’ Per Cresswell, J., in Rowbotham v. Wilson, 8 El. & Bl. 157. ‘A right of way is an assignable property. It is a real or chattel interest, according to the term of its duration, and the former is well known in the law as that sort of real property belonging to the class of incorporeal hereditaments.’ Ex parte Coburn, 1 Cow. 570; Heaton v. Ferris, 1 Johns. 146. It is real property, and it is created by grant. An easement is an estate or interest in land within the statute of frauds requiring contracts affecting real property to be in writing. Wolfe v. Frost, 4 Sandf. Ch. 89; Foster v. Browning, 4 R. I. 51. By act of parliament (10 Anne), certain parties were ‘ authorized and empowered, at their proper costs and charges, to make the river Avon, from the city of Bath dowm to and within the mill-pool or wear-pool below Harmon mills and wear, not exceeding one hundred and fifty yards, navigable, useful and passable for boats, lighters and other vessels,’ and to take certain tolls from those navigating the said portion of said river. Buckeridge v. Ingram, 2 Ves. Jr. 654. The interest of the parties in the soil of that portion of the river is but an easement, similar to that acquired by the appellant in this case. Yet, shares in the improvement were held to be real estate and subject to dower. The master of the rolls, citing Lord Coke, says: ‘And according to that passage, every hereditament which in any degree arises out of land, affects the same, or is exercisable within the same, has all the properties that belong to real estate. . . . When we come to try the question by the test of that definition, it would be strange to say the right of making all these cuts and erections, and receiving certain tolls, payable by all persons and goods navigating that part of the river, does not savor of realty. It not only does, but it partakes of it. It is not the soil, which I hold would hardly pass to the grantee, but it is a right arising out of the soil. The land itself includes every profit that can be made out of land. Therefore, this act cannot be construed to have taken out of the proprietors, and given to this corporation, the soil; but it has given them the right in and over the soil, and certain rights arising in and out of the soil. ... I have no difficulty in saying that whenever a perpetual inheritance is granted, which arises out of lands, or is in any degree connected with, or, as it is emphatically expressed by~ Lord Coke, exercisable within it, — it is that sort of property the law denominates real, and cannot pass by a will without three witnesses.’ Id. 633. Having determined the interests to be real estate, he held the shares subject to dower. ‘ The whole estate of the Chesapeake & Ohio Canal Company, at legist so far as it consists of the canal itself, and its necessary buildings and fixtures attached to them, must, according to the common law, be regarded as realty.’ Binney's Case, 2 Bland, Ch. 145. When a. party conveys laud bordering upon a navigable river upon which a ferry is established, but excepts therefrom his right to hold and maintain the ferry the ferry right does not pass, and it is real estate, ‘and subject to the laws which govern realty.’ Bowman's Devisees v. Wothen, 2 McLean, 385-388. ‘ The statute of Indiana recognizes the right of proprietors of land on the margin of the river, and to none others can ferry rights be granted, and it is supposed that this limits the right to the grantee of the soil. But this construction cannot be sustained. By the statute nothing more could have been intended than to rescue from violation the right of the riparian proprietor. This right is appurtenant to the soil; but he may convey it, and still retain the fee in the land. And by such conveyance, the grantee holds the right which the statute was designed to protect. He has the use of the soil for the ferry landing, and for ferry-ways, >so far as the public accommodation is concerned, as fully and completely as could be exercised by the grantee of the soil, but for no other purpose has he a right to enter upon the soil. Now, it must be presumed that the right thus possessed is as much within the policy of the statute as if it were a fee-simple in the soil. Indeed, it is within the letter of the statute; for the grantee of such a right may, in the strictest sense, be considered, for all the purposes of the ferry, the proprietor of the land on the margin of the river. This right, as before remarked, is real estate. It descends to heirs as such, is subject to dower, and to all the incidents of real property.’ Id. 389, 390.
“ The statutes of Rhode Island provide that ! the assessors of taxes in the several towns, in assessing taxes for real estate, may assess the same, either upon the owners of the real estate, or upon the persons who hold or occupy the same.’ Prov. Gas Co. v. Thurber, 2 R. I. 21. Under this provision the Providence Gas Company was assessed for its gas pipes laid in the streets of the city, valued as real estate at $50,000. Id. 15. The gas pipes having been permanently attached to the soil, and united to the easement of the company in the land, were held to become a part of the realty, and to be properly taxed as real estate. The court say: ‘If these pipes had been laid in the land of an individual by parol license, they would not become fixtures thereby. But if the owner had granted, by deed, the right in the fee to lay pipes through his land, they would be fixtures, because the annexation would be under legal title. . . . What then is the nature of the right which plaintiffs take under their charter? We think, when exercised, it is an easement, an incorporeal hereditament, like the right of a railroad company to build and occupy their road, or a canal company their canal, under the provisions in their charter which grant the power to take the land, upon rendering compensation to the owners. . . . But the tax has not been assessed upon the plaintiffs as occupants of the land by their pipes, etc., but upon their pipes as real estate. And these pipes being annexed to the freehold, and the gas company having an easement in fee, or a right so to annex and use them, we think they are fixtures, and rightfully assessed as real estate. Id. 26. So, also, the Providence & Worcester Railroad Company owned ‘in fee an easement in certain real estate in said town, said estate, so owned by said company, being the location, sleepers, rails and bridges, etc., of the Provi dence & Worcester Railroad,’ lying within the limits of the charter. Under the same act this property was assessed as real estate, and the question was whether it was liable to be assessed. The court say: ‘We have no doubt the easement of the plaintiffs, and their rails, bridges, sleepers, etc., are real estate, and subject to taxation, within the decision of the court in the case of Providence Gas Co. v. Thurber, unless exempted by section 28, etc. . . .’ Prov. & W. R. R. Co. v. Wright, 2 R. I. 462. So in New York, under the general statutes requiring ‘ all real and personal estate ’ to be assessed for taxation at its full and true value, land occupied by the road, the superstructure, and other fixtures, is taxed as real estate in all respects like other lands. Alb. & Sch. R. R. Co. v. Osborn, 12 Barb. 225; Alb. & West Stockbridge R. R. Co. v. Town of Canaan, 16 Barb. 247. The same is true of Illinois. Sangamon & M. R. R. Co. v. Morgan, 14 Ill. 166. ...
‘ ‘ A turnpike company has but an easement in the soil, yet it has an estate — a property in it — which can no more be taken for the use of a railroad, without compensation, than the interest in the soil held by the owners of the fee. When a railroad crosses a turnpike, compensation must be made to the turnpike company. In a case of assessment for damages resulting from the crossing of a turnpike by a railroad, Mr. Justice Harris speaks of the interest of the former as real estate. He says: ‘ So far as the railroad company had occasion to take the real estate of the turnpike company, so far they were bound to make compensation.’ Troy & B. R. R. Co. v. North Turnpike Co. 16 Barb. 106. So a railroad company which exclusively uses the road by cars propelled by steam, cannot appropriate a public highway as a part of its road, without making compensation to the owner of the fee of the land upon which the highway is located. This is imposing a new burden upon it beyond the easement already acquired by the public. A new estate is to be carved out, which can only be acquired by the railroad company by contract with the owner of the fee, or by condemnation and payment of compensation under the right of eminent domain. Williams v. N. Y. Cent. R. R. Co. 16 N. Y. 100; Mahon v. N. Y. Cent. R. R. Co. 24 N. Y. 658; Wager v. Troy Union R. R. Co. 25 N. Y. 526; Waterloo v. Aub. R. R. Co.. 3 Hill, 569. In the first case the court says: ‘The right of-the public in a highway is an easement, and one that is vested in the whole public. Is not the right of a railroad company, if it has a right to construct its track upon the road, also an easement ? This cannot be denied; nor that the latter easement is enjoyed, not by the public at large, but by a corporation, because it will not be pretended that every man would have a right to go and lay down timbers and his iron rails and -make a railroad upon a highway. Here, then, are two easements, — one vested in the public, and the other in the railroad company. These easements are property; and that of the railroad company is valuable.5 16 N. Y. 108. And it is property that must be acquired by purchase,— by contract with the owners of the fee, — or by making compensation in the mode prescribed by law in the exercise of the right of eminent domain. The sovereign power has no authority to convey it as a part of the franchise. By virtue of its franchise it may be endowed by the sovereign power with capacity to acquire the easement, hold property, and exercise the functions with which it is endowed; but it is beyond the power of the government itself to endow it with the easement, confer upon it the property, the interest, or estate in the lands not owned or controlled by the sovereign power. That interest is property, as distinct from the franchise, and must come through purchase and payment of the consideration like any other property. So, also, in a recent case in New York, in which the power of the corporate authorities of New York city to authorize certain parties to construct a street railroad in Broadway, the character of the rights and interests of street railroad companies was involved. In speaking of the resolution authorizing the parties to construct the road, the court say: ‘Upon its acceptance (if valid), it became a contract between two parties binding each to the observance of all of its provisions. It was something more than a mere executory contract between the parties. It amounted also to an immediate grant of an interest, and it would seem, of a freehold interest, in the soil of the street to the defendants. The rails, when laid, would become part of the real estate, and the exclusive right to maintain them perpetually is vested in the defendants, their successors and assigns. . . The title to the rails, when permanently attached to the land, and such right in the land as may be requisite for their perpetual maintenance, are therefore granted to the defendants by the resolution. The exclusive use of the rails, when laid for the purpose for which they were designed, would also, I think, belong to the defendants. Other people might drive across them, and to some extent along them, with ordinary carriages, but they would have no right to run cars upon them for their own convenience or profit. Any use which the public could have of them, not exercised through the defendant’s franchise, would depend upon the fact that the rails would not entirely exclude from the ground they might occupy the character of a public street.’ Milhau v. Sharp, 21 N. Y. 620, 621. ‘The resolution is therefore void, for the reason that it purports to create a franchise which the common council had no power to create; to vest in the defendants an exclusive interest in the streets which the common council had no power to convey; and to divest the corporation of the exclusive control o ver the street which has been given to it as a trust for the use of the public, and which it is not authorized to relinquish.’ ” Id. 622.
Judge Sawyer’s conclusion from these cases is that the appellant, who, under the act of April 17, 1861, had acquired “the right of way whereon to construct and lay down a railway track within the corporate limits of the city and county of San Francisco, and to run horse cars thereon,” through certain designated streets, thereby acquiring “an interest in the soil in Kearney street; that it consists in the Ideation of the road in the street, its right to lay down rails and attach them to the soil, and to run its cars over them for profit; its right to the exclusive use of them and the street, so far as it is necessary for the purpose in the mode prescribed; that this interest is property, — an interest in the land,— and that it is real estate, and the rails thus laid down, attached to the soil and annexed to the easement, became themselves a part of the land ■— of the estate of the company; and that in those states where no special provision is made for taxing this species of property in a different mode, it is assessed as real estate in the same manner, and upon the same principles, as land, as if the company owned the land itself upon which the track is laid, to the extent of its interest in it. . . . It is as immovably established on the particular portion of the earth as the lot occupied by stores fronting on the same street; and the estate in the one can no more be enjoyed, away and apart from its fixed locality, than the estate in the other; and the right of the street railroad company to the exclusive control and enjoyment of its estate in the soil of the street, to the full extent of that estate, is as perfect as the right of the lessee or owner of the lot fronting on the same street to control and enjoy its estate. The several estates are substantially of the same kind, and are of equal dignity before the law, but one is larger, more extensive, than the other. Practically, they differ only in the quantity of interest, not in quality.”
The following cases have been decided since the decision of Judge Sawyer:
In the case of People v. Cassity, 46 N. Y. 46, says Folger, J.: “The property assessed in this case is the track of the relators, consisting of its stringers, ties and rails. This track is laid down in the public highway, and the relators have or claim no interest in the lands of the highway, save a right to use the same for the passage of their teams and vehicles, to and fro, over the track. This right they claim and doubtless have. And it includes a right to the constant and exclusive, and for the extent of their chartered existence, the lasting, use of the soil for the support of their track. It is an easement (Williams v. N. Y. Cent. R. R. Co. 16 N. Y. 97; Craig v. R. & B. R. R. Co. 39 N. Y. 404), and this is an interest in the land over which it is enjoyed. Washb. Easem. 6. It gives them the right of the exclusive possession as from time to time they shall need to use any part of it.
“By the statutes in relation to assessments and taxation (1 E. S. 360, §§ 1, 2), (all lands within this state, whether owned by individuals or by corporations, shall be liable to taxation. The term land shall be construed to include the land itself and all buildings and all other articles erected upon or affixed to the same, and the terms real estate and real property■ shall be construed as having the same meaning as the term land thus defined.’ . . .We are not inclined to give to the terms of the statute a construction so narrow, as that required by the position of the relators. That would be to hold that buildings and fixtures are not included in the term ‘land,’ except as inseparable, in consideration of the ownership thereof, from the ownership of the fee; and that no right or interest in land less than the fee thereof would, for the purpose of the assessment, be deemed to fall within the meaning of ‘land,’ as set forth in the statute. The statute means, for this purpose, to make two general divisions of property — one all lands, another all personal estates; and then, to be more definite, it declares that by land is. meant the earth itself, and also all buildings and other articles erected upon or affixed to the same. We do not think that when buildings or other articles are erected upon or affixed to the earth, they are not, in view of the statute, land, unless held and owned in connection with the ownership in fee of the soil. We are of the opinion that the statute means that such an interest in real estate as will protect the erection, or affixing thereon, and the possession of buildings and fixtures, will bring those buildings and fixtures within the term ‘lands,’ and hold them to an assessment as the lands of whomsoever has that interest in the real estate, and owns and possesses the buildings and fixtures. The defendants were right, then, in considering the track of relators as land, and liable to assessment as such. See People v. Beardsley, 52 Barb. 105, since affirmed in this court.”
In the case of The City of New Haven v. F. H. & W. R. R. Co. 38 Conn. 421, Carpenter, J., speaking for the supreme court of Connecticut, says: “This action is brought to recover the amount of benefits assessed upon the defendant for its proportional part of the expense incurred in paving a portion of Chapel street, in New Haven, in and through which the defendant’s railroad track is laid. The defense is — First, that the defendant is not liable to assessment. . . . The defendant’s property consists in part of rails, sleepers, ties and spikes, so laid into and attached to the soil in the street where the improvement was made as to become a part of the realty. That property so situated is real estate has been repeatedly decided. Prov. Gas Co. v. Thurber, 2 R. I. 21; City of Chicago v. Baer, 41 Ill. 306; Appeal of North Beach & M. R. R. Co. 32 Cal. 499; Farmers’ Loan & Trust Co. v. Hendrickson, 25 Barb. 494. We entertain no doubt that this ought to be regarded as real estate, and, as such, liable to assessment like any other real estate especially benefited, unless there is something in the charter showing that the legislature did not intend that this species of property should be assessed.”
These decisions, and the reasoning thereof and the anal ogies of the law, seem to conclusively establish the proposition that the right of way granted to the plaintiff is, for all the purposes of this case, real estate, having all the properties that would attach to a grant of the land itself. If this be true, and this right of way is land or an easement in land, which implies an interest therein (1 Washb. Eeal Prop. 543) to such an extent that personal property attached to the soil and annexed to the easement becomes a part of the land itself, then the other important consequences follow. “Whatever is affixed to the soil belongs thereto.” Quicquid plantatur solo, solo cedit. Broom, Leg. Max. 299. Land, according to Lord Coke, includes not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage and water, or by the hand of man, as houses or other buildings, and which has an indefinite extent upwards as well as downwards, so as to include everything terrestrial, under or over it. Go. Litt. 4a; 3 Kent. Comm. 509; 2 Bl. Comm. 18. Whatever is built on the soil is an accessory of the soil. Bouv. Inst. § 1571. It follows from these propositions that the road-bed, the rails fastened to it, station buildings, workshops, depots, machine-shops, etc., constructed over, upon or through the right of way granted to the plaintiffs and attached to the soil, and annexed to the easement, become a part of the real estate of the railroad company.
Says Washburn (1 Washb. Eeal Prop. 3): “ Thus the road-bed, the rails fastened to it, and the buildings at the depots of railroads, are real property.”
Catón, O. J., speaking for the supreme court of Illinois, says: “ We are of the opinion that the rolling stock, rails, ties, chairs, spikes, and all other material brought upon the ground of the company incumbered by the mortgage and designed to be attached to the realty, should be considered as a part of the realty, and incumbered by the mortgage as such.”
There is another principle that ought to give some light on this question. “It is a general rule that a grant of power to accomplish any particular enterprise, and especially one of a public nature, carries with it, so far as the grantor’s own power extends, an authority to do all that is necessary to accomplish the principal object.” “It is a well known and reasonable rule, in construing a grant, that, when anything is granted, all the means to attain it, and all the fruits and effects of it, are granted also.” Shaw, C. J., in Babcock v. Western R. R. Corp. 9 Metc. 555. Here is a grant of a right .of way through the public lands “for the construction of a railroad and telegraph.” Such a grant carries with it the right to the exclusive possession of the lands described for the purpose aforesaid; to make excavations, cuts and fills in the soil or ground; to construct a road-bed of suitable width and grade; to lay ties and rails thereon, and to erect upon the lands described, as and included in the right of way, all buildings, shops, water stations, depots, etc., necessary and suitable to be used in constructing or operating such railroad. This right necessarily implies property in the ground itself. This property is real estate, and the title to it is a legislative grant. By virtue of this grant the railroad company acquired the same interest in the land as if it had received a deed of the land for the purpose of constructing and operating a railroad. The provision contained in section 2 of the act incorporating plaintiff, declaring that “the right of way shall be exempt from taxation within the territories of the United States,” therefore carries with it, and exempts from taxation within the territories, the road-bed, the ties, and rails thereto attached, and all the station buildings, workshops, etc., necessary for the construction and for operating said railroad; and the assessment for taxation and levy of tax thereon of “twenty miles of railroad” in the county of Custer, as mentioned and described in the complaint, which description must include the road-bed, ties and rails, and all necessary buildings attached to the soil and annexed to the easement of the right of way, was unauthorized, and is illegal and void.
3. But if the property was subject to taxation,- was the tax assessed and levied as our statute requires? As to the taxation of railroads, the statute of the territory provides as follows (sec. 1007, E. S. p. 618): “The property of corporations or companies constructing bridges, canals, ditches, flumes, railways, plank roads, graded roads, turnpike roads, telegraph lines and similar improvements, shall be assessed tp each corporation or company, and their interests are to be taxed in this territory, in the county or localities in which such bridges, railways, etc., may be, and to the extent of such improvements as may be found, in the county, or counties, in which the same may be situated; and to this end the assessor is directed to require the secretary or clerk, or whatever officer of corresponding duties there may be, to render upon oath a list of the number of miles and value of such improvements as may be in each separate county through which the same may be constructed, or in which the same may "be situated.”
Section 1013 provides that the assessor’s list shall contain: First, the land and a description thereof; and second, the personal property; and section 1015, that the assessor shall make out and deliver to the county clerk an assessment roll containing the names of the persons and bodies in whose names property has been listed, with the severed species of property, and the value as herein-before indicated, that is, as indicated in section 1013.
The allegations of the complaint, as to the assessment of this property, are as follows: “That on the 5th day of September, 1881, it (the plaintiff) had certain personal property, and twenty miles of its said road provided in said act to be built, then and there constructed and lying in said county, and then had its principal office and headquarters in the city of St. Paul, in the state of Minnesota, and a general agent at Helena, Montana, whose duties as to the return and valuation and assessment of its property for taxation correspond with and were those of the secretary or clerk named and mentioned in the law of the territory, and who might have been applied to by the assessor of said county and required to list its property liable to taxation, but its said general agent was not so applied to to list its taxable or other property in said county by said assessor for taxation' for that year, nor was any person so applied to by said assessor whose duties were equivalent to or correspond with those of the ■secretary or clerk in the law of the territory mentioned; but the assessor of said county, on the said 5th day of September, 1881, without the authority of law, did, himself, then and there, assume and pretend to make a list of the property of this plaintiff in said county, and value the same for the purpose of taxation for that year, and did then and there value and assess the personal property of the plaintiff for taxation at $15,500, and did assess, value and return as assessable valuation in said county, ‘twenty miles of railroad and rolling stock’ at $200,000 to the commissioners, without notice thereof to the company. ”
Section 1011 of the statute provides that the assessor shall assess and value all property required by the law to be assessed and valued, and, between the 1st day of February and the 10th day of September, in each year, shall demand of each tax-payer in his district a list, as hereinafter provided, of his, her or their property; and if such list be not rendered under oath at the time such demand be made, the assessor shall proceed to list and assess the property of such tax-payer according to his best knowledge and information. A legal assessment is the foundation of a legal tax. The assessor derives his authority from the statute, and in order to give him jurisdiction to act, or to clothe his official acts with any potency or efficacy, the provisions of the statute must be particularly followed. Says Judge Oooley: “Of the necessity of an assessment no question can be made. Taxes by valuation cannot be apportioned without it. Moreover, it is the first step in the proceedings against individual subjects of taxation, and is the foundation of all which follows it. Without an assessment they have no support, and are nullities. It is, therefore, not only indispensable, but, in making it, the provisions of the statute under which it is to be made must be observed with particularity. ... As the course unquestionably is prescribed in order that it should be followed, and as, without, the citizen is substantially without any protection from unequal and unjust demands, the necessity for a strict compliance with all important requirements is manifest.” Cooley, Taxation, 259, 260. “If the officers were to be at liberty to disregard important provisions of the statute in this initiatory step (making the assessment), the chief protection which the law has intended for individuals in tax cases would be removed.” Id. 260.
Under the provisions of our statute it is the first duty of the assesor to demand a list of the property from the tax-payer, or the person whose property is to be assessed. This is the first and important step towards assessing his property for taxation. If the list is not furnished on such demand, then, and not until then, has the assessor the right himself to make a list and value the property. The demand is a condition precedent to the right of the assessor to act in the premises. That, and the neglect or refusal of the person having taxable property, alone gives to the assessor the right to make the list himself. If this were not so, the sovereign power of taxation becomes an arbitrary exaction, subject to the caprices of a single individual, without the knowledge-and behind the back of the person most interested, and whose property is to be taken for the public uses. Therefore it is that our statute has wisely provided that the person having taxable property shall have the 'right to list the same for taxation. The assessor has no right or jurisdiction to make the list until the tax-payer or person having property subject to taxation has neglected or refused to make it.
These provisions of the statute are applicable to the assessment of railroads or railroad property for taxation. By section 1007 of the statute the assessor is directed to require the secretary or clerk, or whatever officer of corresponding duties there may be, to render, under oath, a list of the number of miles and value of such improvements as may be in each separate county through which the same may be constructed, or in which the same may be situate. The right to assess railroads, and the manner in which the assessment shall be made, depends upon this statute. The assessor, in order to make a valid assessment of railroad property, must, as in other cases, substantially follow the terms of the statute. By the allegations of the complaint the assessor1, before listing and assessing the property in question, made no requisition upon the secretary or clerk of the plaintiff for a list of its property, under oath or otherwise; but without notice to plaintiff, and upon his own motion and knowledge of its value, made the list and assessment upon “twenty miles of railroad and rolling stock” at $200,000. If any regard at all is to be had to the statute providing for the assessment of railroads, certainly this assessment is no assessment, and wholly invalid. The object of the statute is to require the value of railroads and number of miles in each county to be made on the oath of some one who is supposed to know whereof he speaks, and until the officer (or officers) designated has had an opportunity to make this list, on oath, and has failed or refused so to do, the assessor has no right to list or value the property. How it would be if the railroad company should neglect or refuse to make this list under the oath of the proper person, it is not necessary to decide, as no such question arises. By the allegations of the com ]plaint there was an officer of. the plaintiff in the territory whose duties correspond to those of the clerk or secretary mentioned in the statute, and who would have made the requisite list on application.
There is another question arising upon this assessment. By virtue of sections 1013 and 1015 of the statute, the list and return of the assessor shall contain a separate and distinct description and valuation of the real and personal property. These two sections, taken together, require the separate listing and separate valuation of the personal and real property, and forbid that the real and personal property be lumped together and assessed in a mass. The reasons for these provisions of the statute are obvious. Unless the real and personal property are separately and distinctly described and valued, it would be impossible for the board of equalization to properly equalize the taxes.
If rolling stock is to be taken as personal property, then, in this assessment of “twenty miles of railroad and railroad stock,” there was an unwarranted lumping-, together and valuation of real and personal property. It is the right of the tax-payer that his personal and real property be separately listed and valued, and he has the right to bo heard before the proper tribunal as to the correctness or propriety of such list and valuation. His right so to be heard and to notice of the proceedings is a constitutional right (Cooley, Taxation, 266); and his right to list his property for taxation, or notice thereof, is of the same nature. The assessment and levy of taxes is the exercise of sovereign power. It is taking private property for public uses,— a necessary power in every well regulated government,— but its exercise must be limited and controlled by law, and this law must be substantially observed in order to confer jurisdiction upon the person administering it. No person is required or can be compelled to pay taxes which have not been assessed and levied in pursuance of law. “ Defects in the conditions to a statutory authority cannot be aided by the courts; if they have not been observed, the courts cannot dispense with them, and thus bring into power that which the statute only permits when the conditions have been fully complied with. A statutory power must be executed according to the statutory directions, and, presumptively, any other execution is opposed to the legislative will.” Id. 324.
4. Was it within the constitutional power of congress so to exempt said property from taxation? This question must be considered in view of some further provisions of the act incorporating plaintiff. The United States retain a certain interest in the road while it is being constructed and after it is completed. Section 11 of the act incorporating the company provides as follows: “That said Northern Pacific Eailroad, or any part thereof, shall be a post route and a military road, subject to the use of the United States for postal, military, naval and all other government service, and also subject to such regulations as congress may impose, resti’icting the charges for such government transportation.”
The government, therefore, retains the right to use the road for any and all government purposes, and the power is left in the government to have such use upon such terms as it may declare.
The Northern Pacific Eailroad, when completed, thus becomes an instrumentality of the government for carrying on its important operations. It was decided in the celebrated case of McCullough v. State of Maryland, 4 Wheat. 316, that such an instrumentality may not be taxed by the state government, for the reason that the power to tax implies the power to destroy; therefore if the states retained authority to tax the instrumentalities by which the national government was carried on, they had the power to destroy the national government and to make its existence depend upon the will of the states. The states retain no such authority. If they did they are supreme, whereas the people of the United States have declared that the constitution, and- the laws made in pursuance thereof, shall be the supreme law of the land.
Since the decision of the case of McCullough v. State of Maryland, supra, in 1819, and that of Osborn v. Bank of United States, 9 Wheat. 867, in 1824, it has been the settled doctrine of the supreme court of the United States, says Chief Justice Chase in Van Allen v. The Assessors, 3 Wall. 591, that congress may constitutionally organize agencies for carrying into effect the national powers granted by the constitution; that these agencies may be organized by the voluntary association of individuals, sanctioned by congress; that congress may give such agencies, so organized, corporate unity, permanence and efficacy; and that such agencies, in their being, capital, franchises and operations, are not subject to the taxing power of the states, has ever been regarded, since those decisions, as the settled doctrine of this court. The reason for this doctrine is stated by Chief Justice Marshall in his opinion in the case of McCullough v. Maryland, supra, as follows: “ That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another; which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.”
This doctrine has been limited by subsequent decisions, and the limitation is stated by Miller, J., in the case of Nat. Bank v. Com. 9 Wall. 353, as follows: “But the doctrine has its foundation in the proposition that the right of taxation may he so used in such cases as to destroy the instrumentalities by which the government proposes to effect its lawful purposes in the states. . . . The principle we are discussing has its limita tions — a limitation growing out. of the necessity on which the principle itself is founded. That limitation is, that the agencies of the federal government are only exempted from state legislation so far as that legislation may interfere with or impair their efficiency in performing the functions hy which they were designed to serve the government. Any other rule would convert a principle founded alone in the necessity of securing to the government of the United States the means of exercising its legitimate powers into an unauthorized and unjustifiable invasion of the rights of the states. ... It is only when the state law incapacitates (these agencies) from discharging their duties to the government that it becomes unconstitutional.”
Therefore, it conclusively appears that the federal government had the right to incorporate the Northern Pacific Eailroad Company; to grant to it the right of way through the public lands; to make such road an instrument, of the government for carrying on its legitimate and constitutional operations; and to exempt said right of way from state or other taxation, — provided such taxation would destroy or incapacitate such instrumentality for the purpose for which it was created. Whether the tax levied against the plaintiff on its right of way through the public lands would do this or not does not appear, but the government had the right and authority to so exempt said right of way from taxation, in consideration that the road, when constructed, should be subject to the use of the government for the purposes named in the act of incorporation. The act of incorporation is a contract, and the exemption of the right of way from taxation is founded on a valid consideration. This contract cannot be impaired either by state or national legislation.
In 1853 the legislature of the state of North Carolina chartered- the Wilmington & Ealeigh Eailroad Company. -One section of the charter contained the following pro vision: “and the property of said company, and the shares therein, shall be exempt from any public charge or tax whatsoever.” With this charter in force, the franchise and rolling stock of the company were assessed under a subsequent law, and pursuant to it, for taxation by the state. In deciding the case, Justice Davis (Wilmington Railroad v. Reid, 13 Wall. 266) says: “It has been so often decided bye this court that a charter of incorporation granted by a state creates a contract between the state and the corporation which the state cannot violate, that it would be a work of supererogation to repeat the reasons on which the argument is founded. It is true that when a corporation claims an exemption from taxation it must show that the power to tax has clearly been relinquished by the state; and if there be a reasonable doubt about this having been done, that doubt must be solved in favor of the state. If, however, the contract is plain and unambiguous, and the meaning of the parties to it can be clearly ascertained, it is the duty of the court to give effect to it, the same as if it were a contract between private persons, without regard to its supposed injurious effects upon the public interests. . . . There is no difficulty whatever in the case. The general assembly of North Carolina told the Wilmington & Weldon Eailroad Company, in language which no1 one can misunderstand, that if they would complete the work of internal improvement for which they were incorporated, their property and the shares of their stockholders should be forever exempt from taxation. . . . It is needless to argue the point further. It is clear that the legislation in controversy did impair the obligation of the contract which the general assembly of North Carolina made with the plaintiff in error.”
And for this reason the judgment of the supreme court of North Carolina was reversed.
In the case of Neustadt v. Illinois Cent. R. Co. 31 Illl. 484, Justice Breese, speaking for the supreme court of the state of Illinois, said: “ In consideration of the undertaking of the company to construct a great thoroughfare, which should involve the expenditure of millions, and which was an experiment, and seven per cent, of the gross amounts of its receipts or income to be. paid to the state, the company was relieved from the payment of all other than state taxes, to be assessed as provided in this section (of the charter). The language is plain and explicit: ‘ The corporation is hereby exempted from all taxation of every kind, except as herein provided for.’ This being the contract between the state and the corporation, no city or town authority can impose a tax for municipal purposes on the property of the company which may be within their limits.” Ill. R. Co. v. Co. of McLean, 17 Ill. 291.
And so it may be said that the government of the United States told the Northern Pacific Railroad Company, in language which no one can misunderstand, that if they would construct and complete their great work of internal improvement, which was an experiment, involving the expenditure of millions of money, the right of way through the public lands in the territory should be exempt from taxation. The exemption from taxation formed a part of the consideration for the undertaking and contract on the part of the company. This contract cannot be impaired by the national legislature, much less by an act of a territorial legislature, which owes its existence to its organic act given by congress. As well might such territorial legislature undertake to repeal the organic act which called it into being as a temtory.
One of the purposes of the government in incorporating the Northern Pacific Railroad Company, and granting to it certain of the public lands, and the right of way through the same, was to promote the public interest and welfare, and to secure to the government at all times the use and benefits of the road for postal, military and other purposes. Section 20 of the act of incorporation is as follows: “That the latter, to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefit of the same for postal, military arid other purposes, congress may, at any time, having due regard for the rights of said Northern Pacific Eailroad Company, add to, alter or repeal this act.”
The purpose and object of the government in incorporating the plaintiff was to promote the public interest and welfare, by' securing the construction of a railroad extending from the great lakes to the Pacific ocean; and to accomplish this purpose it had the right to contract with any company, and to grant to such company rights and privileges sufficient to carry out and consummate the purpose aforesaid.
But it is contended by counsel for respondent that the provision of section 2 of the act incorporating plaintiff, exempting the right of way from taxation, is forbidden by article 1 of the fourteenth amendment to the constitution, which provides that no state shall “deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” This article is a limitation upon the power of the states, and was intended to secure to all the people of a state, without regard to color, race or previous condition, the benefit and protection of equal laws. It was adopted to secure to the then lately emancipated race all the rights and protection of citizens. It forbids to the states the power to enact laws making any discrimination as to the rights of the citizens, and places all the inhabitants of the state on an absolute equality before the law. This equality is not disturbed by exempting certain property for public uses from taxation when the general public receive the benefits of such exemption.
Justice Field, in expounding the fourteenth amendment to the constitution (Co. of Santa Clara v. Southern Pac. R. Co. 18 Fed. Rep. 396-400), says:
“Until the adoption of the fourteenth amendment, there was no restraint to be found in the constitution of the United States against the exercise of such power (arbitrary taxation) by the states. In many particulars the states were previously limited; their sovereignty was a restricted one. They could not declare war, nor make treaties of peace. They could not enter into compacts with each other. They could not pass a bill of attainder, nor an ex post facto law, nor a law impairing the obligation of contracts. They could not interfere with the exercise of the powers nor obstruct the laws of the federal government. But in many other particulars the powers of the states were supreme, subject to no control by the constitution of the United States. The original amendments were only limitations upon the federal government, and did not affect the states. Among the powers held by the states was the power of taxation. When not interfering with any power or purpose or agent of the federal government, there was no limitation upon its exercise. Except as restrained by their own constitutions, the states might impose taxes upon any property within their jurisdiction; and, as said in the Delaware R. R. Tax Case, 18 Wall. 231, the manner in which its value was assessed and the rate of taxation, however arbitrary or capricious, were mere matters of legislative discretion; and it was not for the court to suggest in any case that a more equitable mode of assessment might be adopted than the one prescribed by the legislature of the state.
“ The first section of the fourteenth amendment places a limitation upon all the powers of the state, including, among others, that of taxation. After stating that all persons born or naturalized in the United States are subject to the jurisdiction thereof, are citizens of the United States, and of the state in which they reside, it declares that c no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person (dropping the designation, citizen) of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ The amendment was adopted soon after the close of the civil war, and undoubtedly had its origin in a purpose to secure the newly-made citizens in the full enjoyment of their freedom. But it is in no respect limited in its operations to them. It is universal in its application, extending its protective force over all men, of every race and color, within the jurisdiction of the states, throughout the broad domain of the republic. A constitutional provision is not to be restricted in its application because designed originally to prevent an existing wrong. Such a restricted interpretation was argued in the Dartmouth College Case, 4 Wheat. 518, to prevent the application of the provision prohibiting legislation by states impairing the obligations of contracts to the charter of the college, it being contended that the charter was not such a contract as the prohibition contemplated. Chief Justice Marshall, however, after observing that it was more than possible that the preservation of rights of that description was not particularly in view of the framers of the constitution when that clause was introduced, said: ‘It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.’ 4 Wheat. 494.
“All history shows that a particular grievance suffered by an individual or a class, from a defective or an oppressive law, or the absence of any law, touching the matter, is often the occasion and cause for enactments, constitutional or legislative, general in their character, designed to cover cases not merely of the same, but of all cases of a similar nature. The wrongs which were supposed to be inflicted upon or threatened to the enfranchised race, by special legislation directed against them, moved the framers of the amendment to place in the fundamental law of the nation, provisions, not merely for security of those citizens, but to insure to all men, at all times, and at all places, due process of law, and the legal protection of the laws. Oppression of the person and spoliation of property by any state were thus forbidden, and equality before the law was secured to all men. . . . With the adoption of the amendment the power of the states to oppress any one, under any pretense, or in any form, was forever ended, and henceforth all persons within their jurisdiction could claim equal protection under the laws. And by equal protection is meant equal security to any one in his - private rights — in his right to life, to liberty, to property, and to the pursuit of happiness. It implies not only that the means which the laws afford for such security shall be equally accessible to him, but that no one shall be subject to any greater burdens or charges than such as are imposed upon all others under like circumstances. This protection attends every one everywhere, whatsoever be his position in society, or his association with others, either for profit, improvement or pleasure. It does not leave him because of any social or official position which he may hold, or because he may belong to a political body, or to a religious society, or be a member of a commercial, manufacturing or transportation company. It is the shield which the arm of our blessed government holds at all times over every one, man, woman and child, in all its broad domain, wherever they may go, and in whatever relations they may be placed. No state — such is the sovereign command of the whole people of the United States — shall touch the life, the liberty, or the property of any person, however humble his lot, or exalted his station, without due process of law; and no state, even with due process of law, shall deny to any one within its jurisdiction the equal protection of the laws.
“ Unequal taxation, so far as it can be prevented, is, therefore, with other unequal burdens, prohibited by the amendment. . . . The fact to which counsel allude, that certain property is often exempted from taxation by the states, does not at all militate against this view of the operation of the fourteenth amendment in forbidding the imposition of unequal burdens. Undoubtedly, since the adoption of that amendment, the power of exemption is much more restricted than formerly, — but that it may be extended to property used for objects of a public nature is not questioned, — that is, where the property is used for the promotion of the public well-being, and not for any private end. Thus, property used for public instruction, for schools, colleges, universities, which áre open to all applicants on similar conditions, may properly be exempted. The public benefit is the equivalent to the state for the tax which would otherwise be exacted. If buildings used as churches for public worship are also sometimes exempted, it must be because, apart from religious considerations, churches are regarded as institutions established to inculcate principles of sound morality, leading citizens to a more ready obedience to the laws. Whatever the exemption, it can only be sustained for the public service or benefit received. The equality of protection which the fourteenth amendment declares no state shall deny to any one is not thus invaded.”
From this able consideration of the object, scope and purpose of the fourteenth amendment, by this able judge, it clearly appears that it was designed as a limitation upon the power of the states; that unequal taxation by the states, so far as it can be prevented, with other unequal burdens, is prohibited; that property may be exempted by the state from taxation without invadiug the provisions of the amendment, when the public benefit to be derived from such exemptions is equivalent to the tax that would otherwise be exacted; and that such exemption can only be sustained where the property exempted is used for the promotion of the public well-being. And so, if it were true that the plaintiff had been incorporated by the territory of Montana, and the right of way through the public lands exempted from taxation, considering the purpose for which the contract of incorporation was made, and the consideration for such exemption, viz., to promote the public welfare, and to secure the use of the road at all times for public purposes, such exemption from taxation would not have come within the prohibitions of the fourteenth amendment. But even if such exemption from taxation were prohibited tó the states and territories, there is nothing in the amendment or in the constitution that limits the power of the federal government in disposing of its own property upon such terms and conditions as it thinks best. On the contrary, the constitution gives the congress full power to dispose of the property of the United States without limitation.
For like reasons, if the limitations of the amendment operated upon the power of congress, still this exemption from taxation would not thereby be forbidden; under the provisions of the act incorporating plaintiff, the government derives a public benefit from the road. It retains the right to use the road for certain public purposes, and makes it a great national highway for the benefit and well-being of all the people. The public benefit to be derived from the road was thought by congress to be equivalent to the tax which otherwise would have been exacted. Congress had the right to judge of this matter, and to dispose of the property of the government as it thought best for the public gaood. Says Justice Field: “ Congress can undoubtedly exempt any agencies it may employ for services to the general government from such taxation as will, in its judgment, impede or promote their performance.” Id.
The benefits to accrue to the government by reason of the construction of the Northern Pacific Bailroad were deemed by congress sufficient, not only to exempt the right of way from taxation, but to justify a grant of the public lands. The contract — the act incorporating the company — is founded upon a mutual consideration, and cannot be impaired. Certainly, after they have become vested, after the contract has been performed, after the road has been constructed, upon the terms and conditions imposed in the contract of incorporation; and both parties are reaping the benefits of such contract, it is not within the competency of national, state or territorial legislation to nullify or make inoperative any of the terms of such contract. Legislation cannot disturb vested rights. It would be just as rational to hold that the land grant is within the prohibition of the fourteenth amendment as that the exemption from taxation is inhibited thereby; for the act of incorporation grants the odd sections of land for forty miles on either side of the line of the road to the company, without any compensation whatever, other than that to be received by the government from the construction of the road, while for other public lands it charges and receives a compensation for a grant of title.
It is within the constitutional power of congress to exempt property from taxation. Ill. Cent. R. Co. v. Co. of McLean, 17 Ill. 291; Matheny v. Golden, 5 Ohio St. 361; State of Ohio v. Com. Bank Cin. 7 Ohio, 125; State of New Jersey v. Wilson, 7 Cranch, 164; Gordon v. App. Tax Ct. 3 How. 133; Osborne v. Humphrey, 7 Conn. 335; State of New Jersey v. Branin, 3 Zab. 485; P. & W. R. R. v. Maryland, 10 How. 393; Prov. Bank v. Billings, 4 Pet. 514; State Bank of Ohio v. Knoop, 16 How. 396; Osborn v. Bank of U. S. 9 Wheat. 738. A state law imposing a tax upon property exempt from taxation by virtue of a valid act of congress is unconstitutional and void. Osborn v. Bank of U. S. supra.
Briefly, the situation is this: The United States owns the public lands, and has the right to dispose of them as it will. In order to bring about the construction of a railroad from Lake Superior to Puget Sound, which it might use for certain public and national purposes; to strengthen the government and to facilitate its operations; to promote the happiness and prosperity of the people; to consolidate the Union; and to invigorate and strengthen the nation, — it enters into a contract whereby it agrees to give certain of the public lands, and to exempt the right of way through such lands in the territories from taxation, in consideration that a road be constructed upon the terms and conditions named in the contract. The government had the right to make sucha contract. It had the unlimited right to dispose of its own property. The provision exempting the right of way from taxation was no more illegal than was the grant of lands to the company. Both the exemption and the grant were for the same purpose, viz., to aid in the construction of the road. A territorial legislature cannot defeat this solemn obligation. It cannot repeal an act of congress. It cannot take upon itself the attributes of sovereignty, and interfere in the disposal of property that does not belong to it. • Our organic act (section 6) forbids the territorial legislature from passing any law interfering with the primary disposal of the soil.
The national government is supreme within the limits of the constitution. When it speaks, its voice is sover eign, in those cases in which the people, “in order to form a more perfect union,” and to found a nation, surrendered their sovereignty. Taxation is the exercise of sovereign power. Taxation for national purposes is exercised by national authority; and for state purposes and property, it is exercised by state authority. Each is supreme within its proper jurisdictions. “ That the power of taxation is one of vital importance; that it is retained by the states; that it is not abridged by the grant of similar power to the government of the Union; that it is to be concurrently exercised by the two governments,— are truths which have never been denied. But such is the paramount character of the constitution that its capacity to withdraw any subject from the action of even this power is admitted. The states are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be considered,— if it may restrain a state from the exercise of its taxing power on imports and exports, — the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this power as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law absolutely repugnant to another as entirely repeals that other as if express terms of repeal were used.” Marshall, C. J., in McCullough v. Maryland, supra; Weston v. Charleston, 2 Pet. 466; Osborn v. Bank of U. S. supra. It follows, therefore, that the exemption of plaintiff’s right of way through the public lands in the territories from taxation was the exercise by congress of a constitutional power, and that the levy and assessment of a tax upon “twenty miles of railroad,” in Custer county, by the authorities thereof, by virtue of a territorial law, was without authority and is void; and this leads us to the next inquiry, viz.:
5. Has a court of equity jurisdiction to enjoin the col lection of a tax that has been assessed and levied upon property exempt from taxation, or, in other words, in. what cases, and under what circumstances, will the collection of taxes be enjoined? The collection of taxes is necessary to carry on the operations of government, and therefor e the right to levy and assess taxes for that purpose is elemental and sovereign. No government can exist without this right, and writs of injunction or other obstructions to the collection of taxes are always refused by the courts, except in certain defined cases. Says Benning, J., in Eve v. State, 21 Ga. 50: “ How can a government calculate with any certainty upon the revenues if the collection of taxes was subject to be arrested in every instance in which a tax-payer'or tax collector could make out a prima facie — a technical — case for arresting such collection ? Far better is it to let an individual pay the government what it demands of him, at the time of the demand, as he will be certain of getting it back with interest, after more or less delay, if it was not due.”
Therefore, it is the settled doctrine of the law, that, in order to entitle a person to equitable relief against an illegal tax, he must, by his bill, bring his case under some acknowledged head of equity jurisdiction/' There must be allegations which show his remedy at law is inadequate. It is not sufficient that he makes it appear that the tax is illegal merely. He must go further and allege special circumstances bringing his case under some recognized head of equity jurisdiction, such as that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or cast a cloud upon the title of his real estate. Says Judge Cooley: “ To entitle a party to relief in equity against an illegal tax, he must, by his bill, bring the case under some acknowledged head of equity jurisdiction. The illegality of the tax alone, or the threat to sell property for its satisfaction, cannot of themselves furnish any ground for equitable relief. In ordinary cases a party must find his remedy in the courts of law, and it is not supposed he will fail to find one adequate to his proper relief. Oases of fraud, accident or mistake, cases of cloud upon the title to one’s property, and cases where one is threatened with irremediable mischief, may demand other remedies than those the common law can give, and these, in proper cases, may be afforded in courts of equity.” Cooley, Taxation, 536.
Says Mr. Justice Field, in Dows v. City of Chicago, 11 Wall. 109: “Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interference of a court of equity to enjoin its collection. The illegality of the tax and the threatened 'sale of the shares for its payment constitute, of themselves alone, no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction, before the preventive remedy of injunction can be invoked. It is upon taxation that the several states chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. ... No court of equity will, therefore, allow its injunction to issue to restrain their action except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no reniedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or, where the property is real estate, throw a cloud upon the title of the complainant, before the aid of a court of equity can be invoked.”
Says Mr. Justice Hunt, in Haunewinkle v. Georgetown, 15 Wall. 548: “ It has been the settled law of this country for a great many years, that an injunction bill to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud; that it creates a cloud upon the title; that there is apprehension of a multiplicity of suits, or some cause for presenting a case of equity jurisdiction. This was decided as early as the days of Chancellor Kent, in Mooers v. Smedley, 6 Johns. Ch. 28, and has been so held from that time onward.”
The complaint herein alleges, as the special circumstances whereby the equitable interposition of the court is invoked, that Ouster county is insolvent; that if the plaintiff should pay the tax and recover judgment therefor against the county it would be paid in county warrants, worth but eighty cents on the dollar, and, therefore, that the remedy at law is inadequate; that the assessment, valuation and return of the assessor was made upon a blank form, which, when returned by the assessor, showed an assessment of $200,000, made by him on “ twenty miles of railroad and rolling stock; ” that the blank so certified and returned to the board of county commissioners has been lost, and the evidence, whether the sum so assessed is on real or personal estate, right of way or rolling stock of plaintiff, does not appear on the books of the county treasurer; nor since the loss of the assessment blank so filled out by the assessor, does it appear on any record or any archives of the county; and the proof thereof, which must be produced from other sources, is liable to he lost, and the plaintiff, by reason of the death of witnesses, may be unable hereafter to prove the assessment upon its.- right of way which it is now able to do; that notwithstanding the illegality of the valuation, assessment, and levy of taxes thereon, the defendant has a record thereof, and threatens to proceed, and is proceeding, to collect said tax, and the same stands on the books of the defendant; the treasurer of said county, and in his hands is a lien on the real estate of the plaintiff in said county, and is a cloud upon plaintiff’s title thereto, and that, un less enjoined, the defendant will levy upon and sell the personal and real property of the plaintiff for the tax so .assessed and returned. The plaintiff abiding its complaint, after demurrer sustained, the allegations thereof are taken as true, and so it must be taken as a fact that the assessment and the assessor’s return, showing the property assessed, is lost, but the valuation and levy was •transferred in the aggregate to the books of the treasurer ■and a record made showing the amount of the tax to be paid, which tax is a lien upon the plaintiff’s real estate; .and that this valuation and tax was assessed and levied upon the plaintiff’s right of way, which fact the plaintiff .is now ready to make appear, but the evidence thereof may be lost. The record of the valuation and tax on the treasurer’s hooks is therefore perfect, and the lien created thereby complete. There is nothing appearing of record to show that such valuation and assessment was made ■upon property not subject to taxation, or that the same was not assessed in the manner provided by law. Our ¡statute (sec. 1001, E. S. p. 616) provides as follows: “Every tax levied under the provisions of this chapter is hereby made a lien against any and all the property .assessed, and such lien shall attach at the time of such .assessment, and shall not be satisfied or removed until such taxes are paid.”
A lien upon real estate appearing of record, with •nothing of record to show but the same may be enforced, •and, requiring evidence aliunde to defeat it, is a cloud on the title of such real estate. The defendant, unless enjoined, will enforce this lien, sell the real estate, and -deliver-to the purchaser a deed for the property so sold. Our statute further provides (sec. 205, p. 442, E. S.) : “Every conveyance or other instrument conveying or affecting real estate, which shall be acknowledged or proved and certified as hereinafter prescribed, may, together with the certificate of acknowledgment or proof, he read in evidence without further proof.”
This statute seems to do away with the common law doctrine that the recitals in a tax deed are not evidence against the owner of the property, but must be proved by evidence aliunde, and to make the tax deed prima facie evidence of title. If the statute has this effect, then a party claiming under a tax deed only need to introduce the deed in evidence to make out his case. The production of the deed would be prima facie proof that the property described in it was subject to taxation, and that the valuation, assessment and levy was made in pursuance of the statute. That the assessment and levy was not made according to law, or that the property was exempt from taxation, would have to be proved by the adverse party, in order to defeat the claimant’s tax title. Such a deed, then, would be a cloud upon the title, and a court of equity in a proper case would interpose by injunction to prevent such a cloud being cast.
Says Sawyer, J., in Huntington v. C. P. R. R. Co. 2 Sawy. 514: “The court will enjoin the casting of a cloud upon the title in cases wherein the cloud, when cast, would be removed.”
In the case of Banking Co. v. Mayor of Jersey City, 2 Beas. 228, the chancellor says: “But again, the court has jurisdiction for the purpose of preventing the delivery of deeds which will be clouds upon the complainant’s title. Theáe deeds will not be void upon their faces. The land is prima facie liable to taxation. The record is perfect. The defendants can make the necessary proof to enable them to recover the land. The defense against the validity of the deeds depends upon matters outside the record. The complainants ought not to have their title put in jeopardy by meeting the issue just when the defendants choose.”
In Van Doren v. Mayor of New York, 9 Paige, 389, Chancellor Kent said: “Where the claim of the adverse party to the land is valid upon the face of the instrument or proceedings sought by be set aside, as where the de fendant has procured and put upon record a deed obtained from the complainant by fraud or upon a usurious consideration which requires the establishment of extrinsic facts to show the supposed conveyance to be inoperative and void, a court of equity may interfere and' set it aside as a cloud upon the real title of the land.”
If the tax deed is presumptive evidence of a good title in the purchaser, and may be introduced in evidence without first establishing the regularity and legality of the proceedings up to the time of the execution of the deed, then such deed creates a cloud upon the title which a court of equity may interfere to set aside; or in a case where the record is perfect and complete, showing neither the illegality of the tax or irregularity in the assessment, valuation or levy of the same, equity will interpose and enjoin the execution of the deed, where the bill of proper averments shows the tax or the proceedings to be void. Judge Cooley clearly states the law, referring to numerous decisions, as follows: “If the alleged tax has no semblance of legality, — if, upon the face of the proceedings, it is wholly unwarranted by law, or for any reason totally void, so that any person inspecting the record and comparing it with the law is at once apprised of the illegality,— the tax, it would seem, could neither constitute an incumbrance nor an apparent defect of title, and therefore, in law, could constitute no cloud. If this be so, the jurisdiction which is exercised by courts of equity to l’elieve parties by removing clouds upon their titles, could not attach in such cases. When, however, the illegality or fatal defect does not appear on the face of the record, but must be shown by evidence aliunde, so that the record would make out a prima facie right in one who should become purchaser, and the evidence to rebut this case may possibly be lost, or be unavailable from death of witnesses, or other causes, or when the deed, given on a sale of the lands for the tax, would, by statute, be presumptive evidence of a good title in the pur chaser, so that the purchaser might rely upon that for a recovery of the lands until the irregularities were shown, the courts of equity regard the case as coming within their ordinary jurisdiction, and have extended relief on the ground that a cloud on the title existed or was imminent.” Cooley. Taxation, 542, 548.
The allegations of the complaint show that the assessment upon which the tax herein was levied is lost, and that there is nothing of record by which it appears that said tax was assessed and levied upon plaintiffs right of way through the public lands. Therefore there is nothing of record showing that the tax is illegal and void; and, by comparing the record with the law, the illegality of the tax does not appear. Such illegality, by the averments of the complaint, must be shown by evidence aliunde, which the plaintiff is now ready to make appear, but the evidence thereof is liable to be lost. The books of the treasurer show the valuation and the tax. This record, in his hands, is complete. The illegality of the tax does not therein appear, so that the tax thereby evidenced is, by the statute of the territory, a lien upon plaintiff’s real estate, and the record would make a prima facie right in one who should become a purchaser thereof for said tax.
The averment of the complaint that the plaintiff is now able to show that the tax was levied upon property exempt from taxation; that the assessment was not made in the manner provided by law; and that the evidence whereby this may be shown is, by the death of witnesses, liable to be lost,— are sufficient to bring the case within the acknowledged jurisdiction of a court of equity. Cooley, Taxation, 543.
The averment that Custer county is unable to pay its debts, except in warrants worth eighty cents on the dollar, conclusively shows that plaintiff’s remedy at law is inadequate. If the plaintiff should pay the tax and recover a judgment for the amount of the same against the county, such judgment would be paid in warrants drawn upon the county, which are worth but eighty cents on the dollar, thereby causing a loss to the plaintiff of twenty cents on each dollar of the amount paid as taxes. A court of equity will interfere when, by reason of the insolvency of the defendant, an irreparable injury is threatened to the plaintiff. Equity will interfere to enjoin the collection of a tax levied upon property exempt from taxation. See Board of Com’rs v. Templeton, 51 Ind. 266; Com’rs v. Markle, 46 Ind. 96; Lafayette v. Cox, 5 Ind. 38; Koffman v. Keightley, 24 Ind. 509; Nave v. King, 27 Ind. 356, 475; Harney v. Indianapolis R. R. 32 Ind. 244; Merrill v. Plainfield, 45 N. H. 126; Webster v. Town of Harwinton, 32 Conn. 131; Ferrett v. Town of Sharon, 34 Conn. 105; Prettyman v. Sup’rs, 19 Ill. 406; Clark v. Sup’rs, 27 Ill. 305; Taylor v. Thompson, 42 Ill. 9; Cleghorn v. Postlewaite, 43 Ill. 428; Veiley v. Thompson, 44 Ill. 9; Allison v. Louisville R. R. Co. 9 Bush, 247; Hooper v. Ely, 46 Mo. 505; Newmeyer v. M. & M. R. R. Co. 52 Mo. 91; Williams v. Peinney, 25 Iowa, 436; Hanson v. Vernon, 27 Iowa, 28; Zorger v. Tp. of Rapids, 36 Iowa, 175. The authority of the supreme court of the United States in Osborn v. Bank of U. S., supra, seems to be conclusive upon that question for this court. In that case the officers of the state of Ohio, under a law of that state, levied a tax upon a branch bank of the United States at Ohillicothe. It was held that the property was exempt from taxation, and its collection enjoined.
A franchise is property. It is the office of an injunction to protect property from destruction. The right to construct a railroad through public lands, and the exemption of its right of way from taxation in the territories, is a franchise. It is a right based upon and growing out of a contract. It is property, and valuable property; but it is such property that taxation might destroy. The right of way through this territory is about eight hundred miles in length. If this property is exempt from taxation, an annual tax thereon at the rates claimed in the complaint might cripple, if it did not destroy, the franchise. The plaintiff, in the construction of its road, had the right to rely upon the terms of its contract with the government. The imposition of a tax upon its right of way is an invasion of its contract, and such a violation thereof as the constitution prohibits, and as equity will enjoin.
Says Chief Justice Marshall, in Osborn v. U. S. Bank, supra: “The appellants admit that injunctions are often awarded for. the protection of parties in the enjoyment of a franchise; but deny that one has ever been granted in such a case as this. But although the precise case may never have occurred, if the same principle applies, the same remedy ought to be afforded. The interference of the court in this class of cases has most frequently been to restrain a person from violating an exclusive privilege by participating in it. But if, instead of a continued participation in the privilege, the attempt be to disable the party from using it, is not the reason for the interference of the court rather strengthened than weakened ? Had the privilege of the bank been exclusive, the argument admits that any other person or company might have been enjoined,- according to the regular course of the court of chancery, from using or exercising the same business. Why would such person or company have been enjoined? To prevent a permanent injury from being done to the party entitled to the franchise or privilege; which injury appellants say cannot be estimated in damages. It requires no argument to prove that the injury is greater if the whole privilege be destroyed than if it be divided; and so far as respects the estimate of damages, although precise accuracy may not be attained, yet a reasonable calculation may be made of the amount of the injury, so as to satisfy the court and jury.. It will not be pretended, in such a case, an action of law could not be maintained, or that the materials do not exist on which a verdict might be found and a judgment rendered. But in this and many other cases of continuing injuries, as in the case of repeated ejectments, a court of chancery will interfere. The injury done by denying to the bank the exercise of its franchise in the state of Ohio is as difficult to calculate as the injury done by participating in an exclusive privilege. The single act of levying the tax, in the first instance, is the cause of the action at law, but that affords a remedy only for the single act, and is not equal to the remedy in chancery, which prevents its repetition and protects the privilege.” See M. & B. Co. v. Jersey City, 1 Beasl. 227; P. & H. R. R. Co. v. Jersey City, 1 Stockt. Ch. 434.
And so if the property is exempt from taxation, and an action at law would, in a single instance, afford relief against a tax unlawfully levied thereon, yet the relief is inadequate and is not equal to the remedy in equity, which interferes to prevent future taxes and a multiplicity of suits, and protects the franchise from invasion and destruction.
Prom this consideration of the case our conclusions are as follows:
1. An action or controversy which turns upon the existence, effect and operation of an act of congress is an action arising under such act, and a suit brought to determine such controversy is properly commenced in the district court of the territory, sitting to hear and determine causes arising under the constitution and laws of the United States; and especially is this the case when the action is brought by or against a corporation chartered by an act of congress.
2. Plaintiff’s right of way through the public lands is an easement therein, and such an interest in the land that personal articles attached to the soil and annexed to the easement, within the boundaries of the right of way, become a part of the land, and therefore partake of and are included in the exemption from taxation that belongs to the right of way, and hence that a tax levied upon “twenty miles of railroad” constructed upon, over or through plaintiff’s right of way in the territories of the United States, is a tax levied upon property that is exempt from taxation, and therefore void.
3. That the act of congress incorporating plaintiff is a contract between the government and the incorporators and their successors, and it is not within the constitutional power of congress, or of a territorial legislature, to impair the obligations of this contract, which would he done by the imposition of a tax upon plaintiff’s right of way, by the authority of congress or the territorial legislature.
4. That the fourteenth amendment to the constitution of the United States is a limitation upon the sovereignty of the states, and was adopted by the people of the United States to secure to the inhabitants of each state equal laws and equal protection of the laws, without regard to race, color or previous condition.
5. That this limitation applies to the subject of taxation, and forbids the states or territories from exempting property from taxation, except in those cases wherein the property is devoted to public uses in which all the people are equally benefited.
6. That it is within the constitutional power of congress to exempt the property of the United States from taxation. The government may dispose of its own property upon such terms and conditions as it deems proper, and congress is the sole judge as to how this property shall be disposed of.
1. It was competent for congress to charter the Northern Pacific Eailroad Company; to grant to it public lands; and exempt its right of way through such lands from taxation.
8. There is a consideration for the contract contained in the charter incorporating the Northern Pacific Eail road Company, which consideration is found in the public benefits to be derived to the whole people of the United States by reason of the construction of such road.
9. When rights have become vested under a valid contract, legislative authority cannot invalidate such contract or disturb such rights.
10. The fourteenth amendment to the constitution is not a limitation upon the power of congress in the disposal of the property of the United States.
11. In order that a county assessor may have jurisdiction to assess property for taxation he must follow the statute.
12. An assessment made in a manner not authorized by statute, and not in substantial compliance with its provisions, is void and equivalent to no assessment at all.
13. An assessment that values real and personal property in a mass is void.
14 An assessment should show a proper description of the property, and the real estate and personal property should be separately and distinctly assessed and valued.
15. An assessment that is in such a condition that it cannot be equalized by the board of commissioners, sitting as a board of equalization, is void.
16. In assessing railroads for taxation the assessor must follow the provisions of the statute.
17. A tax will not be restrained upon the ground that it is irregular or erroneous.
18. To entitle a party to relief in equity, against an illegal tax, he must bring his case under some acknowledged head of equity jurisdiction.
19. Courts of equity will enjoin the casting of a cloud ^pon a title, in cases wherein the cloud itself, when cast, would be removed.
20. If the record showing the valuation and levy of a tax is complete on its face, such record creates a lien upon the real estate against which the tax is assessed, and is a cloud upon the title of the owner.
21. If a tax deed is made prima facie evidence of the purchaser’s title, and may be introduced in evidence, without showing the regularity of the proceedings up to the delivery of the deed, such deed is a cloud upon the title of the owner, and equity would interfere, when, by the averments of the bill, it appears that the property is exempt from taxation, or that the assessment was void.
22. If the illegality of the tax appears upon the face of the proceedings, no cloud is cast upon the title.
23. Equity will enjoin the collection of a tax levied upon property that is exempt from taxation, to prevent a multiplicity of suits and to afford a complete remedy.
24. Equity will interpose to prevent the destruction of a franchise.
25. A franchise is property, and in the case of a continuing injury to the same, courts of equity will prevent a repetition of the injury and protect the franchise.
26. Any encroachment upon the quiet enjoyment of an easement, whether created by grant or prescription, will be prevented by injunction. Webber v. Gage, 39 N. H. 182; Seymour v. McDonald, 4 Sandf. Ch. 502; Holmes v. Shreve, 3 Green Ch. 116; Hills v. Miller, 3 Paige, 254; Trustees, etc. v. Cowen, 4 Paige, 510.
27. Equity will interfere to protect rights, when it sufficiently appears that the evidence by which such rights can be established is liable to be lost.
The demurrer to the complaint ought to have been overruled, and the judgment is, therefore, reversed, with costs, and the cause remanded for a new trial.
Judgment reversed.
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] |
Galbraith, J.
This is an appeal from a judgment rendered by the district court, affirming the judgment of the probate court of Custer county, whereby the appellant was adjudged to pay a penalty of $50 for the violation of “An act to provide for licensing commercial travelers,” appi^ved July 22, 1879. The facts agreed upon were as follows: That the defendant Farnsworth was at the time hereinafter mentioned a commercial traveler in the employ of Auerbach, Finch & Van Slick, dry goods merchants, doing business in the city of St. Paul, state of Minnesota. That on or about the llth day óf June, 1882, at Miles City, county of Custer and territory of Montana, the said Farnsworth, as such commercial traveler in the employ of the firm aforesaid, did offer to sell, and did sell, goods, waives and merchandise, similar to certain samples, which he then and there had and carried, to be delivered at a future time, and without having first obtained a license therefor. That this appeal is properly in court, and is brought to test the constitutionality of the act of the legislature approved July 22, 1879.
The question of the validity of the above act of the legislature under a similiar state of facts was considered and determined at the present term of this court in the case of Territory v. Farnsworth, ante, p. 303.
Judgment affirmed, with costs.
|
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Wade, C. J.
This is an action to quiet the title to a mining claim and for other relief, in which there was a demurrer to the complaint sustained, and a judgment for defendant, from which.plaintiffs appeal. The complaint substantially alleges that, in the year 1882, Julia D. Saunders, who is the wife of. her co-plaintiff, Cole Saunders, and^ one E. G-. Marshall, and this defendant, respondent herein,. were the owners of, and tenants in common in, the “Belle of the Boulder” and “Eclipse” quartz lode mining claims, situate in the “Boulder mining district,” Jefferson county, and entitled to the possession thereof; the said Julia D. Saunders owning the undivided one-half of each of said claims, and the defendant and said Marshall owning the other undivided one-half thereof; that being so tenants in common, it was agreed by and between the said Julia D. Saunders and the respondent, that the respondent should do the representative work necessary 'under the laws of the United States, to be done in and upon said mining claims to represent the same for the year 1882, in consideration whereof the said Julia D. Saunders promised to pay the respondent the sum of $)100 therefor, that being the portion of such representative work necessary to preserve plaintiffs’ interest in, and to, said mining claims from being subject to relocation; that the appellants, relying on the promise of - the respondent to do, or caúse to be done, such representative work, neglected to do and perform said work, or cause the same to be done, before the 31st day of December, 1882; that the respondent, designing to cheat and defraud the said Julia D. Saunders of her intei’est in said mining claims, after the time for representing the same had passed, relocated a portion of said claims as the Baltimore lode mining claim, and ousted the appellants of their possession of the premises; that appellants desire to represent said claims for the year 1883, but that respondent will not permit them so to do, and by force and threats prevents them from performing any work on said claims; that respondent is insolvent and unable to respond in damages, and that appellants have no speedy or adequate remedy at law. Wherefore, they ask that the “Baltimore ” location be set aside so far as the same embraces any portion of the “Belle of the Boulder” and “Eclipse” location; that appellants be let into the possession of said claims, and that respondent be enjoined from preventing appellants representing the same.
It appears from these allegations that the ‘ ‘ Belle of the Boulder ” and “Eclipse” claims were not represented for the year 1882, and the reason assigned for not representing them is that promise and agreement of respondent that he would do the work for the purpose, which he failed to perform. This question is presented: Does a location, with a promise to represent, save a mining claim from forfeiture or protect it from relocation after the time for representation has expired? The act of congress of May 10, 1872 (United States Revised Statutes, section 2324), under which the claims in question were located, provides as follows: “On each claim located after the 10th day of May, 1872, and. until a patent has been issued therefor, not less than $100 worth of labor shall be performed, or improvements made during each year; . . „. and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made.”
Title to the public mineral lands is acquired and held by discovery, location and representation, in the manner provided by law. Representation from year to year keeps alive the grant. If representation fails, the grant fails, and the ground is open to relocation and purchase. The terms of the law are absolute. There are no exceptions. If the representative work for the year is not performed, the ground located becomes again a part of the public domain. An agreement to represent is not a representation. After the period of representation has expired, an agreement to represent, not performed, cannot save a claim from forfeiture and relocation. Such an agreement would not have the effect to keep alive the grant. It would not revive a right already lost. It would not tide over the period of representation from year to year, and prevent a relocation of the ground. It is not material for what reason there has been a failure to perform such an agreement. The conclusive fact is, that the ground has not been represented. Congress alone has authority to dispose of the public lands. If an agreement between individuals could prevent a relocation of the public mineral lands, then the primary disposal of the soil may be taken from congress and confided to the contracts of private parties. The fact that these parties were tenants in common does not affect the question of representation. Mining claims so owned must be represented as if owned by one person. Eepresentation is a unity. The co-owners may cause representative work to be done on the claim, according to their respective interests; but when' completed it must amount to one whole representation; otherwise, the claim is not protected from relocation. Any co-owner or co-tenant may represent the claim, and compel those interested with him to bear their proportion of the expenses; but the claim must be represented, and the agreement of a co-tenant to bear his proportionate share of the expenses is not a representation, and does not relieve him from the consequences of a failure to represent.
The complaint alleges that the respondent promised to represent said mining claims, and that the appellant, Julia D. Saunders, in consideration thereof, agreed to pay him $100 therefor, that being the portion of such representative work necessary to preserve her interest in the claims. But the necessary work for that purpose was a full and complete representation of the claims. There was no consideration for the promise of respondent to represent his own interest or that of Marshall. He was, therefore, under no legal obligation to represent the claims for himself or Marshall. And if an agreement to represent could, in any case, protect a claim from relocation, the agreement in question is wholly insufficient, for it only provided for one-half the work necessary to represent the claims. If the respondent had performed the $100 worth of representative work fo*r Julia D. Saunders, it would have been of no avail in protecting the claims, unless the interest of respondent and Marshall had been represented, and this was not provided for.
The “Belle of the Boulder” and “ Eclipse ” claims not having been represented during the year 1882, they became thereby a part of the public mineral lands, and subject to relocation on the 1st day of January, 18S3. If the respondent has violated his contract, he is liable to damages for a breach thereof; and if the relations between him and Julia D. Saunders were such as to make him her trustee in the location of the “Baltimore” claim, a proper action would so declare him, and protect her interest therein; but there is nothing in the complaint to invalidate the “ Baltimore ” location and claim.
Judgment affirmed.
|
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] |
Galbraith, J.
The appellants in this case were indicted for robbery. There was a demurrer to the indictment, which was overruled.
The appellant James Lane, upon his demand, was granted a separate trial, and was tried and convicted of robbery in manner and form as charged in the indictment. Judgment was duly rendered, and from that judgment there is this appeal. There was a motion for a new trial, and a motion in arrest of judgment. The motion for a new trial was made upon the following-grounds, viz.:
1. That the court misdirected the jury in a material matter of law.
2. That the court admitted illegal evidence.
3. That the verdict is contrary to law.
4. That the verdict is contrary to the evidence.
5. That the court erred in overruling the demurrer of the defendants to the indictment.
The motion in arrest of judgment was for the reason “ that the facts stated in the indictment do not constitute a public offense.” The same objection is presented by the demurrer, and will be disposed of when we come to its consideration.
It does not appear that the exception to the refusal of the court to withdraw certain testimony of the witness Chizum from the consideration of the jury, which is the only evidence complained of as being illegal, is contained in any bill of exceptions settled and signed by the judge who presided at the trial, or filed with the clerk as required by law. Secs. 348, 349 and 350 of Crim. Pr. Act.
The same may be said, also, in relation to the objections urged as reasons for granting a new trial, viz.: that the verdict is contrary to law and the evidence. The evidence is not contained in any bill of exceptions which was settled and signed by the judge, or filed with the clerk, and will not, therefore, be considered by this court. There is nothing in the record to show that the evidence, or any part thereof, was settled by the judge in any way whatever.
We will not say that the verdict is contrary to evidence, unless the evidence is properly before us; and whether or not, in this case, the verdict is contrary to law, depends so much upon the evidence that we cannot say that it is so, unless we can consider the evidence. The claim that “the court misdirected the jury in a material matter of law ” is for the reason that it gave certain instructions, and refused to give certain others which were requested by the defendant. We cannot say whether or not the instructions so given and refused were applicable or inapplicable to the evidence, which, as we have already stated, is not before us.
It only remains to consider the demurrer to the indictment. The only objection raised by the demurrer relied upon is, that there is not a sufficient description of the property alleged to have been stolen. The description was as follows: “And $40 in money, a more 'particular description of which said money is now here, to the said grand jurors, unknown, of the value of $40, of the goods, chattels and money of the said Thomas Hoeffner.”
In the case of The Territory v. Shipley, 4 Mont. 468, after stating the requirements which should be complied with in relation to describing property alleged to be stolen, in indictments for larceny, we said as follows: “These requirements have, as their ultimate effect, fairness towards the defendant. Any description, therefore, which is not set forth with sufficient certainty to satisfy the above requirements, or assign a good and sufficient reason for the failure so to do, may be taken advantage of by demurrer. The facts that are thus required to be set out are not, indeed, essential constituents of the crime. They are not vital to the accusation, being merely matters of description. But where they are not set forth, the reason for non-compliance with these rules should be stated in the indictment. The allegation that such facts are unknown to the grand jury, where such is the case, would be an excuse for such non-compliance. This is not a mere formal allegation, for it has been often held that if it be shown that the particular fact was known to the grand jury, the indictment would be bad, or that the judgment should be arrested or reversed, or the defendant acquitted.”
In the indictment before us, although the description of the money set forth does not comply with what are regarded as the fundamental requirements of the description of property alleged to he stolen, yet the excuse for such non-compliance is given, viz.: that “a more particular description of which said money is now here, to the grand jurors, unknown.” This excuse remedies the faulty description in the indictment. Whether or not such description was in fact known to the grand jurors could only appear in this case from the evidence, which, as before stated, will not be considered. This disposes of all the errors specified.
The judgment is affirmed.
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] |
Galbraith, J.
This is a motion to dismiss the appeal from an order striking the complaint from the files, and overruling a motion to allow it to be amended. It is claimed that this is an appealable order, under the pro visions of the Code of Civil Procedure (R S. 1879, § 408); that “ an appeal may be taken from a final judgment in an action on special proceeding commenced in the court in which the same is rendered;” and that the order striking the complaint from the files is a final judgment, within the meaning of this provision. But it was necessary that something more should be done before it can be said that a final judgment was rendered in the action. For aught that appears in the transcript, this action is still pending in the district court. The plaintiff might still, upon a proper showing, move to amend his complaint by adding the verification. He might have leave to file another complaint. The striking of the complaint from the files does not terminate the action. In Lamb v. McCanna, 14 Minn. 513 (Gil. 385), and afterwards affirmed in Searles v. Thompson, 18 Minn. 316 (Gil. 285), it was held that “an appeal will not lie from an order made on the trial of an action dismissing the action.” This is a step nearer the rendition of a final judgment in the action than the order made by the court in this case. In the case of Lamb v. McCanna, supra, the court, by Gilfillan, C. J., says “that the appeal must be from the judgment, or from the order on the motion for a new trial.” “ An order which does not determine the controversy, but leaves it to proceed, is not appealable.” 3 Estee, Pl. 406. In our opinion, the appeal does not lie from an order refusing to allow an amendment to the complaint, or striking the complaint from the files. The appeal is dismissed.
(All the judges concur.)
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Galbraith, J.
This action was originally brought in the justice court of Meagher county. The facts were as follows, viz.: The complaint — after alleging in substance that the appellant is now, and was at the time of the injury complained of, a corporation organized under the laws of the United States, and the owner of a certain railroad running through the territory of Montana and a portion of Meagher county, in said territory; and that the respondent was the owner of a certain mare, of the value of $160, running in an inclosure adjoining the track and ground occupied by the railroad of the appellant, in-the county of Meagher; and that on or about the 7th day of October, 1883, without the fault or neglect of the respondent, the said mare strayed upon the ground occupied by the railroad of the appellant; and that the appellant, at the time and place above stated, so carelessly and negligently run its locomotives and cars that the same ran over the mare and killed her, to the damage of the respondent in the sum of $160 — contains the following averment:
“That heretofore, to wit, on the 12th day of October, 1883, at the said county of Meagher, and before the bringing of this action, under and by virtue of an act passed by the legislature of the territory of Montana, approved February 23, 1881, entitled ‘ An act to provide for the payment of stock killed or injured by railroads,’ and an act amendatory thereto, approved March 2, 1883, this plaintiff, having made and filed the necessary affidavits, and having duly served notice upon said defendant, and the necessary appraisers having been appointed to appraise the value of said mare, which valuation was duly assessed and returned by said appraisers to said defendant, fixing the value of said mare at the said sum of $160, has complied with the provisions of the aforesaid act, and the amendment thereto; that since the due return of the aforesaid appraisers more than thirty days have elapsed before the bringing of this action, and the said defendant has not paid the said sum of $160, or any part or portion thereof.”
The answer was in substance as follows: It denies that the respondent was the owner of the mare, or that she was of any greater value than $80, or that it was through the negligence of the appellant that she was killed, or that she strayed upon the railroad without the fault of the respondent. It affirmatively alleges that the animal was killed through the fault and negligence of the respondent in permitting it to depasture in a field through which the appellant’s railroad runs, which was not fenced, so as to prevent it from straying upon the track; and that it was while the appellant was carefully operating its road, and running locomotives and cars' thereon, as it might lawfully do, that the animal strayed upon the track of the appellant, and in consequence-thereof, and without the fault or negligence of appellant, was accidentally run over and killed.
The replication denied that the animal was killed through any negligence of the respondent. It admits that the inclosure was not fenced at the railroad, and that the animal strayed from such inclosure upon the track. It avers that said mare was rightfully pastured there, and strayed upon the track without any fault, omission or neglect of the respondent, and was killed and destroyed through the want of care and negligence of said defendant ... in the operating and management of its said locomotive and cars, and that the mare was of the full value of $160, as alleged in the complaint.
Judgment was rendered in the justice court against the appellant, and in favor of the respondent, for the sum claimed in the complaint and the costs of suit. Prom that judgment there was an appeal to the district court, which, upon motion of the respondent for judgment on the pleadings for the sum claimed in the complaint, rendered judgment for said sum, with costs. Prom that judgment there is this appeal.
The questions presented relate to the validity of the act of the legislature mentioned in the complaint. The provisions of this law, necessary to be stated, are as follows: The first section of this act makes railroad companies operating any railroad in the territory liable for damages for damaging or killing any domestic animal by running its engines or cars over or against said animal. Section second was amended so as to read as follows:
“ If the owner of the animal or animals so killed, or his or her authorized agent, shall make affidavit before some officer authorized to administer oaths, that he or she was the owner or authorized agent of the owner of the recorded brand found upon the animal or animals so damaged or killed at the time of such killing or damaging, and such person shall, within six months after such killing or damaging, deliver such affidavit to the agent or an officer of such company or corporation, or shall make affidavit that the animal damaged or killed as aforesaid had no recorded mark or brands, and that he or she is the owner of such animal, describing it; and the corporation or company shall pay to such person delivering such affidavit, or such affidavit last as aforesaid, as follows: Schedule: Yearlings, each $23; two year old, each $27; cows, three years old and over, each $30; steers (unbroken), three years old and over, each $45; steers (work cattle), each $50; sheep, each $3; milch cows, thoroughbred and graded cattle and sheep shall be paid for at their cash value. Provided, that no railroad company shall, at any time, be required to pay more than the market value of any animal killed or damaged. In all cases where such railroad company or corporation shall kill any of the stock mentioned in this act, and for which no price or sum is fixed, the owner or agent of- such stock shall, after the filing of such affidavit of ownership as aforesaid, select some disinterested freeholder of the county where such killing took place, and shall notify such company or corporation of such selection; and such company or corporation shall, within three days thereafter, select some suitable person to act with the person so selected, and the two so selected shall select a third, and the three so selected shall, without delay, proceed to appraise the value of the stock so killed, a majority of which three appraisers shall be sufficient to determine the same, and shall certify under oath such appraisement to an agent of such company or coi’poration. Ixi case such railroad company or cox-poratioxx shall refuse or neglect to appoint such appraiser, it shall be the duty of the justice of the peace nearest to the place in the county where the stock is so killed, to select oxie disinterested persoxi as appraisex’, axid to administer to him an oath to honestly appraise the value of such stock, which appraiser shall, without delay, proceed to act in conjunction with the person selected by the owner, axid they shall at once proceed as hereinbefore provided for them as appraisers; and such railroad or corporation shall, within thirty days after the receipt of certificate, pay to the owner of such stock so killed, or his or her agent, the amount of such appraisement, together with all the costs as aforesaid; and in all cases where the value of such stock .is established by this act, such company or corporation shall pay for such stock within thirty days after the delivery of .the affidavit of ownership of stock as hereinbefore provided; and if said company or corporation shall fail to pay for said stock within the time as hereinbefore provided, the owner of such stock may commence proceedings in any court of competent jurisdiction for the amount found to be due and owing for such stock so injured or killed; and the findings of such appraisers shall be taken and held to be conclusive evidence of the value and ownership of, and the injury to, such stock, and the court shall add and tax as costs in the action, the costs of the proceedings upon the appraisement hereinbefore specified.”
It will be observed that the animal alleged to be killed in this case did not belong to any of the classes set forth in the above schedule. Also, that the pleadings show that, before the commencement of the action, the respondent had complied with the provisions of the above law relative to the appointment of appraisers; and that said appraisers had assessed the value of the animal alleged to be killed, and fixed the value thereof at $160. The section of the law under which the appraisers were appointed provides that “the findings of such appraisers shall be taken and held to be conclusive evidence of the value and ownership of, and injury to, such stock.” The court in rendering judgment upon the pleadings must have done so in pursuance of this law, for the value of the animal alleged in the complaint was denied in the answer. The law prevents the railroad company from exercising its right of appeal from the findings of the appraisers; thus depriving it of the right of trial, by jury. This provision of the law in relation to the appointment of appraisers is not in accordance with the constitution and laws of the United States, and is, therefore, invalid. Their act, therefore, in fixing the value of the animal killed was unauthorized. That the law was invalid in this respect is virtually admitted in the argument for the respondent. This is sufficient for the disposal of this case, and renders i nnscessary the„ consideration of the other question presented, viz., the making of railroad companies liable for stock they may kill, irrespective of negligence.
The judgment is reversed, with costs, and the cause remanded for a new trial.
Judgment reversed.
|
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JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Colton Jack Fenner (Fenner) appeals the portion of his sentence ordering him to pay restitution to the victim, Mitchell Martin (Martin), in the amount of $6,418.33.
¶2 The following issue is presented for review:
¶3 Did the District Court err by ordering Fenner to pay restitution in the amount of the full pecuniary loss of the victim’s medical and dental expenses, as set forth in the victim’s affidavit?
¶4 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On May 4,2012, Fenner believed that another vehicle had cut him off in traffic. Fenner followed the vehicle until it came to a stop, approached the vehicle, and punched the driver, Martin, through the driver’s open window. After Martin exited the car, Fenner struck Martin in the face with a baton-like weapon.
¶6 The State charged Fenner with three counts of assault with a weapon. Fenner entered into a plea agreement with the State on September 17,2012, in which he agreed to plead guilty to one count of assault with a weapon and one count of criminal mischief. At sentencing, the Pre-Sentence Investigation (PSI) Report included Martin’s affidavits, which indicated that Martin had suffered $6,418.33 in medical and dental expenses related to the assault. The PSI also indicated that Martin’s insurer paid for some portion of that total. Fenner argued that, since the insurer had paid for some of the damage and had not included any affidavit on its right to recover, Martin was only entitled to a lesser sum of the pecuniary loss. The District Court rejected that argument and required Fenner to pay $6,418.33 in restitution to Martin.
STANDARD OF REVIEW
¶7 We review a court’s imposition of sentence for legality and abuse of discretion. State v. Sharp, 2006 MT 301, ¶ 5, 334 Mont. 470, 148 P.3d 625.
DISCUSSION
¶8 If a sentencing judge finds that a victim has sustained pecuniary loss, the judge shall require payment of full restitution to the victim. Section 46-18-201(5), MCA. A victim of pecuniary loss includes the person who suffers bodily injury, and the person’s insurer, to the extent that the insurer has reimbursed the victim for the pecuniary loss. Section 46-18-243(2)(a)(i)(A)-(iv), MCA. “Pecuniary loss” includes all special damages that a person could recover against the offender in a civil action against the defendant. Section 46-18-243(l)(a), MCA. Likewise, a defendant may assert the same defenses in opposition of restitution that the defendant could raise in a civil action for damages. Section 46-18-244(2), MCA.
¶9 At sentencing and on appeal, Fenner argues that his restitution to Martin should be reduced by the amount paid by the insurer. Fenner reasons that, otherwise, Martin will reap a windfall from double collection of insurance and restitution, or alternatively, Fenner could be subjected to double payment if the insurer pursues these same damages against him in a civil action. Neither of these concerns warrant the reduction of Fenner’s restitution to Martin. First, civil suit by Martin or his insurer could be defended on the grounds that he had already paid an amount in compensation for Martin’s pecuniary loss. See § 46-18-244(2), MCA; M. R. Civ. P. 8(c)(2) (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense including, but not limited to: payment....”).
¶10 Second, Fenner is not entitled to benefit from an offset based on the insurance pay-out of his victim. A California court of appeals considered similar facts in People v. Hove, 76 Cal. App. 4th 1266 (Cal. App. 4th Dist. 1999), and concluded that
[T]he fortuity that the victim here was [insured] should not shield defendant from a restitution order which requires him to pay the full amount of the losses caused by his crime. Nor should the payment of medical bills by [insurance] allow defendant to escape responsibility for the losses he caused. [T]he Legislature could rationally conclude that defendant should bear the burden of the medical costs of his victim, rather than society generally.
We therefore find the restitution order proper even though the victim had no direct economic losses, and even though the victim could conceivably profit from recovering restitution if defendant complies with the restitution order and if [the victim’s insurance] does not pursue reimbursement.
Hove, 76 Cal. App. 4th at 1272-73.
¶11 Although not in the insurance or restitution context, we upheld similar reasoning in Vortex Fishing Sys. v. Foss, 2001 MT 312, 308 Mont. 8, 38 P.3d 836. That case concerned an employer’s violation of the Montana Human Rights Act (MHRA) by illegally discharging an employee. When the employee received both unemployment compensation from the State Insurance Fund and an award of back pay against the employer, the employer argued that the award against him should be offset by the amount of unemployment compensation. We rejected that proposition, reasoning that,
[Bjetween the employer, whose actions caused the discharge, and the employee, who most likely suffered other noncompensable losses, the burden should be placed on the employer. We are confident that the Legislature did not intend by unemployment insurance to insure employers against an award of back pay in the event that an employer illegally discharges an employee in violation of the MHRA.
Vortex, ¶ 28.
¶12 In both Hove and Vortex, the party causing damages could not benefit from an offset based on the insurance of the injured party. The same reasoning prevails in the present case. The fact that Martin had insured himself for medical expenses was due to good fortune and foresight; it should not benefit his attacker rather than himself or his insurance company. The restitution statutes contain no provision requiring an offset in the defendant’s favor, or indicating that a victim should receive less from the defendant. Quite the contrary, our restitution statutes reflect an intent to “require an offender to make full restitution to any victim who has sustained pecuniary loss.” Section 46-18-241(1), MCA (emphasis added). As in Vortex and Hove, we will not presume that the Legislature intended our restitution statutes to create an offset that benefits the wrongdoer first and leaves the victims to await full compensation. Finally, the issue of subrogation under § 27-1-308, MCA, is between Martin and his insurer, and has no bearing on the amount of restitution that Fenner must pay. While the restitution statutes include an insurer as a victim to the extent that it has paid reimbursement for the loss, § 46-18-243(2)(a)(iv), MCA, there is no provision requiring deduction of any such reimbursement from the amount the offender must be ordered to pay. Martin and his insurer are entitled to any damages that could be pursued against Fenner in a civil action, regardless of any subrogation issues between them.
¶ 13 Finally, Fenner argues that the District Court’s determination of the restitution amount was inadequate because the court did not seek an affidavit from the insurer on the damages that Martin sustained, and the portion that it had paid. A District Court’s determination of the amount of pecuniary loss must be based on substantial credible evidence. State v. Hilgers, 1999 MT 284, ¶ 12, 297 Mont. 23, 989 P.2d 866. We have upheld awards of restitution where the only evidence in the record was the victim’s affidavit or testimony regarding the amount of pecuniary loss. See State v. Kuykendall, 2006 MT 110, 332 Mont. 180, 136 P.3d 983; State v. Charley Johnson, 2011 MT 286, 362 Mont. 473, 265 P.3d 638. The PSI in the present case contained Martin’s affidavit on the pecuniary losses he had suffered. Fenner raised no argument or evidence to dispute that amount, but only asserted a smaller number in hopes of reducing the restitution sum. Thus, the District Court’s decision was based on substantial and unrefuted evidence of the pecuniary loss suffered by Martin, and it had no reason to inquire further as to the correct amount of restitution required.
CONCLUSION
¶14 The District Court correctly applied the law when it determined that Fenner is not entitled to an offset in his restitution based on Martin’s insurance compensation. Further, the restitution portion of Fenner’s sentence was based on substantial credible evidence, and the District Court exceeded neither its statutory authority nor its discretion in imposing it. Affirmed.
CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and BAKER concur.
|
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OPINION AND ORDER
¶1 This matter comes before the Court on a formal complaint filed by the Judicial Standards Commission against Montana District Court Judge G. Todd Baugh. Judge Baugh has waived formal proceedings before the Commission, admitted that he violated Montana’s Code of Judicial Conduct, and consented to judicial discipline by this Court. The Commission has filed with the Court its recommendation that the Court accept Judge Baugh’s acknowledgement of violation, waiver of formal proceedings, and consent to discipline in the form of public reprimand or censure. The Commission further recommends that this Court publicly censure Judge Baugh for the conduct set forth in the formal complaint filed against him.
BACKGROUND
¶2 This judicial disciplinary matter arises from Judge Baugh’s August 2013 sentencing of Stacey Rambold for the crime of sexual intercourse without consent. Unless otherwise noted below, the following facts are taken from the formal disciplinary complaint filed against Judge Baugh.
¶3 In October of2008, the State of Montana charged Rambold, a 47-year-old teacher at Billings Senior High School, with sexual intercourse without consent with a 14-year-old high school freshman. Tragically, the victim committed suicide in early 2010 — before the legal proceedings against Rambold had been completed. Later that year, the State agreed to defer prosecution of Rambold in exchange for his admission to having committed one count of sexual intercourse without consent, and his agreement to enter sex offender treatment. Under the agreement, if Rambold violated the conditions of his sex offender treatment, his prosecution could be reinstated. Judge Baugh, a district judge of the Montana Thirteenth Judicial District Court, Yellowstone County, approved the deferred prosecution agreement.
¶4 Rambold was terminated fromhis sex offender treatment program for failure to properly participate in the program, for having unauthorized contact with minor children (relatives), and for engaging in sexual relationships with adult women and failing to disclose those relationships to his treatment team and group. Upon learning of these violations, the State reinstated Rambold’s prosecution.
¶5 On April 15, 2013, the State and Rambold entered into a plea agreement under which Rambold agreed to plead guilty to one count of sexual intercourse without consent. The State sought a sentence of 20 years in prison with 10 years suspended. Rambold, through counsel, asked that all but 30 days of his sentence be suspended.
¶6 On August 26, 2013, Rambold appeared before Judge Baugh for sentencing. Before imposing sentence, Judge Baugh spoke from the bench about his rationale for the sentence he was about to impose. Among other things, Judge Baugh stated Rambold’s victim was “a troubled youth, but a youth that was probably as much in control of the situation as [Rambold], one that was seemingly, though troubled, older than her chronological age.” Judge Baugh then sentenced Rambold to 15 years in the Montana State Prison with all but 31 days suspended and with credit for one day served. Judge Baugh later explained to members of the press that “[i]t was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”
¶7 Judge Baugh’s sentence and rationale, particularly his remarks that the 14-year-old victim was “older than her chronological age” and “as much in control of the situation” as her 47-year-old teacher, sparked immediate public outcry. The Judicial Standards Commission began receiving hundreds of complaints against Judge Baugh and, in total, eight verified complaints were filed with the Commission. In addition, shortly after sentencing, Judge Baugh sought to modify Rambold’s sentence, apparently having concluded that, under § 46-18-205, MCA, the mandatory minimum sentence for Rambold’s crime was two years in prison. We blocked Judge Baugh’s attempt to resentence Rambold, on grounds that he lacked authority to revise a sentence he had already issued. He nevertheless held a hearing, at which he made additional public remarks on the case and his actions in it.
¶8 The State appealed the criminal case against Rambold. We recently vacated his sentence and remanded for resentencing by a new judge. See State v. Rambold, 2014 MT 116, 375 Mont. 30, 325 P.3d 686.
DISCUSSION
¶9 Rule 1.2 of the Code of Judicial Conduct requires judges to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and avoids impropriety or the appearance of impropriety. Judge Baugh has admitted that he violated that rule.
¶10 The comments to Rule 1.2 state, in relevant part, that public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
¶11 Judge Baugh’s comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse. His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control. In addition, Judge Baugh’s later attempt to retract his sentence and rationale was inconsistent with Montana law. Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions. Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct. He has caused Montana citizens, as well as others, to question the fairness of our justice system and whether prejudice or bias affected the outcome of the Rambold case. There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them.
¶12 Article VII, section 11(3) of the Montana Constitution and § 3-1-1107, MCA, allow this Court, upon recommendation of the Judicial Standards Commission, to impose discipline upon any Montana judge for violation of the Code of Judicial Conduct. We adopt the recommendation of the Judicial Standards Commission that we accept Judge Baugh’s admission that his actions violated the Code of Judicial Conduct and his consent to submit himself to this Court for public censure.
¶13 In addition, we conclude that Judge Baugh’s actions warrant his suspension without pay for 31 days. Judge Baugh’s current term in office expires December 31, 2014. He has announced that he will not seek reelection to another term. In light of those facts and in order to minimize the impact of his suspension on the parties whose cases are pending before him and on the other judges in the Thirteenth Judicial District, we conclude the suspension should commence on December 1, 2014.
¶14 Because Judge Baugh has not consented to a suspension, and because the Commission has not recommended suspension, we will allow Judge Baugh 15 days from the date of this Opinion and Order in which to withdraw his consent to discipline.
¶15 IT IS ORDERED that Judge Baugh is granted until June 19, 2014, in which to withdraw his consent to judicial discipline, in writing filed with the Clerk of this Court. If Judge Baugh withdraws his consent to judicial discipline, the Court will return this matter to the Judicial Standards Commission for formal proceedings.
¶16 IT IS FURTHER ORDERED that, if Judge Baugh does not withdraw his consent to discipline, he shall appear before this Court in our courtroom in Helena, Montana, at 9:30 a.m. on July 1,2014, for the delivery of a public censure by this Court.
¶17 IT IS FURTHER ORDERED that, if Judge Baugh does not withdraw his consent to discipline, he will be suspended from the bench without pay for a period of 31 days beginning on December 1, 2014.
DATED this 4th day of June, 2014.
/s/mike McGrath
We Concur
/S/ MICHAEL E WHEAT
/S/BETH BAKER
/S/ PATRICIA COTTER
/S/JIM RICE
See e.g. Matt Pearce, Hundreds Rally Against Montana Judge in Rape-Suicide Case, L.A. Times, Aug. 29, 2013, available at http://articles.latimes.coin/2013/aug/ natton/la-na-im-montana-rally-20130829.
See Greg Tuttle, Baugh addresses media at unusual hearing in Rambold rape case, billingsgazette.com, Sept. 6,2013, available at http://billingsgazette.com /news/local/crimp.-and-courts/baugh-addresses-media-at-unusual-hearmg-in-ramboldrane-caBe/article 719fe5f8-78da-5878-bc89-148dcf0cf42a.html.
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] |
MR. COMMISSIONER BENNETT
prepared the opinion for the court.
In this case an attempt was made to submit to the district court for Lewis and Clark County, sitting in probate, on an agreed statement of facts under a stipulation pursuant to the provisions of section 9872, Revised Codes of 1921, for construction, the will of Archibald E. Spriggs, deceased, whose estate was then and is now in the process of probate before that court. By the terms of the stipulation the court was asked to enter a judgment under the provisions of section 10324 et seq., which sections relate to the proceedings to determine heirship. No petition as contemplated by section 10324, supra, was filed, nor was any notice given as provided by that section. The parties to the stipulation were the widow and mother and father of decedent. From the judgment which was entered, the widow, Josephine Spriggs, appealed.
By the appeal this court is asked to construe the will so as to reach a conclusion contrary to that of the trial court. It seems to us that sufficient facts were not presented to the trial court to enable it to determine the testator’s intention; we do not, however, deem it necessary to discuss the question, for tñe reason that, as we view the situation, the trial court had no jurisdiction to determine the question because of the manner of its presentation.
While there is a tendency to enlarge the jurisdiction of the district court on its probate side we are of the opinion that this case is not such a one as will permit of our disregarding the plain rules which have been heretofore laid down by this court. We feel that there should be a very liberal construction of the doctrine of implied authority where the proceedings are properly instituted, but that those implied powers cannot be exercised until they have been properly invoked.
The rule has been definitely established that a district court, sitting as a court of probate, has only the powers which are expressly granted by statute or are necessarily implied from those expressly granted. (See In re Stinger’s Estate, 61 Mont. 173, 201 Pac. 693, and cases there cited.)
In State ex rel. Kelly v. District Court, 25 Mont. 33, 63 Pac. 717, the court said: “The district court’s power when sitting in probate matters is derived from the statute, and it cannot go beyond the provisions of the statute.”
In speaking of the general jurisdiction of a district court this court in Crawford v. Pierse, 56 Mont. 371, 185 Pac. 315, said: “Though * * * it has jurisdiction, in a general sense, over all classes of cases, it can acquire jurisdiction of a particular civil case only by the filing of a written complaint. # # # >>
This rule would be subject, of course, to the provisions of section 9872, Revised Codes of 1921. There it is provided: “Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. * * * ”
It has been decided in California that proceedings to de termine heirship, “while partaking in form of the nature thereof, is not a civil action.” (11 Cal. Jur. 234.) It is evident that section 9872, supra, does not grant any power to a court exercising its probate jurisdiction. It is expressly pertinent to the civil powers of the court. Under the doctrine “Expressio uwius est exclusio alterius” it cannot be invoked to give the court jurisdiction to determine a controversy submitted to it sitting in probate.
The provisions of section 10324, Revised Codes of 1921, pro- vide the method by which the court may acquire jurisdiction on the probate of the estate to make a decree in rem as to the ownership of the property which will be distributed by it. The same doctrine, “Expressio unius est exclusio alterius, ” applies here, both as to the jurisdiction and the method of acquiring it.
The provisions of section 10365, do not give the authority to commence a proceeding in probate in the manner adopted in this instance for that statute expressly makes the provisions of sections 9008 to 9832 of the Code applicable, and therefore must be held to exclude the practice contemplated by section 9872.
As has been stated, no attempt was made to comply with the provisions of section 10324, supra. Under the rule of the case of Crawford v. Pierse, supra, the judgment entered was in our opinion a nullity, and cannot be made the basis of an appeal to this court.
We recommend that the cause be remanded to the district court, with directions to set aside the purported judgment, and to dismiss the proceedings.
Per Curiam :
For the reasons given in the foregoing opinion, the cause is remanded to the district court, with directions to set aside the purported judgment and to dismiss the proceedings.
Remanded, with- directions to dismiss.
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HONORABLE A. J. HORSKY, District Judge,
sitting in place of MR. CHIEF JUSTICE' CALLAWAY, disqualified, delivered the opinion of the court.
Since the trial of this action in the district court, the plaintiff, J. B. Jeffers, has died, and Susie L. Jeffers, his wife, as executrix of the last will and testament of J. B. Jeffers, de ceased, has been substituted as party plaintiff in his stead. Appeal from a judgment following a directed verdict in favor of the defendants. This is an action for damages to plaintiff’s property and for equitable relief by way of injunction to permanently restrain the defendants and their servants, etc., from maintaining and operating a certain dam known as the -Hebgen dam in the manner set forth in the complaint.
In his second amended complaint, plaintiff alleges that he was the owner of certain lands in the Madison Yalley, together with buildings thereon, which he had occupied for several years as his home; that the lands were valuable for raising agricultural crops and livestock and were so used by the plaintiff during his occupancy thereof; that there is situated upon the Madison River, in Gallatin county, Montana, what is known as the Hebgen dam, constructed across and in said Madison River for the purpose of damming up and storing large quantities of water; that the defendant, Montana Power Company, which for convenience will hereinafter be designated as the Power Company, is the owner of power dams situated on the Madison and Missouri Rivers, together with certain hydroelectric generating plants, which it operates by means of the power furnished by the water stored in the dams; that a certain corporation known as the Montana Reservoir & Irrigation Company, hereinafter called the Reservoir Company, was a subsidiary corporation of the Power Company and that the record title to said Hebgen dam and reservoir is in the name of the Reservoir Company. The complaint then gives the total capitalization of the Reservoir Company and alleges that the Power Company owns all of the capital stock of the Reservoir Company with the exception of five shares, which stand in the name of its five directors, each of whom has one share for the purpose of qualifying him as a director of the Reservoir Company; that at all times the Power Company has dominated, controlled and directed the policy, operation and management of the Hebgen dam; and that at all times the defendant Frank M. Kerr has been vice-president and general manager of the Power Company and likewise general manager of the Reservoir Company. It is further alleged that the Heb-gen dam and reservoir were constructed, maintained and used by the Power Company, through its subsidiary, the Reservoir Company, for storing water for generating power and releasing the water when the Power Company desires to manufacture power in excess of what can be furnished by the natural flow of the Madison and Missouri Rivers; that the defendant Kerr in his capacity as general manager of both companies has charge and control over the operation and method of operation of the Hebgen dam and the manipulation of the waters of the Madison River flowing through and out of the Hebgen dam; that the defendant Dawson was employed by the Power Company as superintendent and managing agent of the company at the Hebgen dam under the supervisory direction and control of Kerr; that Dawson had immediate physical control of the manipulation of the flow of the river passing through the dam; and that the defendants were acting in concert and engaged in carrying out the plan and operation of the dam devised by the defendant company.
It is then alleged that the lands of the plaintiff are situated upon a low bottom bordering upon the east bank of the Madison River downstream from said Hebgen dam and so lying that when the waters of the river overflow the east bank they naturally flow upon plaintiff’s land; that “during the months of January, February and March, 1917, the natural flow of said water in said Madison River was at, or slightly below, normal; that during said months there were periods of freezing weather, during which periods there was a rapid and constant formation of ice in said Madison River; that during said months water was released from said Hebgen dam by defendants, as is hereinafter mentioned, for power purposes only, and the same was used by the defendant, the Montana Power Company, in the operation of its power plants; and the defendant Power Company directed the release thereof that it might use the said waters for the purpose of generating hydroeiectrieal power, and the waters of the said Hehgen dam were released only upon the orders and at the direction of the defendant, the Montana Power Company, through its general manager, - the defendant Kerr, and not otherwise; that the said defendant Kerr, and by his orders the defendant Dawson, operated said Hebgen dam and said power dams during said months 'and particularly during said periods of freezing weather, in such manner as to discharge at various times, in said river, lai’ge quantities of water, thereby greatly and suddenly increasing the flow of said river over the natural flow thereof, and causing unnatural fluctuations in the flow' of said river, and as a consequence thereof shore ice formed in said river high upon the banks thereof, and the same became broken up and, together with slush ice which was then flowing in said river, were caused to form ‘jams’ or ice dams in said river; that the storage of water by the Hebgen dam, as aforesaid, was so affected, regulated and controlled by said defendants Kerr and Dawson that sometimes, and within the time hereinbefore specified, the flowage of the water in said river below said dam would be greatly increased above the normal flow of said river, as aforesaid, and through such a practice the ice bodies formed during the winter months in freezing weather, as aforesaid, were largely in excess of such as would have been formed if the said river had during such time been permitted to flow at its normal natural state, and at such times when great quantities of water were released from said dam into said river, as aforesaid, ice bodies were formed in many places along the channel thereof and near the lands of plaintiff hereinabove described, and when the said flow of said river was increased, as aforesaid, the channel of said river at such places was rendered incapable of carrying water and ice flowing down said river, and jams and ice dams were formed in said river as aforesaid; that, by reason of the foregoing, the waters flowing in said river were forced out of the natural channel thereof, and under the soil, along and away from the banks thereof and overflowed the banks of said river and said waters flowed through, over and upon the lands of plaintiff hereinabove described, greatly damaging the same and injuring and destroying the plaintiff’s personal property thereupon.” The complaint then describes in detail the damages sustained by the plaintiff.
It is further alleged that this condition was proximately caused by the operation of the dam by the defendants in the manner alleged and would not have occurred but for such operation of the dam; that if the waters of the Madison River are permitted to flow in the channel thereof in their natural course and way, and without interference upon the part of the defendants, the plaintiff in the future will not be subjected to such injury and damage and will be able to enjoy his lands and the possession and use thereof without disturbance or molestation or injury, as he did prior to the construction of the dam; that if defendants are permitted to continue their course of operation it will result in plaintiff’s land being flooded and damaged from time to time; that the dam is maintained by the Power Company solely for storage purposes and during the winter-time for the purpose of generating power and for no other purpose, and that if it is used at all for such purposes during the winter-time it must be for power purposes, and the release of large quantities of water during and in freezing weather when large quantities of power are needed in the company’s business, so that if defendants are permitted to operate the dam in the winter • months the plaintiff’s property will continue to be damaged, and that the operation of the dam when so operated is a nuisance; that adequate relief in damages cannot be obtained by the plaintiff, and that unless defendants are restrained a multiplicity of suits for damages by plaintiff will become necessary, and that plaintiff will be deprived of his property without due process of law and without compensation first being paid, as required by the national and state Constitutions.
In his prayer the plaintiff asks that an order to show cause be issued directing the defendants to appear and show cause why the defendants and its and their servants, etc., should not be restrained and enjoined during the pendency of the suit from maintaining and operating said dam as above set forth, and enjoining and restraining the defendants from interfering with the natural flow of the Madison Biver; that upon final hearing of the cause said Hebgen dam be declared a nuisance and said injunction be made permanent, and that plaintiff have judgment against defendants for the sum of $18,750 damages and for his costs.
The defendants demurred to the second amended complaint on the ground that it failed to state a cause of action and that there is a defect in parties disclosed in said complaint, in that it appears therefrom that the Beservoir Company is a necessary and also a proper party to be joined as the defendant in said suit. This demurrer was overruled, and the defendants filed a joint answer, in which they admit the incorporation of the Beservoir Company and allege that it had title to and is now the owner of the Hebgen dam and reservoir; that the total capitalization of the reservoir Company was and is 50,000 shares of the par value of $100 each, of which 14,259 shares are issued and outstanding; that the company has five directors, and that the Power Company owns 14,250 shares of the stock. It is admitted that the defendant Kerr is vice-president of the Power Company and its general manager in Montana, and also the general manager of the Beservoir Company. The defendants deny all of the allegations of damage alleged to have been sustained by the plaintiff. It is admitted that during the months of January, February and March, 1917, the natural flow of the Madison Biver was at or slightly below normal, and that during those times there were periods of freezing weather and constant formation of ice in the river. It is further admitted that during these months certain quantities of water which had been stored in the dam were at certain periods released and permitted to flow down the river; that shore ice formed in the river and at times was broken up and, together with slush ice, formed at certain periods and places jams or ice dams in the river. Defendants deny that the jams or ice dams were caused by releasing the water from the dam and deny that the flooding or gorging or damming in or from the river or upon any of the plaintiff’s lands was caused by the release of any of the waters from the Hebgen dam or by the defendants- It may be stated generally that with the exception of the admissions above mentioned the defendants’ answer is a general denial of plaintiff’s complaint.
For a further and separate defense defendants allege the incorporation of the Power Company under the laws of New Jersey and aver that it was and is engaged in operating power dams and generating plants in Montana for the purpose of generating electrical power, and that at all times since prior to the year 1916 has been conducting a public utility business in the state of Montana, and as such has been subject to the jurisdiction of the Railroad and Public Service Commission of the state of Montana; that the Reservoir Company is a Montana corporation engaged in the business of generating power and storing water for irrigation, for sale to power generating plants, and other useful purposes, and is now, and at all times mentioned in the answer has been, conducting a public utility business in this state, and as such has been and now is subject to the jurisdiction of the Railroad and Public Service Commission of the state of Montana; that during the year 1906 all of the waters of the Madison River were appropriated under the laws of the state of Montana at the point where the Heb-gen dam is situated, for the purpose of irrigation and generating hydroelectrical current and power, and for other useful purposes; that the storage of water was begun in 1912 and that certain of the waters so appropriated and stored have been sold to the Power Company and others, and have at various times, when needed, been released from Hebgen dam by the Reservoir Company and permitted to flow down the Madison and Missouri Rivers and used at points below for irrigating and the generation of power and other useful purposes; that the amount of water so released and added to the amount of water flowing in the river has never at any time been equal to the quantities which naturally flow or would flow in the river naturally in the times of high water each year, and that the amount of water released, together with that flowing in the river, has not been sufficient to overflow the natural banks of the river, and that during the entire period from the first day of October, 1916, to and including the month of March, 1917, the weather along the Madison River was unpreeedently severe, and during that period there were continuous periods of freezing, and that the flooding or injury to plaintiff’s lands was caused by such extraordinary, unexpected and unprecedented conditions of weather or the act of God.
For another and further and partial defense to the cause or causes of action attempted to be set up in plaintiff’s second amended complaint, and as a defense to so much of said second amended complaint as seeks injunctive relief, defendants allege the incorporation of the Power Company and the Reservoir Company; that both are public utilities subject to the jurisdiction of the Public Service Commission of the state of Montana; that the Power Company is, and at all times since the latter part of 1912 has been, the owner of and maintaining large hydroelectric plants, consisting of dams, flumes, plants and generating plants along the Madison and Missouri Rivers; that the Great Falls Power Company was also a Montana corporation, engaged in maintaining and operating hydroelectric plants and subject to the jurisdiction of the Public Service Commission, and has a number of plants; that the power and current produced from all of the plants owned and operated by the Power Company and the Great Falls Company supply large numbers of cities and towns in Montana, which are set out in the complaint, and also many large industries, which are also mentioned; that the Hebgen dam and reservoir were constructed during the years 1909 and 1915, inclusive, at a cost of more than $1,000,000 and the capacity of the reservoir is sufficient to add 1,000 second-feet to the natural flow of the Madison River for 154 days, or the equivalent thereof; that the dam and reservoir since their construction have been used for the purpose of storing the waters of Madison River and releasing the same during periods of low water in the Madison and Missouri Rivers, for the purpose of using the same for irrigation and selling the right to use the same to the Power Company to increase the flow of the river for generating electrical power during periods of low water at each of the plants of the Power Company; and that during high water the waters of the Madison and Missouri are sufficient to operate the plants, but during low water they are not, and that the waters released from the Hebgen dam have added to the capacity of the plants approximately 40,000 electrical horse-power.
It is alleged upon information and belief that there is no site on the river, or adjacent or close enough thereto to be practical, where a further plant could be constructed and operated at a cost which would not be prohibitive at the rates fixed or obtainable for electrical current and energy, in communities and districts above described, to take the place of the power obtained from the waters stored in the Hebgen dam; that the communities and industries specified in the complaint have no other source of obtaining power or energy to supplant that furnished by the defendant company and the Great Falls Power Company, and that the communities and their inhabitants and industries are dependent upon said power for their uses; that the Hebgen dam and reservoir are assessed for the purpose of taxation under the laws of this state in excess of $1,000,000, and the plants of the Power Company and the Great Falls Power Company, dependent directly upon the use of the waters stored in the Hebgen reservoir, are assessed at approximately $3,500,000, and the taxes annually paid upon these dams and the portion of the hydroelectric plant dependent upon such stored waters to the county and state governments of Montana are the sum of $43,200; that if the maintenance and use of the dam be enjoined and restrained the value of the same would be destroyed and the state and county governments of Montana will be deprived of taxes approximating the snm of $55,000, and a depreciation in the value of the plants of the Power Company and the Great Falls Power Company as a result thereof would approximate the - sum of $5,000,000, the companies would be deprived of more than 40,000 electrical horse-power, the communities and the industries described in the answer would be deprived of elec_trical current and energy, and the damage and injury which would be caused to the power companies and the communities and industries would be immeasurably greater than any possible damage which would be caused to the plaintiff by the continuance of the use of the waters stored in the Iiebgen dam.
For a third separate defense it is alleged that there is a defect of parties defendant in that the Reservoir Company is a necessary party defendant. In the remaining sepai’ate defenses denominated “fourth,” “fifth,” “sixth,” “seventh” and “eighth,” defendants allege that plaintiff’s cause of action is barfed by certain statutes of limitation.
To this answer the plaintiff interposed a reply which in effect denies all of the affirmative allegations of defendants’ answer.
The cause was tried to the court sitting with a jury.
The disposition to be made of this case renders unnecessary a detailed examination of the evidence. So much of the testimony as is necessary or desirable to call attention to is as follows:
Some time in May, 1906, one J. L. Templeman appropriated and located 240,000 inches of the flood, waste, surplus and unappropriated waters of the Madison River in Gallatin county, Montana. The purposes of the appropriation of the water as disclosed by the notice of appropriation are mainly for collecting, preserving, impounding and storing the same in the reservoir, which is the site of the present Hebgen reservoir, and for the transportation of certain waters to and upon lands situated in Madison, Gallatin, Broadwater, Lewis and Clark and other counties in Montana; and also for the generation of electric power and other useful purposes; the notice further specified that the waters will be conveyed to the places of intended use “•by means of the natural channels of the Madison, Jefferson and Missouri Rivers.”
These water rights were acquired by the Reservoir Company, which was organized in August, 1906. The construction of the Hebgen reservoir began in September, 1907, and was completed in 1915 or 1916. The defendant, the' Montana Power Company, was organized on December 12, 1912, more than six years after the organization of the Reservoir Company.
After the completion of the Hebgen reservoir, the Reservoir Company engaged in the irrigation of lands in the Helena and Prickly Pear Valleys, and still continues to irrigate such lands to the extent of about 8,500 acres. In 1916 the Reservoir Company also entered into a contract with the Montana Power Company to deliver to the company for use at certain of its hydroelectric power plants located on the Madison and Missouri Rivers, the flood waters so stored in the Hebgen reservoir, the contract price being $140,000 a year for the first two years,, and thereafter $108,000 per year. The delivery of water to the Power Company began some time in 1916. The Power Company was never given any proprietary right in the water; it simply had the right to use it through its wheels under the agreement between the companies, that is to say, the Reservoir Company never sold the water to the Power Company, only the right to use it, as it passes through its plants and undertook to deliver this water to the Power Company at its plants, so that the Power Company had no control over the waters of the Hebgen reservoir until they reached the reservoir of the Montana Power Company.
The defendant Frank M. Kerr has been vice-president and general manager of the Power Company since September, 1914, and president and general manager of the Reservoir Company since May, 1914. The defendant Joseph C. L. Dawson was the custodian or man in charge of the Hebgen reservoir for the Reservoir Company during the time complained of.
The operation of the reservoir by the Reservoir Company, consists of storing water of the Madison River in the spring and summer, and the water is released at the request of its customers for the Prickly Pear irrigation districts, near Helena, and the Power Company. The irrigation district requires water during May, June, July, August, September and occasionally October, of each year, and during the months of October, November, December, January, February, March and April the water stored in the Hebgen dam is delivered by the Reservoir Company to the Power Company, at the request of the latter, from time to time for the purpose of generating electric power in the Madison and Missouri Rivers.
The water is released from the Hebgen Reservoir by means of stop logs, eight feet long and twelve inches square, which are removed and replaced by the use of an electric crane. It wras admitted by counsel for the respective parties that when four logs, one from each of the four compartments in the dam through which water is released, are taken out at the top of the headgate, it releases twelve inches of water in height. Whenever the natural flow of the water in the river was insufficient to generate the power required at the various plants of the Power Company located along the Madison and Missouri Rivers, this fact would be communicated by employees of the Power Company to the custodian or man in charge of the Hebgen reservoir, and stop logs would be removed and the natural flow of the water thereby increased in such an amount as was necessary to supply the demands of the Power Company. If more water was being released than was necessary, the stop logs necessary to cut down the supply were replaced, which decreased the amount of the water flowing in the river below the dam.
Several witnesses who own and occupy land below the site of the reservoir, and bordering on or in the vicinity of the Madison River, testified that during the months of January, February and March of 1917 the water in the Madison River would rise and recede an appreciable amount every five or six days. These fluctuations in the waters of the river were caused by the taking out or replacement of stop logs in the Hebgen dam. It was also testified that the fluctuations could have been caused by the slowing up of the river due to the formation of ice in the stream.
At the times of high water in the Madison and Missouri Bivers, there is sufficient water to operate all of the hydroelectric plants of the defendant company to their full capacity, but there is not sufficient water in the winter-time without the supply from the Hebgen reservoir, and it was due to this fact that during the months of January, February and March of 1917 water was being released from the Hebgen reservoir upon requisitions from the Power Company.
As far back as the witnesses could remember ice-gorges have formed in the Madison Biver, more or less every winter, and during winters having long periods of cold weather, as in the winter of 1917, the ice-gorges extended over large areas of the Madison Yalley and likewise over portions of the land of the plaintiff, the extent of the ice-gorge being measured by the temperature and by the duration of cold periods. The testimony is to the effect that the ice-forming factors on the Madison Biver in the winter of 1917 were more extensive than in any winter for a period of about twenty-one years.
During the months in question the rise and fall of the water in the river varied according to the testimony of the several witnesses from a few inches to a foot and a half, but it is undisputed that during that period the amount of water released from the Hebgen reservoir, when added to the natural flow in the river, would not at any time exceed safe carrying capacity of the channel during the summer floods; in other words, the water has always been controlled within the natural limits of the stream and within the limits of its ordinary high and low water marks.
The plaintiff’s lands are located several miles below the site of the Hebgen dam, and a portion thereof that borders on the river, spoken of in the testimony as lowlands, has been flooded nearly every winter as far back as witnesses could remember, damaging Ms fences, etc. TMs was occasioned by ice-gorges wMeh formed in the river during freezing weather, causing the waters to be diverted from the natural channel of the river. Starting at a point less than a quarter of a mile from the river bank on the Jeffers land, the ground is a few feet higher than the lowlands or meadow lands of this ranch, and upon this higher land is located the Jeffers house and other buildings, and on this land there are cultivated areas where he raises alfalfa and grain.
In January, February and March, 1917, the river gorged in the vicinity of the Jeffers place, and the water was diverted from the channel to and upon and over the Jeffers lands, covering, according to the testimony of the plaintiff, a larger area of his land than had ever been flooded theretofore, and damaging his lands, buildings, etc. However, according to plaintiff’s own testimony, a few times prior to 1917 some of this higher land upon which he raised grain was flooded with ice and water occasioned by the gorging of the river during freezing weather. The principal difference between the flooding that occurred in January, February and March, 1917, and prior years, was that it covered a larger area of his ground. According to plaintiff’s testimony, all of his lands, save and except about a half an acre, were submerged with ice and water.
Some of the witnesses testified that the turning of the water into the channel from the Hebgen reservoir caused shore ice, formed along the banks of the river, to be dislodged and carried down the stream with slush ice flowing therein, increasing the tendency of the river to gorge, while, on the other hand, many of plaintiff’s witnesses testified that less ice flowed in the river during the winter months since the construction of the Hebgen dam than had theretofore.
There seems to be no dispute in the testimony that large quantities of water were released from the Hebgen reservoir into the Madison Kiver during the period of time complained of. The testimony also conclusively shows that there was a long protracted spell of cold weather.
At the close ■ of the testimony the defendants moved separately for a directed verdict, and among other grounds in the several motions specify that the evidence fails to establish any negligence or negligent act on the part of the defendants, or either of them, upon which a verdict or a judgment could be predicated; that the evidence “uncontradictedly shows that the construction and operation of said Iiebgen dam and the storing of water therein, and the releasing of said water is, and has been, at all times, a lawful business, and the evidence fails to show that said business or any of the acts done in connection therewith has been negligently done or caused to be done; that the evidence uncontradictedly shows that the maintenance and construction of said Hebgen dam and reservoir, and the operation thereof, and the releasing of all waters which have been released therefrom, and the use of the channel of the Madison River as a conduit, was and is a lawful business, and that the owner and operator 'of said dam and all connected therewith, have conducted the same in a careful manner without negligence; and that the amount of water released from said Hebgen dam has never at any time been sufficient, together with the water naturally flowing in said river, to overflow the natural banks of said river at any point therein, and that the banks and channel of said river have at all times been sufficient to carry the water so released therefrom, together with the waters naturally flowing therein.” The lower court sustained the motions and ordered the jury to find a verdict in favor of the defendants, to which the plaintiff excepted. Judgment was thereupon entered dismissing the action on the merits and awarding the defendants their costs. The plaintiff thereupon appealed from the judgment made and entered by the district court in favor of the defendants and against the plaintiff.
Numerous specifications of error are set forth in plaintiff’s brief, hut in our opinion only those relating to the grant ing of the separate motions of the defendants for directed verdict need be considered.
In the argument to follow we will assume, but do not decide, that the Montana Power Company was responsible for the operation of the properties of the reservoir company.
In determining the question of the correctness of the ruling of the district court in granting the separate motions of the defendants for directed verdicts, we are at the outset confronted with the question: Is it necessary for the plaintiff under the facts disclosed in this case to allege and prove negligence upon the part of the defendants, or either of them, as the foundation of legal liability?
The plaintiff very earnestly contends that the defendants, under the facts disclosed in this case, are guilty of creating and maintaining a nuisance as defined by section 8642, Revised Codes of 1921, and that as, under this definition of a nuisance, negligence is not mentioned, he is relieved of the necessity of either alleging or proving negligence on the part of the defendants. This was the theory upon which the plaintiff tried his ease.
The defendants with equal earnestness argue that, under the facts alleged in the complaint and disclosed by the evidence, the gist of the action is negligence, and until some negligence is shown there cannot be said to be any legal liability.
The section of the statute relied upon by plaintiff reads as follows: “Anything which is injurious to health, or is indecent or offensive to the senses, or am obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Sec. 8642, Rev. Codes 1921.)
Plaintiff contends for a literal construction of this statute, but as the statute is merely declaratory of the common law on the subject (State ex rel. Ford v. Young, 54 Mont. 401, 170 Pac. 947), it must be construed in the light of the history on the subject.
That a nuisance may exist with or without negligence is too clear to require either argument or citations," but when negligence is a necessary element it is fraught with no little difficulty. Each case must be governed by its own facts, and no hard-and-fast rule can be laid down by which to determine when it is necessary to allege and prove negligence in an action for a nuisance.
The general rule is thus stated in 2 Wood on Nuisances, volume two, third edition, page 1276: “There are a class of actions for nuisances in which negligence must be alleged. As, for injuries arising from the undermining of buildings, •by excavations upon adjoining lands; for injuries resulting from the explosion of steam boilers, of gunpowder; although in the latter case it seems that the keeping of large quantities in a populous locality, or near the dwellings of another, or near a highway, is a nuisance per se, rendering the owner thereof liable for all injuries resulting therefrom. So in actions against persons acting under legislative powers, unless the act is in excess of their powers, negligence should be alleged; as for injuries resulting from the flooding of lands, by the erection of an embankment, for the want of a proper culvert under the same, or turning surface water upon the premises of another, or preventing the drainage of lands when, by ditches and sluices, the injury could have been prevented; but except where the act is strictly within the scope of the grant, and the natural or probable consequence thereof, negligence is not an element, and need not be alleged. * * * The rule may be said to be, that, where a lawful act is done by an individual or corporation, there is no responsibility for the consequences, however injurious they may be, unless it was so done as to constitute actionable negligence. But it must be remembered that no act can be said to be lawful that is in violation of that venerable maxim Sic utere two, ut alienum non laedas. Every person is bound to regard the rights of others, and any act that trenches thereon is actionable irrespective of the question of negligence. In the case of corporations, authorized by statute to do certain things, their acts are lawful as long as they act within the scope of the letter and spirit of the authority granted; therefore, in order to predicate a nuisance against them, it must either be alleged and proved that the act done, of which complaint is made, was wholly unauthorized, or that it was negligently done, and in either case, liability for the consequences exists in all grants of authority to do an act which may or may not be productive of injury to others accordingly as it is executed; the law presumes that it shall be done in such a manner as to be productive of the least possible injury, and if not so done, liability exists for the consequences * * * Generally where the thing complained of is in itself, or was originally lawful, but has become a nuisance because of its negligent use or management, negligence should be alleged and proved, or should clearly appear from the allegations in the complaint or declaration; consequently in that class of actions the complaint should set up negligence, and it must be established upon the trial, unless it is of such a character as to amount to negligence per se.” ■
In this connection we also call attention to the following provision of our statutes: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” (Sec. 8645, Rev. Codes 1921.)
In the case at bar we find that the operation of the Hebgen reservoir, the sale of the use of the water stored therein, and the transportation of such waters so stored through the channels of the Madison River for a useful purpose is authorized by statute and is a lawful business. (Secs. 7093, 7096, 7113, Rev. Codes 1921.) There can be no question under the facts in this case that the construction and operation of the Hebgen reservoir were done in accordance with the statutes. The impounding of the waters of the Madison River in the Hebgpn reservoir and the transportation of them through the channels of the Madison River for a lawful purpose, being a lawful ■business, it cannot be said that to do so is a nuisance per se. (29 Cyc. 1159.)
It is fundamental that without a wrong there is no cause of action, and, as stated by this court in the case of Riddell v. Peck-Williams on H. & V. Co., 27 Mont. 44, 69 Pac. 241, “A wrong is the breach of a legal duty.” It was therefore necessary for the plaintiff, in order to maintain his action against the defendants, to show a legal duty owing to him from them, and a breach of that duty. The mere fact that the plaintiff may have suffered damage is not of itself sufficient; there must ■be the violation of a duty recognized by law.
Having determined that the impounding of these waters and the transportation of them through the channels of the Madison River is not a nuisance per se, but a lawful business, it follows that if any of plaintiff’s rights have been invaded by defendants it was due to the manner in which they carried on such business; in other words, that a nuisance was created by the negligent operation of an otherwise lawful business.
The duty owed by one impounding water and using the channels of a stream for a lawful purpose has been settled beyond question in this state and cannot be changed by changing the form or theory on which the action is brought.
That persons impounding waters are not insurers against damage caused thereby, but are held only to the exercise of ordinary care in the construction and operation of their plants is so clearly and forcibly pointed out by Mr. Justice Holloway in the case of Fleming v. Lockwood, 36 Mont. 384, 122 Am. St. Rep. 375, 13 Ann. Cas. 263, 14 L. R. A. (n. s.) 628, 92 Pac. 962, that doubt can no longer exist as to the rule established in this state: “ ‘A person may lawfully collect water by means of a dam, or in ditches, canals, culverts, or pipes, and is not liable in such a case for injuries caused by the escápe of the water, in the absence of negligence on his own part.’ (Gould on Waters, see. 298.) ‘The measure of the care which the ditch owner is bound to use is that which ordinarily prudent men exercise under like circumstances when the risk is their own. And if he fails to exercise this degree of care, he is liable for injuries which the water causes to the adjoining property in consequence of his negligence.’ ”
Likewise, the measure of duty owed to others by one using the channels of a stream in this state for a lawful purpose is set at rest in the case of Hopkins v. Butte etc. Co., 13 Mont. 223, 40 Am. St. Rep. 438, 33 Pac. 817. In that case the defendant company was using a stream known as Deep Creek for floating logs down to its mill at Great Falls. It cut and placed in the stream large quantities of logs, and in the transportation of the logs downstream a log jam or boom formed, causing a large quantity of water to be collected above, so that when the jam gave way the water so collected was suddenly released upon the plaintiff’s lands and by depositing debris thereon caused damage to plaintiff’s crops, fences, etc. The appellant requested the court to instruct the jury to the effect that in order for plaintiff to recover in the action he must show that defendant had been guilty of want of ordinary care and prudence in the conduct of its business upon this stream, and that plaintiff had sustained damage by reason thereof. This the court refused to do, instructing the jury that while defendant was engaged in a legitimate business yet it was bound to conduct its business in such a manner as not to cause injury to the plaintiff.
This court, in commenting upon the ruling of the court on the requested instruction, said: “The gist of this action is negligence, and until some negligence is shown there cannot be said to be any liability. * * * We think the instruction requested by appellant correctly stated the law of the ease, and should have been given. [Citing cases.] The instruction given by the court practically ignored the question of negligence, and told the jury to find for the respondent for whatever damages he had sustained by the acts of the appellant in placing the logs in said stream, whether the appellant was guilty or not of any negligence or want of care in the eon- duct of its business, or whether the damage resulted from causes beyond appellant’s control, and this, too, after instructing the jury that the appellant had a right to place its logs in said stream, and that it was engaged in a legitimate business. Ordinarily, if a person is engaged in a legitimate business, he is only liable to another for such injuries as result from negligence or the want of ordinary care and prudence in the conduct and management thereof.”
In the legal principles applicable it would be impossible to distinguish this ease from the one at bar. In the Hopkins Case the defendant was engaged in a lawful business, namely, using the channels of Deep Creek for the transportation of logs, and this court held that it owed to plaintiff the duty to exercise ordinary care in the conduct and management of its business, and no liability could attach except there be some showing of negligence or want of ordinary care resulting in damage to the plaintiff. In the instant case we find the defendants engaged in a lawful business, namely, using the channels of the Madison River for the transportation of the waters collected in the Hebgen reservoir and such use of the channel of the river authorized by the statutes. (Sec. 7096, Rev. Codes 1921.) In principle we fail to see why the same measure of care and responsibility should not attach in both cases. This being true, the failure of the plaintiff to allege and prove negligence on the part of the defendants is fatal to his action, call it by whatever name you will.
To adopt the theory advanced by the plaintiff, we would be obliged to hold that one impounding waters in this state and using the natural channel of a stream for the transportation of such waters is absolutely an insurer against all damages. This would place such an unreasonable burden on legitimate business as to practically discourage the reclamation of the state’s arid lands and the development of many of our natural resources. Plaintiff contends that his right of action springs from the violation of the venerable maxim, “Sic utere Uto, ut alienmn non laedas,” which has been translated by our code (sec. 8743, Rev. Codes 1921) as follows: “One must so use his own rights as not to infringe upon the rights of another.” Plaintiff, however, overlooks the fact that the rule of law embodied in this maxim of jurisprudence is not ironclad and without limitations. As stated by Mr. Justice Holloway in Fleming v. Lockwood, supra: “This maxim furnishes, in a general sense, the rule by which every member of society possesses and enjoys his property; but it is not an ironclad rule, without limitations. If applied literally in every case it would largely defeat the very purpose of its existence; for in many instances it would deprive individuals of the legitimate use of their property, and, for all practical purposes, destroy it. (Hentz v. Long Island R. R. Co., 13 Barb. 646.) The doctrine of the maxim is not inconsistent with the rule of law that a man may use his own property as he pleases, for all purposes for which it is adaptable, without being answerable for the consequences, if he is not an active agent in designedly causing injury, if he does not create a nuisance, or if he exercises due care and caution to prevent such injury.”
The defendants in impounding these waters in the reservoir and using the channels of the Madison River for the transportation thereof are no doubt subject to the rule embodied in this maxim; but it follows that no action can be maintained against them for the reasonable exercise of their right, although annoyance and injury may be occasioned the plaintiff. They are responsible only for injuries caused by their negligence, or those willfully inflicted. There is no pretense in this case that the injuries to plaintiff were willfully inflicted and no proof of negligence on the part of the defendants.
Some confusion may have existed in this state by reason of the decisions in several early cases, notably, Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. Rep. 622, 50 Pac. 416. In that case defendant and subsequent appropriator of the waters of Buffalo Creek so conducted his placer mining operations above plaintiff’s land that tailings and other debris were carried down that stream and deposited on plaintiff’s land damaging the same. This court held that the question of negligence did not enter into the case and that defendant was liable for any damages caused to plaintiff in so conducting his placer mining operations regardless of the care exercised in attempting to prevent such damage.
But whatever doubt may have existed after the decision of the Fitzpatrick Case as to the duty owed to others by one using and handling waters in this state was definitely set at rest in Fleming v. Lockwood, supra. In the latter case plaintiff sought to recover damages alleged to have been caused to his land by seepage from defendant’s irrigating ditch. Plaintiff asked the court to instruct the jury that if the injury was caused as alleged the verdict should be for plaintiff, irrespective of the question of negligence on the part of the defendant in the construction and operation of the ditch, which request the court refused to grant, and gave instead an instruction to the effect that defendant was only bound to exercise ordinary care in the construction and operation of his ditch, and that if he did so he could not be held responsible. The action of the court in so instructing the jury was sustained in this court. In the course of the opinion, the following observation was made concerning the decision in the Fitzpatrick Case: “Since negligence is the very essence of an action of trespass on the case, and negligence was held not to enter into the Fitzpatrick Case, we must assume that the case was treated as an action of trespass, and of that character of such an action which is maintainable without reference to the question of negligence; in other words, the court must have held that Montgomery’s situation was practically the same that it would have been had he hauled the debris in carts and deposited it upon Fitzpatrick’s land, in which latter event, of course, the degree of care which he exercised would have been of no moment. This, at least, is the theory of most of the cases cited in the opinion in the Fitzpatrick Case; ánd while it is a matter of doubt whether the Fitzpatrick Case was in fact of such character, it was evidently treated as such, for upon no other possible theory can it be sustained. ’ ’
The court then discusses the difference between an action in trespass and an action for trespass on the case, stating that the former implies wantonness, malice or willfulness, while the latter implies only negligence, and then continues: “But, whatever doubt may arise as to the character of the action applicable to the Fitzpatrick Case, there is no doubt or uncertainty whatever as to the class into which the case now under consideration falls. Upon the facts stated, it could only be maintained as an action of trespass on the ease, since there is not any contention that Lockwood intentionally caused the water to seep from his ditch. If, in fact, the seepage occurred as plaintiff contends, it must have been the result of negligence on Lockwood’s part, either in constructing or operating the ditch, since it is not contended that it was the result of an inevitable accident or Was caused by an act of God; and therefore the plaintiff had the burden of proof, in the first instance, to show negligence on the part of the defendant.”
The principle of law announced in the Fleming Case was reaffirmed in the case of Wine v. Northern Pac. Ry. Co., 48 Mont. 200, Ann. Cas. 1915D, 1102, 49 L. R. A. (n. s.) 711, 136 Pac. 387, where plaintiff sought to hold the railway company liable for the flooding of his land by reason of an ice jam alleged to have been caused by the railway company. It was there stated in the opinion by Mr. Chief Justice Brantly: “If it commits a trespass, it is liable in an action for trespass. If during the conduct of its business it creates a nuisance or suffers one to exist upon its own property, it is liable in an action on the case. In the one case no question of diligence or skill can arise; liability will attach if the injury done is the result of the active agency of the defendant. In the other it will be liable if the injury is consequential or is the result of negligence or nonfeasance. [Citing Fleming v. Lockwood, supra.]’’
In fact, plaintiff practically admits in the following language employed in his brief that negligence or want of ordinary care is the gist of the action: “As the evidence in the case shows, everybody knew the habit of the river to gorge, and under the foregoing authorities, when the defendants released quantities of water thereby suddenly increasing the flow of the river greatly above normal, the defendants should have anticipated the damage it was likely to do and because they did not anticipate it and forfend against it they are liable in this action.”
If plaintiff desired to make defendants respond in damages under this rule, it was incumbent upon him to plead and prove that this was the habit of the river; that it was known to the respondents or in the exercise of reasonable care should have been known, that notwithstanding such knowledge the defendants negligently failed to anticipate such gorging, and negligently released the water knowing of the existence of the gorge or in the exercise of reasonable care being bound to anticipate its existence and thereby caused the injury complained of. And in fairness to the defendants they should have been advised by the pleadings and the proof that this was the issue they were required to meet, so that they might thereby have been enabled to properly prepare their defense.
The evidence produced by the plaintiff simply amounts to this: That defendants released, or caused to be released, from their reservoir during the months of January, February and March, 1917, when the temperature was below freezing, large quantities of the water stored therein, causing an unnatural fluctuation in the river every four or five days; this change in the river dislodged shore ice which, together with slush ice flowing therein, caused the river to gorge and flood plaintiff’s ranch, possibly to a greater extent than it had theretofore, but, in its final analysis, producing a condition very similar to that which existed on the river during freezing weather nearly every year before the dam was built, damaging plain tiff’s land and other property to a greater extent than had been suffered by him theretofore.
Further, the injury complained of in this case cannot be traced directly to the construction, operation or maintenance of the Hebgen reservoir. The testimony shows conclusively that no more water was turned into the river, when added to that naturally flowing therein, than could safely be accommodated by the natural channels of the river, and that the flooding of plaintiff’s land was occasioned by an ice-gorge which had formed in the river; the damage therefore was not direct, but consequential. Or, to put it in another way, there is no causal connection between the operation of the reservoir and the using of the channel of the river for the transportation of the water stored therein and the flooding of plaintiff’s land. In order to make out a case, the burden was on the plaintiff to allege and prove some negligence which proximately caused the injury of which complaint is made.
In this connection we desire to quote the following language taken from the opinion of the court in the case of Town of Lawrence v. American etc. Co., 144 Wis. 556, 128 N. W. 440: “Has the defendant by the use of its flush-boards so manipulated the water as to incur any liability to plaintiff? The flush-boards have been used on the dam only when the water was at a low stage, caused either by natural conditions or by the holding back of the water by upper mill owners. At no time has the use of flush-boards caused the river to rive [rise] above ordinary high-water mark; that is, the point up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction or vegetation, or other easily recognized characteristic. The water has always been controlled within the natural limits of the stream and within the limits of its ordinary high and low water marks, and such control has been rendered necessary by the lawful and proper use of the water by upper proprietors of mills, or by natural causes. Such use, within such limits and under such circumstances, is a lawful use. The owner of water-power is entitled the whole year round to the use of the stream and the banks below ordinary high-water mark as nature has created them, subject to a reasonable use thereof by other owners of power and of riparian rights. And he may in a season of low water, by artificial means, restore the stream to a condition of a higher stage of water than then exists, provided he does not raise it above ordinary high-water mark, and provided such restoration is reasonably necessary to the full enjoyment of his water rights, and it creates no essentially different conditions than would exist had there been a natural rise of the stream to the same extent and for the same length of time. A mere riparian right is subject to such reasonable use of the stream, and if any damage results therefrom the owner of the right is without a remedy. (2 Farnham on Waters, 276; Gould on Waters, sec. 218; Timm v. Bear, 29 Wis. 254; Coldwell v. Sanderson, 69 Wis. 52, 28 N. W. 232, 33 N. W. 591.)
“The defendant made no new or unusual use of the stream, nor did it create conditions essentially different from those that would have resulted from the upper proprietors holding the water back at stated intervals without any ponding thereof on its part. The intermittent breaking and freezing of the ice from which the greater damage resulted was caused as much by the action of the upper mill owners as it was by that of the defendant, and it is a verity in the ease that some damage would have been done to the highway if neither the upper proprietors nor the defendant had manipulated or controlled the water in any respect. The location of the highway with reference to the river was such that the damage sustained might be said to be a natural and necessary incident thereto. It was the combined action of the upper proprietors in periodically shutting off the flow of water, of the defendant in then ponding it, and of nature in freezing and expanding it under such changing conditions, together with the natural stage of high water in the spring when the ice was carried away, that caused the damage. Under such circumstances, the defendant, whose use of the water was lawful, cannot be held liable.”
In view of the foregoing it becomes unnecessary to review the authorities cited by the plaintiff in his brief. The court properly sustained the separate motions for directed verdicts.
Specifications of error Nos. 26 to 32, both inclusive, have to do with the action of the trial court in refusing to strike certain items from the memorandum of costs, and, while we are not disposed to interfere with the ruling of the lower court, yet brief mention of this matter seems desirable.
Specification of error No. 26 challenges the correctness of the ruling of the court in refusing to strike from the memorandum of costs the item of $521.92 claimed by defendants for making a topographical map showing the topography of the land of the plaintiff and surrounding land to which reference is made in the pleadings in this case. One of the objections urged against this item is that the map was prepared before this suit was filed and was not made in order to prepare a defense to this or other suits. It is also, objected that the charge made is excessive, and that if the item is a proper charge no more than one-eighth thereof should be taxed against the plaintiff, as seven others have similar suits pending in which this map could be used.
Mr. J. C. Stevens, a consulting engineer, caused to be made a survey of the Madison Yalley for the purpose of determining the cause of the ice gorging or winter overflow problem on the Madison River. Mr. Don C. Merriott, a 'surveyor, made the survey, and also what is known as a plane-table map while on the ground, and the map for which a charge is made in the memorandum of costs and which the court allowed as a proper item of costs incurred by defendants, is a tracing of this original or plane-table map. It is true, as stated by Mr. M. M. Duncan in his affidavit in support of the motion to tax costs, that the survey and the original map were made prior to the institution of the present action, and this was the testimony of Mr. Stevens, who caused the survey to be made; but in the affidavits in. opposition to the motion to tax costs it is stated positively that the map introduced and received in evidence, and for which the charge is made in the cost bill, was made after the institution of the present action and for the purpose of being used on the trial thereof. This uneontradicted statement in the defendants’ affidavits also disposes of the contention that if this is a proper charge plaintiff should only be required to pay a portion thereof, as there are other suits pending of like character in which the map could be used.
As to the reasonableness of the charge for making the map, there is a direct conflict in the affidavits in support of and in opposition to the motion to tax costs. Mr. Duncan states in his affidavit that $150 would be a reasonable charge for making the map, while the affidavits of the defendants affirm that the charge made in the memorandum of costs is reasonable and proper. This matter may be disposed of by the following pertinent observation made in the case of Kelly v. City of Butie, 44 Mont. 115, 119 Pac. 171: “The question of fact raised by the affidavit just quoted was for the district court to decide. The original memorandum, verified as it was, was prima facie evidence that the amounts named therein were necessarily expended. The burden of overcoming such showing was on the defendant. The district court found that the burden had not been sustained, and we are not disposed to interfere with the finding. [Citing cases.]”
Specifications of error numbered 27 to 32, both inclusive, assign as error the refusal of the lower court to strike from the memorandum of costs items of witness fees and mileage of six witnesses, because they did not testify on the trial.
The affidavit of Mr. M. M. Duncan, in support of the motion, states that these witnesses were never called or examined as witnesses during the trial of this ease, and no showing was made on the part of the defendants that the testimony which the witnesses were expected to give could reasonably be offered as relevant, competent or material to the issues raised for trial.
This memorandum of costs duly verified and filed made out a prima facie case as to the correctness of the items of disbursement therein contained. (Hoskins v. Northern Pac. Ry. Co., 39 Mont. 394, 102 Pac. 988.) The burden then devolved upon the plaintiff to refute this prima fade showing, and to show that the items were not correct.
The affidavits of J. Y. Dwyer, Frank Scotten, J. E. Bell and F. W. Bird, in opposition to the motion, show that these witnesses were actually present in court at the instance of the defendants and prepared to testify on each day for which witness fees were charged, and that they actually traveled the distance for which mileage was charged. It further appears from these affidavits that the testimony which these witnesses were prepared to give was competent, relevant and material to the issues raised by the pleadings, and the reason why these witnesses were not called is that plaintiff failed to offer proof as to some of the issues raised by the pleadings.
The defendants were required to be prepared to meet all the issues raised by the pleadings, as well as to prove their own case, and the fact that plaintiff did not offer proof as to some thereof, concerning which these witnesses were prepared to testify, does not deprive defendants of the right to the fees which were necessary to bring these witnesses into court. (Berry v. City of Helena, 56 Mont. 122, 182 Pac. 117.) The above items of cost objected to were properly allowed.
Several rulings on the admission and rejection of testimony are challenged, but the. disposition we are obliged to make of this case renders consideration thereof unnecessary.
The judgment is affirmed.
Affirmed.
Associate Justices Cooper, Holloway, Galen and Stark concur.
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MR. JUSTICE SHEA
delivered the opinion of the Court.
Pamela McLean Seright, the mother Brandy Lynn McLean, appeals the order of the Cascade County District Court, which denied her motion to modify provisions for custody contained in the court’s decree of dissolution. The mother’s appeal rests entirely on her contention that the father, Walt Dale McLean abandoned the child, and therefore that she is entitled to custody as a matter of law.
The parties were married in July 1974, and had one child, Brandy Lynn McLean, who was born on August 3, 1975. On January 27, 1976, the father petitioned the court for a decree of dissolution and for custody of the child. The court’s decree of December 23, 1976 dissolved the parties’ marriage and placed custody of the child in the father. On October 16, 1978, the mother petitioned the court for modification of its decree of dissolution insofar as it awarded custody to the father. The father filed a motion to quash the mother’s motion on the basis that the court lacked jurisdiction. The court held a show cause hearing on the motion to quash and found it had both personal and subject matter jurisdiction. After conducting a hearing, the court filed an order dated June 14, 1979 which denied the motion to modify and awarded costs and expenses to the father. The mother appeals this order.
The mother presents two issues concerning custody, each of which is based upon her contention that the father has abandoned the child. She asserts that section 40-6-221, MCA, rather than the Uniform Marriage and Divorce Act (UMDA) applies to the present case. Furthermore, she contends that even if the UMDA applies here, that she is entitled to custody because the father’s surrender of physical custody to a third party has threatened the welfare of the child. She also contends that the court failed to consider the financial resources of the parties prior to awarding costs to the father.
The mother’s first contention is that she is entitled to custody of the child according to the provisions of section 40-6-221, MCA. This section provides in part that “[I]f either parent. . . has abandoned his or her family, the other is entitled to the custody ... of the child ...” In connection with this issue, the mother argues that the trial court abused its discretion in finding that the father had not abandoned the child.
The father obtained custody of the child according to the provisions of the December 1976 decree of dissolution. Soon after the dissolution, the father who was then a member of the U.S. Army was reassigned to Oklahoma where he resided with the child until November 1977. After his discharge, he returned to Great Falls. In May 1978, the father transferred physical custody of the child to his brother and sister-in-law who reside in Marquette, Michigan. The father remained in Great Falls until the fall of 1978 when he moved to San Diego, California. At the time of the transfer, the father signed and delivered a custodial care authorization to his brother and in August 1978 sent his brother a letter asking him to adopt the child. The wife argues that the father’s surrender of phys ical custody and letter to his brother established as a matter of law the father’s abandonment of the child.
Without attempting to state any precise definition, we recognize that evidence of the parent’s intent to escape his or her parental duties is an important factor in determining whether abandonment has occurred. See Pratt v. Bishop (N.C.1962), 257 N.C. 486, 126 S.E.2d 597, 608; 2 C.J.S. Adoption of Persons § 61(a), p. 481, etseq. To constitute abandonment, a natural parent’s surrender of physical custody must be accompanied by some act indicating the transfer was not intended to be temporary. See Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575; State v. District Court, Gallatin County (1957), 132 Mont. 357, 318 P.2d 571. The trial court’s decision concerning child custody will not be disturbed unless there is a clear abuse of discretion. See Lee v. Gebhardt (1977), 173 Mont. 305, 567 P.2d 466.
There is ample evidence in the record to support the trial court’s conclusion that abandonment did not occur. After his discharge from the Army, the father was temporarily unemployed. He transferred custody of the child to his brother in order to attend vocational school and thereby acquire steady employment. Thus, the circumstances surrounding the transfer of custody suggest that the father intended to regain custody of the child. Furthermore, it appears the father’s primary purpose in consenting to adoption was to provide a healthy environment for the child rather than to relinquish his parental duties. The father consented to adoption in order to protect the brother’s custody of the child from challenges by third parties and the mother. Thus, the father’s consent was contingent upon the mother’s release of any claim to the child. We find no error in the court’s conclusion that abandonment did not occur, or in its failure to apply section 40-6-221, MCA, to this case.
The mother contends that even under the UMDA’s requirements for modification of custody, she is entitled to custody of the child. In 1979, the Montana State Legislature deleted the affidavit requirement for motions to modify custody filed within two years of the prior decree. See section 40-4-219(1), MCA (amended). However, in 1978, this requirement was still in effect and it required the mother to accompany her motion, which was filed within two years of the decree of dissolution, with an affidavit establishing that “there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral, or emotional health.” See section 40-4-219(1), MCA (unamended). The mother filed an affidavit in support of her motion but the court found that the mother failed to show “any harm to the child in her present environment, the preponderance of the evidence being clearly to the contrary.”
The affidavit required under unamended section 40-4-219(1), MCA, is a jurisdictional prerequisite to a court’s modification of its custody decree. See Strouf v. Strouf (1978), 176 Mont. 406, 578 P.2d 746. Prior to the court’s order refusing modification, the father filed a motion to quash based on the court’s lack of jurisdiction over the child. The court issued an order finding that it had both personal and subject matter jurisdiction and denied the father’s motion. The mother contends that the court’s conclusion that it had subject matter jurisdiction implicitly rested on a finding that her affidavit in support of the motion to modify was sufficient.
There is no merit in this argument. At the hearing on the wife’s motion, the husband’s counsel asked the court whether it had implicitly ruled on the sufficiency of the affidavit. The court stated that it would review the jurisdictional issue raised by the affidavit requirement and dismiss the motion if it determined that it lacked jurisdiction. The court’s order also reveals that it had not already determined the sufficiency of the affidavit as the court stated in language tracking section 40-4-219(1), MCA, that the affidavit was insufficient.
The mother’s final argument concerning child custody is that the court abused its discretion in determining that the child’s present environment did not endanger the child’s welfare. The mother argues that the father abandoned the child and thus, that the court erred in determining the adequacy of the father’s custody in terms of the care provided by the brother. We have already concluded however, that the record supports the conclusion that the father did not abandon the child. The father has completed truck driving school, and is now employed as a truck driver. Although his work requires that he be away from the child for weeks at a time, the father maintains his legal residence at the brother’s home. The father spent one month in 1979 residing at the brother’s home, and the child recognizes that the father is her natural father. Under these circumstances the court properly considered the child’s environment in relationship to her actual living circumstances. The evidence presented at the hearing on the mother’s motion established that the child lives in very pleasant surroundings which enhance rather than threaten her physical and emotional well-being.
The court awarded to the father his costs and expenses for defending against the motion. The court has authority to award costs here only if the award is equitable in light of the financial resources of each party. See section 40-4-110, MCA. The father is employed while the mother is indigent. She has appealed in forma pauperis to this Court. Nothing in the court’s findings of fact or order suggests that it considered her financial position. Accordingly, this portion of the court’s order is reversed.
With the exception of the award of costs to the father, the court’s order denying the mother’s motion is affirmed. The award of costs is reversed.
Except as modified, the judgment of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
|
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MR. CHIEF JUSTICE HAS WELL
delivered the opinion of the Court.
Plaintiff and appellant Carmine Cutone appeals from an order of the Deer Lodge County District Court affirming the Anaconda-Deer Lodge County Board of Adjustment’s denial of Cutone’s request for a zoning variance.
In July, 1973, the City of Anaconda adopted a zoning ordinance based upon land use designations in its comprehensive plan. The governments for the City of Anaconda and The County of Deer Lodge were merged into a new governmental unit, Anaconda-Deer Lodge County, in May 1977. Anaconda-Deer Lodge County, the respondent, is the successor to all legislation of the City of Anaconda, including the zoning ordinance.
Cutone owned the Ace Bar, 320 East Park Street, Anaconda, until December, 1977, when he sold the building to the Anaconda Urban Renewal Agency. In February, 1978, Cutone purchased two buildings at 803-805 East Park Street intending to relocate his bar. The block was and is within a district zoned “RM”, which stands for “Multiple-Family Residential”, even though there are several commercial establishments in the immediate area. Prior to Cutone’s purchase the premises had been used partially for storage and partially as a taxidermy shop.
Following the purchase of the property Cutone applied to the Board of Adjustment for a variance to allow him to open a bar and restaurant. The Board of Adjustment denied the request for a variance after holding a public hearing.
Cutone filed a complaint in District Court seeking to overturn the Board of Adjustment’s decision, or in the alternative, to have the zoning ordinance declared unconstitutional. The District Court directed the Board to review its denial and to return its findings to the court. The Board of Adjustment found that granting a variance would not be in the best interests of the community as a whole and that the proposed use would not be in harmony with the general purpose and intent of the zoning ordinance. The Board based its decision upon findings that the premises were unsuitable for the proposed use, that it would constitute a fire hazard, and that the off-street parking requirements of the zoning ordinance would not be met. The Board of Adjustment had received a petition and oral testimony from 28 area residents who were opposed to the granting of a variance.
After the Board of Adjustment reviewed its denial of the variance request, the District Court allowed the appellant a full hearing and testimony was introduced by both parties. The court made the following findings and conclusions: (1) that Cutone, at the time of purchase, either had knowledge of the zoning designation or had the means of acquiring the knowledge and either made no inquiry or assumed that a variance would be granted; (2) that the Board of Adjustment has consistently refused to grant variances for commercial use in an area zoned “RM”; (3) that the original adoption of the zoning ordinance was proper, since there was no compelling evidence to show a failure to reasonably consider the character of the district and its peculiar suitability for particular uses; and (4) that the ordinance was constitutional.
The following issues have been considered on appeal:
1. Whether the zoning board failed to comply with state law in adopting the zoning ordinance;
2. Whether the Anaconda-Deer Lodge County Board of Adjustment and the District Court abused their discretion in denying the requested variance;
3. Whether the ordinance results in a taking of Cutone’s property for public use without due process of law;
4. Whether the zoning ordinance is an unconstitutional denial of equal protection on its face;
5. Whether the ordinance as applied to Cutone violates the Fourteenth Amendment guarantee of equal protection of the law.
First, appellant contends that the zoning commission failed to follow Montana statutory law when enacting the zoning ordinance in question. The thrust of this contention is that the best and most appropriate use of the property within the district was not considered.
In looking to the statutory framework to be followed by the local government, section 76-2-301, MCA, in pertinent part, provides that “. . . [f]or the purpose of promoting health, safety, morals, or the general welfare of the community [the local governmental unit] .... is hereby empowered to regulate and restrict . . . the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.”
Section 76-2-304, MCA, as set out below, establishes criteria to be considered by the local government in adopting a zoning ordinance.
"Purposes of zoning. (1) Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements.
“(2) Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.” (Emphasis added.)
Gene Marcille, a past-president of the City of Anaconda planning board and former planning director for Deer Lodge County, testified at trial concerning the considerations and proce dures used by the planning board in adopting zoning ordinances for the City of Anaconda. The planning board, in general and in zoning Park Street, reviewed zoning recommendations proposed by a consulting firm to determine whether the zones were properly proposed. Public hearings and meetings were also held. According to Mr. Marcille’s testimony, the board considered the following factors in adopting the proposed zoning ordinances: (1) The density of housing; (2) the density of population; (3) fire protection problems including access for buildings, traffic patterns and traffic density; (4) the overall safety of the public looking again to traffic patterns, traffic density and off-street parking; and (5) of primary importance, the highest and best use within the various portions of the community. Based on this testimony the record contains substantial credible evidence that the Montana statutory framework for adopting zoning ordinances was properly followed.
In essence, the appellant is actually contending that there was a violation because he is not being allowed to use his property for its highest and best use. However, the statute does not require that the zoning ordinances take into account the highest and best use of each parcel of real estate within the zones or community. In fact, section 76-2-304, MCA, requires that the peculiar suitabilities and most appropriate use of the land throughout the municipality be considered. Based upon the record, we find substantial evidence that Anaconda-Deer Lodge County has acted within the authority delegated to it by the legislature.
Were we to hold that a zoning ordinance must ensure each property owner the highest and best use of his property, an intolerable burden would be placed on local governments, and the entire purpose of local planning legislation would be defeated..
Next, section 76-2-323, MCA, must be considered in addressing appellant’s challenge to the Board of Adjustment’s denial of the variance request. The statute provides, in pertinent -part:
“Powers of board of adjustment. (1) The Board of adjustment shall have the following powers:
“(c) to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done . . .”
Montana case law clearly establishes that the following conditions must be present before the granting of a variance is proper: (1) The variance must not be contrary to the public interest; (2) a literal enforcement of the zoning ordinance must result in unnecessary hardship owing to conditions unique to the property; and (3) the spirit of the ordinance must be observed and substantial justice done. Lambros v. Missoula (1969), 153 Mont. 20, 452 P.2d 398; Rygg v. Kalispell Board of Adjustment (1976), 169 Mont. 93, 544 P.2d 1228. These cases both state that the scope of review is to be limited to the determination of whether competent and substantial evidence exists to support the finding and whether the court or Board of Adjustment has clearly abused its discretion.
Testimony at trial reveals that the two buildings, owned by the appellant and located at 803-805 East Park Street, are built within inches of the neighboring buildings, which creates a fire hazard. This hazard would be even greater if the buildings were converted into a tavern. In addition, expert testimony reveals that a tavern generates an average increased volume of traffic from both patrons and business service personnel. This increase in traffic would create parking problems as well as emergency vehicle access difficulties. In this instance the hazard is even more acute than it would be in other portions of the city, since Park Street is one of Anaconda’s two major fire lanes.
This evidence supports the District Court’s finding that the granting of the variance in this case would be contrary to the public interest and the spirit of the ordinance. The spirit of the ordinance is obviously to limit commercial growth in this area in the interest of public safety and well being.
The denial of a variance also does not result in an unnecessary hardship to the appellant. The property purchased, a 140’ X 75’ lot with two buildings on it, was purchased for $15,000. The buildings would require extensive remodeling to convert them into a tavern and to bring them up to building code specifications, and a part of a building would have to be destroyed in order to create a minimal number of off-street parking spaces. Also, the appellant owns eight houses in Anaconda, has owned and operated the Ace Bar, and has leased and operated the 919 Bar. These facts point to the conclusion that Mr. Cutone should have had sufficient real estate knowledge to determine how the land was zoned prior to the purchase.
With regard to appellant’s contention that he has been deprived of property without due process of law, it is apparent that he does not state a claim on which relief can be granted. The ordinance was passed in 1973 and appellant did not purchase the property until 1978. Thus, any diminution in value occasioned by the ordinance occurred prior to his ownership.
Appellant next contends that the zoning ordinance is an unconstitutional denial of equal protection on its face. However, it is well established that such an ordinance is a valid exercise of police power and will be upheld if any reasonable basis exists for the classification within the ordinance.
The ordinance being attacked in this appeal contains 46 enumerated qualifying uses within the zone, many of which pertain strictly to residential occupation. It appears that appellant’s challenge focuses primarily upon the following permitted uses, nonresidential in character: a retail apothecary shop selling only medical related supplies and located within a clinic or hospital, clinics, colleges, hotels not catering to transient guests, fraternal lodges, coliseums, stadiums, gymnasiums, churches, and mortuaries. It is appellant’s contention that no reasonable basis exists for allowing the above uses and not allowing nonconforming commercial uses such as restaurants or taverns.
This Court, in Freeman v. Board of Adjustment (1934), 97 Mont. 342, 34 P.2d 534, addressed the constitutionality of zoning ordinances under both the due process clause and the equal protection clause. In dicta, the Court stated that the trend of decisions is to support the validity of the ordinances and the statutes authorizing them, and that “the weight of judicial opinion so clearly preponderates in support of such provisions that we may well take the principle as established.” The basis for the finding of constitutionality is that such ordinances “constitute a valid exercise of the police power; that is to say, they have a substantial bearing upon the public health, safety, morals, and general welfare of a community.” 97 Mont. at 352, 34 P.2d at 537.
Freeman v. Board of Adjustment, supra, followed the landmark United States Supreme Court case of Euclid v. Amber Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. In addressing the constitutionality of the ordinance which restricted the plaintiff’s land to residential use, the Court said:
“The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation ... If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” (Emphasis added.) 272 U.S. at 387-388, 47 S.Ct. at 118, 71 L.Ed. at 310-311.
More recently, the United States Supreme Court had occasion to review a more restrictive ordinance. The ordinance restricted land use to one-family dwellings, preventing the occupation of residences by more than two unrelated individuals within the district. The action challenging the constitutionality of the ordinance was brought by the owner of a residence and three of his six unrelated tenants. Justice Douglas stated that he realized that upholding the ordinance would have an economic impact on the rental values within the community. However, the Court, in upholding the ordinance, stated:
“We deal with the economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be ‘ “reasonable, not arbitrary” ’ (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989) and bears ‘a rational relationship to a [permissible] state objective.’ Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.
“It is said, however, that if two unmarried people can constitute a ‘family,’ there is no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function.” Village of Belle Terre v. Boraas (1974), 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797.
This Court is also unwilling to sit as a super-legislature. The City of Anaconda, pursuant to its comprehensive plan, passed this ordinance in an attempt to reduce the average increased volume of traffic and congestion created by commercial establishments along Park Street, a major fire land within the city. The ordinance is “reasonable, not arbitrary,” and “bears a rational relationship to a permissible state objective,” the promotion of public safety. It is unquestioned that the local government could have imposed greater restrictions to protect the public to a greater extent, or placed the interest of individual property owners above the public interest; however the line must be drawn somewhere. The local government is in a better position to draw that line, and we must defer to its judgment.
The appellant also contends that the ordinance is an unconstitutional denial of equal protection as applied. This issue is usually raised in cases in which a statute which is constitutionally valid on its face is administered in an arbitrary and discriminatory fashion. See Yick Wo v. Hopkins (1886), 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. In our present appeal, the District Court found that “the Board has consistently refused to grant variances for commercial use based upon the RM designation of the area.” Appellant raises no evidence attacking this finding and the record does not reveal any instances of arbitrary or discriminatory administration of the ordinance. It appears that this argument is but another means for appellant to assert that a variance should have been granted. As previously discussed Montana statutory and case law clearly delineates the instances in which a variance is to be granted.
We therefore conclude that the ordinance is constitutional as a valid exercise of police power, that it has not been applied in an arbitrary or discriminating manner, that the City of Anaconda acted within its delegated authority in enacting the ordinance by complying with statutory requirements, and that the Board of Adjustment and the District Court were fully justified in finding that the granting of the requested variance would not be in the public interest.
The judgment is affirmed.
MR. JUSTICES HARRISON and DALY, concur.
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4
] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
Adeline Donnes, the owner of ranch land in Yellowstone County, appeals for a judgment of the Yellowstone County District Court, entered on the basis of a jury verdict awarding her $ 10,653.38 for land condemned by the State of Montana.
The landowner asks for a new trial on three grounds. She contends first, that the trial court erred in refusing her testimony as to the depreciation in value to the land remaining after the take; second, that the trial court erred in refusing her testimony as to an alleged comparable sale; and third, that the jury failed to award her damages for what she contends is a permanent impairment of the ranching operation. She argues alternatively for a remand, contending that she is entitled to recover attorney fees and expenses of litigation. We affirm the judgment of the trial court.
The ranch land involved was condemned to obtain property for a four-lane interstate highway. The highway project bisected the landowner’s property from the west to the east, leaving the property connected by a livestock tube or tunnel. The landowner’s property consists of approximately 1,435 acres and is used for a cow-calf ranching operation. The amount of land actually taken by the State was 80.3 acres. All previously existing stocktrails and other points of access to the portion of land lying to the north of the interstate were cut off by the highway project. In order to provide access from the property north of the interstate to the property south of the interstate, the State constructed a tunnel or livestock tube in one of the coulees. The interstate split the winter range into two parts, the north portion and the south portion. All of the water wells for the winter range were located on the south portion. All of the land immediately to the north of the interstate was sealed off without any water for the livestock, necessitating the construction of a well on the north portion.
The landowner concedes that she was permitted to testify to the value of her land for the purposes it was then being used, but contends that the trial court should have permitted her to go an additional step and testify to the depreciated value of the ranch land after the condemnation. The landowner can, of course, testify as to the reasonable value of the land according to the uses it is then being put, but ownership alone does not qualify one to testify as to its value for other purposes. In such event the landowner must have some peculiar means of forming an intelligent and correct judgment as to the value of the property in question beyond what is presumed to be possessed by men generally. State Highway Commission v. Marsh (1974), 165 Mont. 198, 203, 527 P.2d 573, 575. The landowner contends that the trial court erred in not permitting her to testify to the resulting depreciation in value of the ranch caused by the taking of the 80.3 acres. We determine, however, that in light of the landowner’s own testimony, the ruling of the trial court was correct.
The landowner made an offer of proof to the effect that the depreciation of the property in total, based on the total cow-calf operation, was $40,000. In not permitting the landowner to testify as to this, the trial court ruled that she had failed to lay a proper foundation, but that if she could do so at any time during the trial, such testimony would be permitted. She offered no additional foundation.
It is clear that the landowner possessed no peculiar means of forming an intelligent and correct judgment as to the value of the property beyond what is presumed to be possessed by men generally. She did not testify to the value of the remaining land after the take. She testified that she did not personally operate the ranch. Although she testified at length concerning solutions or cures to the problem created by the interstate dividing the ranch land, she was unable to estimate the necessary costs to make the corrections. Nor could she assign a monetary value to the effect of the change in operations, as it related to the total value of the ranch. Indeed, when asked her opinion as to the value of the remaining land after the take, she testified it was too difficult to give such an opinion and declined to do so. Under these circumstances, the ruling of the trial court was correct.
In 1962, the landowner purchased grazing land from the State, and she wanted to testify as to the price she paid for this land. However, the trial court refused her testimony, ruling that the 1962 purchase was not a comparable sale in relation to the land involved here that was being condemned by the State. The landowner offers no reasonable rationale as to why she should have been permitted to so testify, and we find none.
The third contention of the landowner is that she was entitled as an element of depreciation damages, to damages for permanent impairment of the ranching operation, but that the jury only allowed her the cost of a well on the north portion of the remaining land. Although permanent interference with farming or ranching, as opposed to temporary interference or inconvenience to farming or ranching operations, is recognized as an element of compensation, Meagher Cty. Newlan Creek Water Dist. v. Walter (1976), 169 Mont. 358, 364, 547 P.2d 850, 854, the facts here fully support the jury verdict.
The heart of the landowner’s case consisted of the measures or methods needed to cure the problems created by splitting the land into a north and south portion, joined only by a tunnel. Witnesses for both sides testified at length concerning the effect of the construction of the interstate on the cow-calf operation, but little evidence exists as to the permanent impairment of the ranching operation.
It cannot be doubted that the livestock tube constructed to provide access from the north portion to the south portion of the property created some inconvenience, but it did not, however, constitute a permanent impairment of the ranching operation. The land on the north side of the interstate was separated from the water wells on the south side, except for the access provided by the livestock tube. An expert witness for the landowner testified that after the construction of an electric water well on the north portion of the property, the value of the land on which it was constructed would be just as high as it was before the condemnation. Although an element of inconvenience surely exists, we cannot say than an element of permanent impairment exists. The facts of this case did not compel the jury to award damages for permanent impairment.
The final issue raised by the landowner is that she is entitled, under section 70-30-305, MCA, to an award of reasonable attorney fees and the costs of litigation in addition to the amount of the jury’s verdict. By this statute, attorney fees and the expenses of litigation go to the landowner in addition to the amount of the jury verdict, if the landowner receives an award in excess of the State’s final offer. The contention here is that the State’s offer of $6,000, made prior to the date of the commissioner’s value hearing, must be the one used in comparing it to the jury’s verdict of $ 10,653.38. This analysis, however ignores the statute and the case law governing the situation.
The right to recover necessary costs of litigation, as provided for by section 70-30-305, MCA, does not vest when the suit is filed, but vests only when the private property owner prevails, securing a higher verdict than the State’s final offer. State Department of Highways v. Olsen (1975), 166 Mont. 139, 146, 531 P.2d 1330, 1334. Under subsection 2 of this statute, to prevail means that the property owner must receive an award in excess of the final offer of the State. State By And Through Dept. of Highways v. Burlingame (1979), 185 Mont. 223, 597 P.2d 51, 55.
The State is not confined, as the landowner contends, to the offer of $6,000 made before the commissioner’s value hearing. Rather, the State may make an offer at any time before the trial starts. State, Department of Highways v. Olsen, supra, 166 Mont. at 146, 531 P.2d at 1334. The landowner rejected the offer of $6,000, but before the trial started, the State made its final offer of $20,100 which the landowner rejected. It is this final offer which must be measured against the jury verdict. Clearly, therefore, the landowner is not entitled to attorney fees and expenses of litigation. The State’s offer exceeded the jury verdict.
The judgment of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and MR. JUSTICE HARRISON concur.
|
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ORDER
PER CURIAM:
In a formal complaint the Commission on Practice of the Supreme Court of the State of Montana charged respondent with professional misconduct in three specific instances set forth in the three counts in that complaint.
Pursuant to the Rules of this Court and its Commission of Practice, pleadings were filed, testimony taken, motions made, and a full formal hearing held. Following the hearing the Commission on Practice made its findings and recommendations. Thereafter respondent filed exceptions to the Commission’s report, findings of fact and recommendation. Briefs were filed by all parties and the matter has been submitted to us for review and decision.
One of the three counts considered by the Commission was dismissed on its finding that respondent did not violate any provisions of the Code of Professional Responsibility with regard to the transaction involved.
Another count involved a loan by respondent as guardian of the estate of May Beck to a Colorado Corporation. The Commission set forth the record evidence as to this count on pages 1 through 8 of its report. It set forth the applicable law and Canons of Professional Ethics on pages, 8, 9, 10 and 11 of its report, specifying the following statutes and sections of the Canons of Professional Ethics adopted by the Supreme Court of the State of Montana on September 28, 1965, and supplemented in 1973, which are applicable to respondent’s conduct: 91A-5-417, 72-20-201, 72-20-203, 72-20-204, 72-20-207 and DR1-102, DR5-101, DR5-104, DR5-105, DR5-107 and DR6-101.
The Commission found that the respondent violated the foregoing statutes and Canons of Legal Ethics in the following respects:
“(1) A false inventory and appraisement was filed in the May Beck Guardianship.
“(2) Viewing the evidence in the light kindest to Respondent, Mr. Reno in his position of trust made a speculative loan to an out-of-state corporation and had a direct conflict of interest in that he was a shareholder, director, officer and attorney for the corporation.
“(3) Mr. Reno filed a final accounting with the Court which was false in that it sets forth that there was a mortgage balance of $22,127.24, when in fact there was no property to be secured by a mortgage.
“(4) If in fact there was a note secured by a mortgage then Mr. Reno failed to protect the Guardianship by recording the mort gage and having the property secured by the mortgage covered by insurance.
“(5) The house was destroyed in 1973. In October it will be six years since the purported security was lost and Mr. Reno has taken no action whatever to either collect from the defunct corporation or to notify the bonding company.
“(6) Mr. Reno signed and filed false annual corporation statements with the Secretary of State of the State of Colorado.
“(7) He has failed to notify the Court of the dire situation that the Guardianship assets have in fact been dissipated.
“(8) Mr. Reno has made no attempt to reimburse the guardianship for the loss resulting from the violation of his trust even though he has received a fee of $ 100,000.00 (Tr. 441-443) and apparently has a good practice as an attorney at law.
“(9) He filed a false petition for the appointment of himself as Personal Representative of the estate of May Beck in that he alleged that he was a creditor of the estate, when in fact he was indebted to the estate for the loss sustained in the guardianship. He also alleged that there were no known heirs when the guardianship records in fact show that there were heirs.
“(10) Mr. Reno never disclosed to the Court or the heirs of May Beck that he was in fact representing the corporation when making a speculative loan to that same corporation.
“(11) He has shown a callous disregard of the rights and interests of the beneficiaries of the May Beck estate.”
On another count respondent was charged with a violation of DR 1-102 in that allegedly his conduct involved dishonesty, fraud, deceit, or misrepresentation; and that he engaged in deceitful conduct for which he could be guilty of a misdemeanor in accordance with section 37-61-406, MCA, (1978), formerly section 93-2105, R.C.M.1947.
On this count the Commission made the following findings:
“In the spring of 1970, Respondent Attorney undertook to represent Lynn Steinmetz on a charge of felony possession of dangerous drugs. Trial took place on May 11, and 12, 1970, in the Thirteenth Judicial District, Yellowstone County, Montana. The Respondent’s client was found guilty on May 12, 1970, and the Respondent Attorney filed a Notice of Appeal in Yellowstone County, Cause No. 7915, on May 15, 1970.
“The Respondent did not have constant contact with his client, but instead dealt on occasion with his client’s mother, one Betty Steinmetz, since the Respondent’s client resided for a time in the State of Colorado.
“For the Steinmetz appeal, the Respondent Attorney charged $1,200.00 and the cost of the transcript was $350.00 (Ex. 19).
“On or about December 3, 1970, the Respondent Attorney received an Order to Show Cause from the Montana Supreme Court requiring him to show cause within ten days why his appeal should not be dismissed for failure to follow court rules, since he did not file a brief or get an extension to do so. He was given until December 23, 1970, to file the brief; however, no brief was ever filed by Respondent Attorney.
“Later, without his client’s knowledge or consent, the Respondent Attorney entered into negotiations with G. Todd Baugh, a Deputy County Attorney of Yellowstone County. On May 8, 1972, Respondent Attorney stipulated to the County Attorney’s office that the appeal to the Montana Supreme Court would be dismissed.
“Strangely, on May 15, 1972, the Respondent telephoned his client’s mother Betty Steinmetz, and told her that the case had been thrown out by the Supreme Court, but he did not know the reason and would let her know as soon as he found out. He would send her a copy of the Court’s Order (Ex. 15, Tr. 195). Respondent Attorney testified he told Betty Steinmetz that the appeal was dismissed in 1972 (Tr. 402). The Respondent insists that he told Betty Steinmetz that the case was dismissed by Judge Luedke and not the Supreme Court (Tr. 426).
“Betty Steinmetz repeatedly called Respondent Attorney and asked him about the disposition of her son’s case. She also wrote several letters to the Respondent (Ex. 14, 16, 17). Although Betty Steinmetz was not the Respondent’s client (Tr. 344), the Respondent dealt with her on occasion even though he testified that his client, Lynn Steinmetz, told him not to talk to her (Tr. 431).
“Betty Steinmetz complained that Respondent Attorney did not keep appointments with her and never explained the facts of the appeal to her (Tr. 196).
“Lynn Steinmetz was generally satisfied with the Respondent’s representation of him, since he received a deferred sentence and spent very little time in jail (Tr. 168-170). Lynn Steinmetz did complain that he could not find out the status of his appeal when he was in the State of Colorado and never received any word from his attorney (Tr. 171). Respondent testified Betty Steinmetz was very upset that her son was convicted and did not want him to spend 60 days in jail, although he received a deferred sentence (Tr. 191). She was worried that her son would always have a criminal record and would not be allowed to vote (Tr. 176).
“After several years of apparent inaction and lack of communication, Respondent mailed a copy of the Thirteenth Judicial District Court Order signed by Judge Luedke, dated June 16, 1972, to Betty Steinmetz. The Order was filed on October 15, 1975. There is no question that the Order, although dated June 16, 1972, was not signed by Judge Luedke until on or about October 15, 1975.
“Betty Steinmetz felt that the Respondent Attorney deceived her son and herself (Tr. 189-193). She pointedly stated ‘you have to trust your lawyer’ (Tr. 189). She felt when the Respondent phoned her on May 15, 1972, and said the Supreme Court threw out the case she felt that her son was “free and clear” from the felony conviction of possession of dangerous drugs. She thought her son had been exonerated of everything (Tr. 195). She also felt that it would be better to have her son cleared from the Supreme Court than waiting for his probation to terminate and have his deferred sentence set aside (Tr. 197).
“Betty Steinmetz was disturbed when she found that Judge Luedke signed the Order in 1975 and not in 1972 (Tr. 201). Betty Steinmetz and her son wanted the Supreme Court to hear her son’s case on its merits; however, the case was dismissed by the Respondent, and Lynn Steinmetz did not have his day in court (Tr. 204, 207).
“The Respondent countered Betty Steinmetz’a allegations of fraud, deceit and misrepresentation by testifying that he filed the Notice of Appeal to get Lynn Steinmetz out of jail, but there was really no chance of winning on appeal, and, therefore, he did not file a brief (Tr. 335, 336, 406). Respondent felt since he could lose the appeal he had no alternative but to stipulate with the County Attorney to dismiss it (Tr. 338). Respondent also indicated that he did not inform Betty Steinmetz that the Supreme Court had exonerated her son. He performed the services of preparing and filing a Notice of Appeal, entering into a stipulation with the County Attorney, ordering the transcript, and conferring with the County Attorney (Tr. 396, 408). He further affirms that Betty Steinmetz was told the appeal was dismissed in 1972 and he told her that Judge Luedke had signed the Order clearing her son (Tr. 402, 426).
“Feeling she had been deceived, Betty Steinmetz retained Clarence Belue, Attorney at Law, who settled her case against the Respondent for $4,650.00. Respondent’s client collected more than he paid the Respondent (Tr. 174, 188, 189). In settling the case with the Steinmetzes, the Respondent obtained a Release from them dated April 12, 1976. The Release indicated: “This Release or any payment made pursuant thereto shall (not) (sic) in anyway constitute admission of liability by the said James A. Reno, the same being denied.’ (Respondent’s Ex. ‘D’).”
The Commission found that respondent violated his duty to Betty Steinmetz pursuant to DR1-102.
The Commission on Practice has recommended that respondent James A. Reno be disbarred from the practice of law in the State of Montana; that he be assessed the costs of these proceedings and that he be further ordered to make complete restitution of the moneys loaned to Waring Corporation, in the amount of $22,127.74, together with interest thereon at the rate of Eight and One-half per cent (8V2%) per annum, from June 25, 1973, and that said sum be paid within 90 days.
This Court has carefully reviewed the charges made against respondent; the two-volume transcript of the formal hearing; the evidence, findings of fact, conclusions of law, and recommendations of the Commission; and the exceptions to the same filed by respondent. We have also reviewed the briefs filed on behalf of the Commission and on behalf of respondent. We find substantial credible evidence warranting discipline of the respondent.
In our opinion, the professional misconduct of respondent, James A. Reno, requires disbarment. We therefore order and adjudge that James A. Reno be disbarred; that his name be stricken from the role of attorneys and counselors of this Court; and that he be prohibited from practicing as an attorney and counselor in all the courts of this State.
The Clerk of this Court shall give notice of this order to James A. Reno, his counsel, the Clerks of all the District Courts in Montana, the Chairman and Secretary of the Commission on Practice, the Clerk of the United States District Court for the District of Montana, and the Clerk of the Ninth United States Circuit Court of Appeals.
Further, respondent is ordered to make complete restitution of the moneys loaned to Waring Corporation in the amount of $22,127.74, together with interest thereon at a rate of 8V2 % per annum from June 25, 1973 until paid, and that said restitution shall be paid within 90 days of the date of this order.
IT IS FURTHER ORDERED AND ADJUDGED that respondent be assessed the costs of these proceedings in a sum to be certified to this Court by the Chairman and Secretary of the Commission on Practice within 15 days of the date hereof; and that said payment be made to the Clerk of this Court within 30 days thereafter, a copy of the costs so fixed to be served on respondent at the time of filing.
Further, to protect the interests of respondent’s clients, respondent, and in the interest of justice, this Court refers the further supervision and processing of any and all legal matters being handled by James A. Reno to the Honorable Charles Luedke, Chief District Judge, of the Thirteenth Judicial District of the State of Montana. The Clerk is directed to mail a true copy of this order to Judge Luedke.
IT IS SO ORDERED.
|
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] |
MR. JUSTICE SHEA
delivered the opinion of the Court.
The defendant, Board of Trustees of Missoula County High School (hereinafter referred to as Board) appeals the order of the Missoula County District Court, granting the plaintiffs’ motion for a new trial. The Board contends that the trial court erroneously concluded that the expert testimony of Arlyn Simms was not necessary and that his testimony prejudiced the plaintiffs’ case.
On April 24, 1975, the plaintiffs, Margaret and Albert Ployhar commenced this action to recover damages for the death of their son, Patrick. In September 1972, Patrick enrolled in a heavy equipment operation class at Missoula Technical Center (Tech). On April 30, 1973, students under the supervision of Tech instructors were leveling ground with caterpiller tractors and other heavy equipment used to teach class techniques. At the time the accident occurred, Patrick, then 19 years old, was placing stakes behind a caterpillar being operated by another student. When the caterpillar reversed its direction, Patrick was caught under the cat and crushed. He died as a result of the accident.
The plaintiffs’ amended complaint alleged that the Board had negligently caused the decedent’s death by failing to furnish the caterpillar with a back up alarm, by directing the decedent to place stakes in a dangerous area, and by permitting the caterpillar to be operated by an inexperienced person without proper supervision. At trial Arlyn Simms, an instructor at Tech, who was supervising some of the students when the accident occurred, testified for the plaintiffs.
During cross examination, counsel asked Simms what in his opinion was the cause of the accident. Simms replied that Pat was at fault. On February 15, 1979, the jury returned a verdict for the defendant. The plaintiffs made a motion for a new trial which the trial court granted on March 23, 1979. On April 9, 1979, the Board filed a notice of appeal of the court order for a new trial.
The trial court has broad discretion in granting or refusing to grant a new trial. Its order will not be disturbed on appeal in the absence of a clear showing of a manifest abuse of discretion. See Yerkich v. Opsta (1978), 176 Mont. 272, 577 P.2d 857. This Court is especially reluctant to reverse an order granting a new trial because it gives both parties an equal chance to relitigate their positions in a second trial. Tigh v. College Park Realty Co. (1967), 149 Mont. 358, 427 P.2d 57. An order granting a new trial will be upheld if it can be sustained on any of the grounds contained in the order. Tigh, supra.
Here, the trial court concluded the plaintiff was entitled to a new trial because Arlyn Simms’ testimony was not necessary to reconstruct the accident and he was a participant in the events surrounding the accident. We conclude there was no abuse of discretion in finding Simms’ testimony was not necessary, and thus, will discuss here only the former point contained in the court order.
Simms gave his opinion as to the proximate cause of the accident. Opinion evidence concerning the cause of an accident is admissible only if the subject matter is beyond the ordinary understanding of the jury. See Ziegler v. Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of the accident must be sufficiently complex to require explanation. See McGuire v. Nelson (1975), 167 Mont. 188, 536 P.2d 768; Massoni v. State Highway Commission (1974), 214 Kan. 844, 522 P.2d 973, 979. See also Dobkowski v. Lowe’s, Inc. (Ill.C.A. 1974), 20 Ill.App.3d 275, 314 N.E.2d 623. Here, there was no need for such testimony. The accident was relatively simple. It involved a single tractor, and the actions of only two individuals, the driver of the tractor and the accident victim. At trial, an eyewitness gave his description of the accident, and other witnesses testified concerning the actions of the tractor driver and the decedent. This evidence appears to be sufficient to allow the jury to make an independent judgment as to the ultimate cause of the accident. Thus, we conclude there was no abuse of discretion in determining that opinion testimony was not needed here.
The Board contends that Simms’ testimony was not prejudicial to the plaintiffs’ case. However, the extent to which the deceased’s own actions caused the accident was obviously a crucial part of the Board’s defense. No other witnesses gave their opinion as to the cause of the accident. These circumstances support the trial court’s conclusion that Simms’ testimony was manifestly prejudicial to the plaintiff’s case.
Accordingly, the order for a new trial is affirmed.
MR. JUSTICES DALY and SHEEHY concur.
|
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] |
MR. JUSTICE SHEEHY
delivered the opinion of the Court.
This is an appeal from an order entered in Rosebud County District Court dismissing the State’s appeal of this cause from justice court. The sole issue presented for review is whether the State may appeal a dismissal order of a justice court pursuant to section 46-20-103, MCA?
Charles Sanchez was brought to trial in Rosebud County Justice Court on June 6, 1979 on misdemeanor charges of reckless driving and obstructing a peace officer. Sanchez entered a plea of guilty to the reckless driving charge but went to trial on the remaining charge. On the second day of trial the justice of the peace granted Sanchez’s motion to dismiss, discharged the jury and released Sanchez.
The State sought to appeal the justice court dismissal by a trial de novo in District Court. A show cause hearing was held on June 27, 1979. Subsequently on July 12, 1979, the District Court issued an order denying the State’s right of appeal on the grounds that the State had no statutory authority to appeal a dismissal in a criminal case.
On July 19, 1979, an attempt was made to refile the charge in justice court. The justice court dismissed the complaint on double jeopardy grounds.
On August 8, 1979, the State filed a petition in this Court for a writ of supervisory control directing the filing of the requested information. The petition was denied on September 4, 1979 for the reason “the remedy by appeal is plain, speedy and adequate” thus precluding issuance of an extraordinary writ.
The State now appeals from the July 12, 1979 dismissal order of the District Court.
Solution of the issue presented for our review is found in the 1972 Mont.Const. Art. VII, § 4, which delineates the jurisdiction of dis trict courts. Subsection 2 states in part: “The district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law. . .”
Turning to Title 46, the Criminal Procedure Title of the Montana Codes Annotated, and in particular, chapter 17 concerning lower court proceedings, we find part 3 entitled “Procedure After Trial — Justices’ and City Courts.” Section 46-17-311, MCA, states:
“Appeal. (1) All cases on appeal from justices’ or city courts must be tried anew in the district court and may be tried before a jury of six selected in the same manner as a trial jury in a civil action, except that the total number of jurors drawn shall be at least six plus the total number of peremptory challenges.
“(2) The defendant may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment.
“(3) Within 30 days, the entire record of the justice’s [sic] or city court proceedings must be transferred to the district court or the appeal must be dismissed. It is the duty of the defendant to perfect the appeal.”
However, as we shall see, this statute is applicable only to appealing defendants and does not grant the State an appeal.
In the present case, it appears the cause was dismissed in justice court pursuant to defendant’s motion which was premised on denial of defendant’s constitutional right to compel witnesses to testify on his behalf in accordance with 1972 Mont.Const. Art. II, § 24. A witness subpoenaed by both parties testified for the prosecution but failed to appear for the defense. As previously noted the District Court dismissed the State’s appeal for lack of jurisdiction, and we agree.
Appellant argues that this appeal is not brought pursuant to section 46-17-311, the trial de novo statute, but pursuant to section 46-20-103(2)(a) instead which provides:
“Scope of appeal by state. (1) Except as otherwise specifically authorized, the state may not appeal in a criminal case.
“(2) The state may appeal from any court order or judgment and substantive effect of which results in:
“(a) dismissing a case;”
Statutes granting the right of appeal to the state in criminal actions must be strictly construed and limited to the instances mentioned. State v. Hagerud (1977), 174 Mont. 361, 366, 570 P.2d 1131, 1134; State v. Cool (1977), 174 Mont. 99, 102, 568 P.2d 567, 568; State v. Peck (1928), 83 Mont. 327, 330, 271 P. 707, 708.
Although the statutes in question are not identical to those concerned within the immediate case, we find the reasoning in Forsythe v. Wenholz (1976), 170 Mont. 496, 554 P.2d 1333 applicable to the instant case. In that case we stated:
“Initially, we note this Court in State v. Bush, 164 Mont. 81, 518 P.2d 1406, stated:
“ ‘. . . since the code [of criminal procedure] was adopted as one comprehensive piece of legislation it should be considered in its entirety to determine the effect of any one section.’
“The district court was correct in excluding justices of the peace from the purview of section 95-2101 because the particular context of that section in Montana’s Code of Criminal Procedure clearly requires a different meaning than that propounded by the appellant, Section 95-201, R.C.M.1947. Chapter 20, Title 95, R.C.M.1947 ‘Justice and Police Court Proceedings’, was accompanied by a Criminal Law Commission Comment which states in part:
‘This Chapter includes only those sections which are peculiar or apply exclusively to justice and police courts. . .’
“In Chapter 20, the only post-trial relief afforded is an appeal to the district court for a trial de novo. Section 95-2009, R.C.M. 1947.” [Now section 46-17-311, MCA], Forsythe, 170 Mont. at 498-99, 554 P.2d at 1334-35.
Section 46-20-103, MCA, when taken in context with all of the sections and provisions of Title 46 and considered in light of how the original code of criminal procedure was arranged and adopted, leads us to conclude that the scope of the section applies only to Montana district courts and not to justice courts. As a result the State has no right to appeal the final decision of a justice court in a criminal case, whether it be pursuant to section 46-20-103, MCA, or section 46-17-311, the trial de novo statute. State v. Bush (1974), 164 Mont. 81, 518 P.2d 1406, applies only to interlocutory orders of the justice court.
The decision of the District Court is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES HARRISON and SHEA concur.
|
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MR. JUSTICE DALY
delivered the opinion of the Court.
Claimant, Walter Hume, filed a petition with the Workers’ Compensation Court, Flathead County, seeking compensation for injuries suffered during his employment with defendant, St. Regis Paper Co. Claimant appeals the denial of his petition.
On October 7, 1975, appellant was pulling and stacking timber for his employer, St. Regis Paper Company, when he stretched muscles in his shoulder and lower neck. Appellant continued to work for ten months following this injury, during which time he received a second injury. He stopped working on August 6, 1976, after seeing two chiropractors and a Kalispell neurologist, Dr. Nelson. Respondent, St. Regis, paid total disability benefits to appellant for this injury until May 25, 1977. Upon receiving the report from a Spokane neurologist, Dr. Lynch, that appellant’s “chronic pain probably is more psychogenic in origin, than due to tissue injury,” respondent terminated benefits to claimant.
Claimant filed a petition with the Workers’ Compensation Court seeking temporary total disability or, in the alternative, a determination of the degree of his disability with an award of permanent partial disability and payment for benefits unreasonably terminated by respondent.
A hearing on claimant’s petition took place on October 4, 1977. Three witnesses testified at the hearing: the claimant, his treating physician, Dr. Nelson, M.D., and defendant’s only witness, Sidney M. Brown, who was the insurance director for defendant.
The Workers’ Compensation Court took judicial notice of the contents of the file from the Division of Workers’ Compensation and advised counsel that it would grant leave to take the deposition of the author of any record or document in the file if counsel found the procedure objectionable. No objections were made. The file included the reports of four medical doctors and two chiropractors.
After the hearing had concluded and upon the respondent’s request, the court ordered the appellant to submit to a medical examination by Dr. Richard C. Dewey, M.D. The Workers’ Compensation Court entered findings of fact and conclusions of law and judgment on June 8, 1978. Its findings of fact stated the results of Dr. Dewey’s examination and the report of a Spokane V.A. Hospital, which respondent furnished to the court several months after the hearing concluded.
The court’s conclusions of law stated that the claimant failed to prove by a preponderance of the credible evidence that his present symptoms and complaints were related to the accident of October 7, 1975. The court’s judgment denied all of appellant’s requests for relief. Claimant has appealed this judgment.
Appellant presents four issues to this Court for review:
1. Was the judgment of the Workers’ Compensation Court supported by substantial evidence, or did the court err in disregarding medical evidence establishing that appellant’s work-related injury caused appellant’s disability existing at the time of the hearing?
2. Did the court err in ordering appellant to submit to a physical examination after the hearing when no new relevant medical allegations were raised during the hearing itself?
3. Did the court err in considering a medical report from the V.A. Hospital which was submitted to the court four months after the record had been closed?
4. Did the court err in taking judicial notice of the medical reports contained in the file from the Workers’ Compensation Division?
Walter Hume contends that the judgment of the Workers’ Compensation Court is not supported by substantial evidence and. should be reversed. He argues that he presented a prima facie case through uncontroverted evidence that he was entitled to compensation benefits. He further argues that he proved by substantial evidence that he was injured as a result of his industrial accident, that his present condition is painful and disabling, and that said condition is a result of the accident. The defendant and the Workers’ Compensation Court recognized that claimant was entitled to compensation and medical benefits until May 25, 1977, when benefits were terminated despite the absence of evidence of any intervening cause or any alternative explanation for claimant’s present, undisputedly painful and disabling condition.
Claimant-appellant argues further that the Workers’ Compensation Judge abused his discretion by opening the record after the hearing on the merits, without requiring the defendant to show excuse or good cause. This removed any incentive for the company or carrier to prepare for trial and placed an additional burden on the claimant. Claimant alleges that he made a proper objection to any consideration of the additional post-hearing evidence.
Finally, appellant urges that the Workers’ Compensation Judge improperly took judicial notice of the entire Workers’ Compensation Division file. Even though the court advised counsel that it would grant leave to take the deposition of the author of any medical report or other document in the file if counsel found the procedure objectionable, this allegedly violated the rule in Hert v. J. J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 656, rehearing denied Mont., 587 P.2d 11, 35 St. Rep. 1353A, and thus deprived claimant of his right to cross-examine and interpose objections.
Respondent argues that the lower court did not commit error in taking judicial notice of the medical reports contained in the Workers’ Compensation Division file since Hert was decided one year after the hearing in this case. Respondent argues further that Hert held that the right to cross-examine could be waived by any party, and appellant waived his right by failing to object.
The first matter which must be addressed is whether or not the lower court erred in ordering appellant to submit to another physical examination after the October 4, 1977 hearing, and in considering the results of that examination when no new relevant medical allegations were raised during the hearing itself. Respondent contends that his request for another physical examination of the claimant was made in open court and that no objection to this procedure was raised by claimant’s attorney at that time, although he objected when an appointment was made for Dr. Dewey to examine the claimant. Therefore, respondent seeks to take advantage of the established rule that evidentiary matters must be objected to at the time of trial or they will not be considered on appeal. Hayes v. J.M.S. Construction (1978), 176 Mont. 513, 579 P.2d 1225, 1227; Sikorski v. Olin (1977), 174 Mont. 107, 568 P.2d 571, 574.
At the close of the October 4, 1977 hearing the following discussion took place:
“MR. WARDEN: Well, we may want to have this man seen by some other practitioner, Your Honor. I think I’m a little bit alarmed at Dr. Nelson’s diagnosis here, and for the man’s own welfare it might be advisable to have it doubly checked, although we attempted to do that up to this point as you can tell from the file, but we didn’t have the benefit of today’s testimony until this time.
“THE COURT: Very well, well, if that is determined necessary, if you and Mr. Moore cannot agree upon it, let me know and I’ll make the necessary order and then we’ll post it on our schedule as December the 9th as the time for Findings of Fact and Conclusions of Law.
“And if there’s nothing further, the Court is adjourned.”
Although claimant’s counsel made no objection to the additional examination at this time, he did file a formal objection and a letter memorandum in support thereof a month later on November 4, 1977. Nevertheless, the December 20, 1977 examination and report of Dr. Dewey were considered by the Workers’ Compensation Judge in his findings of fact nos. 21 and 22. To do so was not error, since claimant’s attorney, being fully apprised that the lower court intended to allow an additional examination, failed to make a timely objection. Hayes, supra.
Walter Hume was examined at the Spokane Veterans Administration Hospital during July of 1977. Some months subsequent to the October 4, 1977 hearing, copies of claimant’s Veterans Administration medical records were obtained by the defendant and forwarded to Judge Hunt, who made reference to them in his finding of fact no. 23.
Claimant had no opportunity to object to the Workers’ Compensation Court’s consideration of these medical records. This Court need not consider whether or not that procedure constituted error, however, because in his brief “[c]laimant would concede that the V.A. reports simply corroborated claimant’s testimony, that the shrapnel injury was unrelated to the condition suffered by claimant from and after the October 1975 accident.” If there was error in considering these reports, a question this Court need not decide, that error would admittedly be harmless error not affecting the substantial rights of the claimant. Rule 61, M.R.Civ.P.
The next issue is whether or not the Workers’ Compensation Judge improperly took judicial notice of the entire Workers’ Compensation Division file, including the medical reports contained therein, at the outset of the hearing. Appellant contends that contrary to the rule set forth by this Court in Hert, this procedure deprived him of his rights to cross-examine the authors of those reports and to interpose objections. We find it unnecessary to decide this question because even if we assume, without deciding, that it was proper to consider the medical reports contained in the Workers’ Compensation Division file, there still would not be substantial evidence to support the judgment of the Workers’ Compensation Court.
The determinative issue is whether or not the judgment of the Workers’ Compensation Court was supported by substantial evidence insofar as that court determined that there was no casual relationship between appellant’s industrial accident and his disability at the time of the hearing. The Court must look to all of the evidence which was properly before the Workers’ Compensation Court in determining whether or not there was substantial evidence to support its conclusion of law no. 4:
“That the claimant has failed to prove by a preponderance of the credible evidence that his present symptoms and complaints are related to the accident of October 7, 1975.”
The standard of review to be applied to this case is well established.
“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn the decision.” Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 93, 580 P.2d 450, 452-453.
See also Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099, 1106; Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67; Bond v. St. Regis Paper Co. (1977), 174 Mont. 417, 571 P.2d 372. The Workers’ Compensation Court made a conclusion of law which is not contested here, conclusion no. 2:
“That the claimant, Walter Hume, sustained injuries to his neck and upper back in an industrial accident while employed by the defendant, St. Regis Paper Company, at Libby, Montana on October 7, 1975.”
It is not seriously disputed that at the time of the hearing appellant was experiencing disabling pain and muscle spasms. Thus the issue is narrowed to the question of causation. As stated by respondent in its brief, “[t]he real question facing the Workers’ Compensation Court was whether the symptoms and complaints after his benefits were terminated in May 1977 were related to his industrial accident.”
A summary of the evidence includes claimant’s testimony that previous to the October 7, 1975 injury he experienced none of the burning pain sensation in the area of his lower neck and upper back which he has experienced to varying degrees since that time. Beginning on October 9, 1975 and continuing for about three weeks thereafter, he was seen by a Libby chiropractor and given heat treatments. Claimant testified that several months later, in February or March, 1975, he was injured in a second work-related accident when a load of lumber tipped over on him, hitting him on the shoulder. He testified that this accident aggravated the symptoms of burning pain in his neck and upper back which he had experienced in the October 7, 1975 injury. On June 12, 1976, claimant was examined by a second Libby chiropractor who diagnosed a cervical sprain with radiculitis and paresthesia to both arms. This second chiropractor treated claimant with diathermy, ultrasound, hotpacks and manipulations, and referred him to Dr. Nelson, the Kalispell neurologist who became his treating physician.
Dr. Nelson testified that he performed a neurological examination of claimant on August 3, 1976 and subsequently ordered a cervical myelogram to be performed. He diagnosed the injury as a cervical radiculitis, post traumatic. On August 12, 1976, Dr. Muller, a Kalispell radiologist, reported the results of his examination of the cervical myelogram. His report states that the myelogram revealed several small metallic foreign bodies in the soft tissues of the neck, but an otherwise normal cervical spine. These metallic fragments are the result of a shrapnel injury the claimant suffered in Vietnam. Dr. Nelson testified that on the basis of their size and location, he was of the opinion that they were not the cause of the claimant’s causalgia. Dr. Nelson referred the claimant to Dr. Vincent, a Spokane neurosurgeon for consultation. Dr. Vincent’s report of January 19, 1977 to Dr. Nelson indicates that the “myelo-gram basically is normal” and that “the problem would seem to be primarily that of muscle tightness and spasm.” At the request of defendant’s insurance director, claimant was examined by Dr. Lynch, a neurosurgeon practicing in Spokane, who reported on May 4, 1977 that claimant has a chronic cervical syndrome. Dr. Lynch’s letter to defendant’s insurance director stated:
“The entire neurological examination is normal at this time. He even shows some callousing of the hands indicating that he is keeping rather active. The muscle tone is excellent, indicating also that he is staying quite active.
“I can define no definite injury in this patient and feel tlfat his chronic pain probably is more psychogenic in origin, than due to tissue injury. The muscle tone and callousing of the hands would belie the fact that he is incapacitated.
“I feel the patient probably should try to reeducate himself outside this heavy work and I feel there is absolutely no therapy that is going to be of benefit to this patient and no further investigation is indicated.”
Dr. Nelson was the only medical witness to testify at the October 4, 1977 hearing. In finding of fact No. 17, the Workers’ Compensation Court made reference to Dr. Nelson’s testimony that “claimant’s injury was consistent with his present symptoms and disability” and to Dr. Nelson’s testimony that in his opinion, the shrapnel fragments imbedded in claimant’s neck have nothing to do with his present condition.
The Workers’ Compensation Court finding of fact no. 16 stated:
“On May 26, 1977, Dr. Nelson again examined claimant but was unable to state a precise diagnosis. He found the claimant 100 percent impaired but did not relate it to the industrial accident of October 10, [sic] 1975." (Emphasis added.)
Dr. Nelson’s testimony contradicts finding of fact no. 16.
“Q. Your first diagnosis of causalgia and brachial plexitis, do yod have an opinion within a reasonable medical certainty as to the cause of these conditions?
“A. The brachial plexitis and causalgia, yes. It was my opinion that these were related to stretch injury to his neck and shoulder girdle as related in his history given about injury occurring while at work.
“Q. How is it that you ruled out the shrapnel in making that finding?
“A. As we said, these fragments are highly discrete, very small and not located in an area that could involve that many nerves.” (Tr.,p. 11.)
“Q. Now, the brachial plexitis, what is it?
“A. Well, those nerves that come from between the vertebrae C-5, 6, 7, 8 and T — 1 are the nerve roots on both sides comprising the brachial plexus and they’re called that because they supply the shoulder girdle and the arm and hand.
“Q. And—
“A. And those nerves, the whole group of them, if they are involved in a process are called the brachial plexitis because we’re involving ourselves now with more than one nerve root on both sides of the neck, and that would take an extraordinary lesion in order to accomplish this. It is why I felt the initial evaluation of the patient that this was the result of yanking motion and it was a stretch injury which we felt was going to be a long-term, difficult problem in terms of healing.
“Q. Now, Doctor, you observed on film the shrapnel?
“A. Yes.
“Q. Where is the shrapnel located?
“A. It’s located in the paracervical muscle bundles, and the largest piece of fragment if we reduced it back to size from the film is probably about two or three millimeters in diameter, and it is about in relationship to half the size of a pea, let’s say. It is not located, in my estimation, in any region which could affect the nerve root, it’s too far away from the nerve root. (Tr., p. 10.)
“Q. Did you have cause to perform any additional examinations or do any additional diagnostic work with respect to Mr. Hume’s condition?
“A. Well, we did mostly therapy for some time. We had medication and we tried trigger point injection with Xylocaine and other medications into the pain sites to see if it would relieve the pain. It was only temporarily effective during the time of treatment. We continued to have difficulty in controlling these symptoms and as time passed, it became more apparent to me that the patient was talking about a causalgic-like pain. And I have personally examined him on several occasions where he has a burning sensation. He talks about a — and if you were to drape a towel around your neck, the zone of the neck and shoulder girdle would ache.
“Q. Is this something that you can actually visually see?
“A. Yes. You see that it is hypersensitive to touch at that point in time, and it is increased in temperature, it’s warm. We describe that as a causalgia which you will see in my reports where I have a cervical radiculitis and causalgia — simply stretch or injury to the automatic nerve fibers that are within all of the nerves, and they create these kinds of unpleasant burning and irritative type feelings and are vexing and difficult to treat. Very few things in the way of medication or treatment are effective. (Tr., p. 8-9.)
Dr. Nelson’s report of May 16, 1977, which is part of the Workers’ Compensation file, states the following:
“IMPRESSION: Cervical radiculitis and/or causalgia secondary to trauma to the neck and shoulder girdle as previously described.
“DISCUSSION: It is extremely difficult to pin down a precise diagnosis of neurologic disease since we have documentations of his having normal myelography. I have a strong suspicion that this patient may well have an inflammatory reaction going on systemically.
“It appears to me that this patient continues to have a very persistent, burning paresthesias of the cervical, thoracic, and upper shoulder girdle which defy any precise diagnosis evaluation in terms of herniated disc or demonstrable loss of muscle mass or power . . .”
On December 20, 1977, claimant was examined by Dr. Dewey, a Missoula neurosurgeon whose report stated:
“There is no injury to this man’s nervous system other than that referable to the left ulnar nerve. The symptoms are certainly not consistent with normal myelography and normal neurologic exam.”
In summary, the lower court’s crucial finding of fact no. 16 is contradicted by the testimony of Dr. Nelson, which apparently was given little or no weight. Contrary to the lower court’s findings, Dr. Nelson’s unrefuted testimony did relate Walter Hume’s impairment to the industrial accident of October 10, 1975.
An examination of the entire record reveals that the only credible substantial evidence as it concerns causation and injury supports the claimant and therefore the findings, conclusions, and judgment of the Workers’ Compensation Court are not supported by the record. In particular, there is no substantial evidence to support the lower court’s conclusion of law no. 4 that claimant failed to prove that his present symptoms and complaints are related to the industrial accident.
In conclusion of law no. 2, the Workers’ Compensation Court determined that “claimant, Walter Hume, sustained injuries to his neck and upper back in an industrial accident while employed by the defendant St. Regis Paper Company, at Libby, Montana on October 7, 1975.” It is a rebuttable presumption “[t]hat a thing once proved to exist continues as long as is usual with things of that nature.” Section 26-1-602(32), MCA. Termination of benefits by the employer on May 25, 1977 was improper in the absence of any intervening cause or any alternative explanation for claimant’s present, undisputedly painful and disabling condition.
The judgment is reversed and remanded to the Workers’ Compensation Court with instructions to enter judgment for claimant in accordance with this opinion.
MR. JUSTICES HARRISON, SHEA and SHEEHY concur.
MR. CHIEF JUSTICE HASWELL concurs in the result.
|
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] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Ronald Wayne Vaughn (Vaughn) appeals from the judgment entered by the Eighteenth Judicial District Court, Gallatin County, on his convictions and sentences for driving under the influence of alcohol (DUI), a felony, in violation of § 61-8-401, MCA, and driving with a suspended or revoked license, a misdemeanor, in violation of § 61-5-212, MCA. We affirm.
¶2 Vaughn raises the following issues on appeal:
¶3 1. Did the District Court err in denying Vaughn’s motion to suppress evidence?
¶4 2. Did the District Court abuse its discretion in denying Vaughn’s motion for a new trial based on his claim that he received ineffective assistance of counsel?
¶5 3. Did the District Court err in sentencing Vaughn as a persistent felony offender?
BACKGROUND
¶6 At approximately 1:30 a.m. on February 17,2004, Gallatin County Sheriff’s Deputy James Phillips (Phillips) was on patrol driving southbound on J ackrabbit Lane in Gallatin County, Montana, when he received information from dispatch regarding a possible intoxicated driver. According to the dispatcher, a convenience store clerk had telephoned 9-1-1 to report that an apparently intoxicated man had purchased a can of beer from the store, entered a vehicle and drove away. The clerk reported that the man was driving a silver-colored Subaru WKX with no rear license plate and was headed northbound on Jackrabbit Lane.
¶7 At about the same time he received this dispatch report, Phillips observed a silver Subaru approaching his patrol vehicle on Jackrabbit Lane. As the two vehicles passed, Phillips observed the Subaru was slowing down and pulling to the side of the highway. Phillips then observed in his rearview mirror that the Subaru had stopped and was parked straddling the fog line with half the vehicle on the shoulder of the highway and half the vehicle in the northbound lane of travel. Phillips turned his patrol vehicle around, parked approximately 25 feet behind the Subaru and activated his vehicle’s rear amber flashing lights to warn approaching drivers of the two vehicles’ location. Phillips then approached the Subaru on foot and made contact with the driver, who eventually was identified as Vaughn. The situation culminated in Phillips arresting Vaughn for DUI.
¶8 On February 25, 2004, the State of Montana (State) charged Vaughn by information with the offenses of DUI and driving with a suspended or revoked license. Based on information that Vaughn had seven prior DUI convictions, the State charged the DUI offense as a felony. On that same day, the State filed notice of its intent to seek a persistent felony offender designation based on Vaughn’s conviction for felony DUI in April of 2002. The District Court subsequently appointed William A. Bartlett (Bartlett) to represent Vaughn in the proceedings.
¶9 The defense filed several pretrial motions, including a motion to suppress evidence and a motion to strike the State’s notice of intent to seek persistent felony offender designation. In his motion to suppress, Vaughn asserted that all evidence obtained after Phillips stopped behind Vaughn’s vehicle must be suppressed because Phillips did not have sufficient particularized suspicion to conduct an investigatory stop and Phillips’ actions were not justified as a welfare check under the community caretaker doctrine. In his motion to strike the persistent felony offender notice, Vaughn argued that his 2002 DUI conviction could not be used as a predicate felony conviction for purposes of a persistent felony offender designation because the DUI sentencing statute in effect at that time did not authorize imposition of a term of imprisonment in excess of one year. The District Court held an evidentiary hearing and subsequently denied Vaughn’s motions to suppress and to strike the persistent felony offender notice. ¶10 The case proceeded to a jury trial. On the morning of trial, Vaughn pled guilty to the misdemeanor driving with a suspended or revoked license charge. The jury later found Vaughn guilty of the DUI charge. The District Court scheduled a sentencing hearing and ordered preparation of a presentence investigation report.
¶11 Vaughn subsequently began sending the District Court letters on his own behalf raising several concerns regarding the conduct of the trial and Bartlett’s actions in representing him. As a result, Bartlett moved for-and the District Court granted-leave to withdraw as Vaughn’s counsel. Vaughn then filed a motion for a new trial, asserting in part that he received ineffective assistance of counsel during both the pretrial and trial phases of the proceedings. The District Court eventually appointed Jack H. Morris to represent Vaughn in the post-trial proceedings and scheduled an evidentiary hearing on Vaughn’s motion for a new trial. After the hearing, the District Court denied Vaughn’s motion.
¶12 The District Court then held a sentencing hearing and sentenced Vaughn as a persistent felony offender to a 50-year term at the Montana State Prison and a concurrent 6-month term in the Gallatin County Detention Center for the offense of driving with a suspended or revoked license. Vaughn appeals his convictions and sentences.
DISCUSSION
¶13 1. Did the District Court err in denying Vaughn’s motion to suppress evidence?
¶14 Vaughn moved the District Court to suppress all evidence obtained after Phillips stopped behind Vaughn’s vehicle because Phillips did not have sufficient particularized suspicion to conduct an investigatory stop and no other justification existed for the stop. The State responded, in part, by arguing that Phillips’ conduct in approaching Vaughn’s vehicle was justified as a welfare check under the community caretaker doctrine, which then ripened into a DUI investigation. The District Court held an evidentiary hearing on the motion to suppress at which Phillips was the only witness to testify. Following the hearing, the District Court entered its findings of fact, conclusions of law and order denying the motion to suppress. Vaughn asserts error.
¶15 We review a district court’s ruling on a criminal defendant’s motion to suppress evidence to determine whether the court’s findings of fact are clearly erroneous and whether the court correctly applied those findings as a matter of law. State v. Wheeler, 2006 MT 38, ¶ 12, 331 Mont. 179, ¶ 12, 134 P.3d 38, ¶ 12. “A court’s findings of fact are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed.” Wheeler, ¶ 12.
¶16 In its order denying Vaughn’s motion to suppress, the District Court made findings of fact based on Phillips’ testimony. Specifically, the court found that at approximately 1:30 a.m. on February 17,2004, Phillips was on patrol traveling southbound on Jackrabbit Lane when he received a report from dispatch regarding a possible drunk driver. The report indicated the alleged drunk driver was traveling northbound on Jackrabbit Lane in a Subaru WEX. As Phillips was receiving this dispatch report, he observed a silver Subaru traveling toward him, but was unable to determine whether the vehicle was the same vehicle as described in the report. As the Subaru passed Phillips’ patrol vehicle, Phillips observed the Subaru begin to pull over to the side of the highway. Phillips then observed in his rearview mirror that the Subaru had stopped on the side of the highway, with half the vehicle on the shoulder of the highway and half still in the northbound lane of travel. Phillips believed the driver of the vehicle might be in need of assistance. Consequently, Phillips turned his patrol car around, parked behind the Subaru, approached the vehicle on foot, identified himself as a peace officer and inquired as to the driver’s welfare.
¶ 17 The only challenge Vaughn raises regarding this initial portion of the District Court’s findings of fact is his contention that the court’s finding that Phillips observed the Subaru stop on the highway half on the shoulder and half in the lane of travel is clearly erroneous. In support of this contention, Vaughn asserts that, had he testified at the suppression hearing, he would have stated that he had pulled his vehicle completely off the highway when he stopped and no portion of his vehicle was in the lane of travel. The obvious-and fatal-flaw in this argument is that Vaughn did not testify at the suppression hearing. As a result, the only evidence before the District Court was Phillips’ testimony that the Subaru was half on the shoulder of the highway and half in the lane of travel. Thus, the District Court’s finding of fact in this regard is supported by substantial credible evidence of record and is not otherwise clearly erroneous. See Wheeler, ¶ 12.
¶18 Based on the above stated findings, the District Court concluded that Phillips’ conduct in stopping behind and approaching the Subaru was justified as a welfare check under the community caretaker doctrine. We first adopted the community caretaker doctrine in State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471. In that case, we observed that “[n]ot all contact between police officers and citizens involves the ‘seizure’ of a person under the Fourth Amendment,” and certain police-citizen encounters simply are a result of law enforcement’s public safety-or “community caretaker’-function. Lovegren, ¶¶ 13 and 16. We then adopted a three-part test which must be applied in analyzing a stop under the community caretaker function as follows:
First, as long as there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stop and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions.
Lovegren, ¶ 25.
¶19 With regard to Phillips’ initial stop behind and approach of the Subaru, the District Court concluded that, based on Phillips’ concern about whether the driver of the vehicle might need assistance and the location of the Subaru being a potential hazard to the driver and other motorists, “Phillips was justified and obligated to stop and mitigate the danger to any occupants of the stopped vehicle or other motorists traveling on Jackrabbit Lane.” In other words, the District Court determined that Phillips had objective, specific and articulable facts from which to infer that a citizen might be in need of help and which justified his initial stop under the first prong of the Lovegren community caretaker test. Vaughn does not challenge the District Court’s conclusion in this regard. Furthermore, the second prong of the Lovegren test is not applicable here because Vaughn was not in need of assistance and no “peril” required mitigation, given the circumstances and our discussion below.
¶20 With regard to the third prong of the Lovegren test, the District Court made additional findings of fact based on Phillips’ testimony and the audiotape of the encounter recorded by Phillips’ body wire. It found that, when Phillips arrived at the passenger side of the Subaru, the driver-later identified as Vaughn-immediately stated that he had stopped to change a compact disc in the stereo and inquired if that was the reason Phillips had stopped. Phillips responded that he had stopped to make sure Vaughn was all right.
¶21 Vaughn contends that, once he informed Phillips he was not in need of assistance, the scope of the community caretaker stop ended. Thus, according to Vaughn, under the third prong of the Lovegren test, Phillips’ request for Vaughn’s driver’s license, proof of insurance and vehicle registration, as well as his subsequent request that Vaughn perform field sobriety tests, constituted a seizure under the United States and Montana Constitutions. Vaughn further argues on this basis that, because Phillips had no other justification for the stop, this seizure was unlawful and requires suppression of all evidence gathered thereafter. We disagree.
¶22 We recognized in Lovegren that, where a law enforcement officer’s initial contact with a citizen is justified under the community caretaker doctrine, additional observations made by that officer during the encounter may result in a particularized suspicion of wrongdoing, thus escalating the encounter into an investigation of a possible offense such as DUI. Lovegren, ¶ 27; see also Wheeler, ¶ 26; State v. Litschauer, 2005 MT 331, ¶ 10, 330 Mont. 22, ¶ 10, 126 P.3d 456, ¶ 10; State v. Seaman, 2005 MT 307, ¶ 30, 329 Mont. 429, ¶ 30, 124 P.3d 1137, ¶ 30; State v. Nelson, 2004 MT 13, ¶ 9, 319 Mont. 250, ¶ 9, 84 P.3d 25, ¶ 9. It is well-established that particularized suspicion justifying such further investigation must be supported by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant a law enforcement officer’s belief that an offense is being or has been committed. See, e.g., State v. Reiner, 2003 MT 243, ¶ 15, 317 Mont. 304, ¶ 15, 77 P.3d 210, ¶ 15.
¶23 Phillips testified at the suppression hearing that, as he approached Vaughn’s vehicle on foot, he looked through the window and observed an opened can of beer sitting between the two front seats. Phillips further testified that, while he informed Vaughn why he approached the Subaru and Vaughn responded, Phillips observed that Vaughn’s speech was slurred and his eyes were bloodshot and watery. Phillips testified that, at that point, he was concerned that he might be dealing with an intoxicated driver. We conclude, as did the District Court, that Phillips’ observations as he approached the Subaru and made initial contact with Vaughn were sufficient to establish a particularized suspicion that Vaughn may have been DUI, thus justifying a further investigation once the purpose of the initial stop had been accomplished.
¶24 We conclude that Vaughn has failed to establish that the District Court’s findings of fact were erroneous or that the court incorrectly applied its findings as a matter of law. We hold, therefore, that the District Court did not err in denying Vaughn’s motion to suppress evidence.
¶25 2. Did the District Court abuse its discretion in denying Vaughn’s motion for a new trial based on his claim that he received ineffective assistance of counsel?
¶26 Following the jury trial in this case, Bartlett moved for-and the District Court granted-leave to withdraw as Vaughn’s counsel. Vaughn then moved the District Court for a new trial, contending Bartlett rendered ineffective assistance of counsel during the pretrial and trial phases of the proceedings. Vaughn asserted Bartlett was ineffective by failing to adequately investigate the case and interview witnesses-namely, Phillips and the tow truck driver who was called by law enforcement to remove Vaughn’s vehicle from the scene after his arrest-prior to the suppression hearing. Additionally, Vaughn asserted Bartlett was ineffective by failing to call the tow truck driver, Vaughn, and Vaughn’s father as witnesses at the suppression hearing and at trial.
¶27 The District Court held an evidentiary hearing on Vaughn’s motion for a new trial at which Bartlett, Vaughn, Vaughn’s father and an investigator retained by Vaughn post-trial, all testified. Based on the testimony presented, the District Court entered its findings of fact, conclusions of law and order determining that Vaughn had failed to establish Bartlett’s performance was deficient in any of the asserted respects and denying Vaughn’s motion for a new trial on that basis. Vaughn asserts error.
¶28 We review a district court’s denial of a criminal defendant’s motion for a new trial to determine whether the court abused its discretion. State v. Trull, 2006 MT 119, ¶ 8, 332 Mont. 233, ¶ 8, 136 P.3d 551, ¶ 8. However, Vaughn’s underlying claim of ineffective assistance of counsel presents a mixed question of law and fact which we review de novo. Trull, ¶ 9. Furthermore, notwithstanding our de novo review of an ineffective assistance of counsel claim, we still give deference to a district court’s determination of witness credibility as the trier of fact at an evidentiary hearing on such a claim. Hendricks v. State, 2006 MT 22, ¶ 16, 331 Mont. 47, ¶ 16, 128 P.3d 1017, ¶ 16. ¶29 A defendant claiming ineffective assistance of counsel is first required to establish that counsel’s performance was deficient. Swan v. State, 2006 MT 39, ¶ 16, 331 Mont. 188, ¶ 16, 130 P.3d 606, ¶ 16. “Judicial scrutiny of counsel’s performance must be highly deferential and courts must indulge a strong presumption that counsel’s actions regarding defense strategies fall within the wide range of reasonable and sound professional assistance.” State v. Thee, 2001 MT 294, ¶ 8, 307 Mont. 450, ¶ 8, 37 P.3d 741, ¶ 8 (citing Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 2064-65 (1984)). A defendant seeking to establish that counsel’s performance was deficient must show that counsel’s challenged actions stemmed from ignorance or neglect, rather than from professional deliberation. Thee, ¶ 8 (citation omitted). Thus, courts give counsel’s strategic decisions great deference and such strategic decisions cannot form the basis upon which to find ineffective assistance of counsel. Thee, ¶ 8 (citation omitted).
¶30 Moreover, if deficient performance is established, the defendant must establish that the deficient performance prejudiced the defendant. See Swan, ¶ 16; Thee, ¶ 9. Both the deficient performance and prejudice prongs of the ineffective assistance of counsel test must be met and a court is not required to address both prongs where a defendant makes an insufficient showing on one. Swan, ¶ 16.
¶31 Vaughn first argues that Bartlett rendered ineffective assistance of counsel by failing to interview the arresting officer, Phillips, prior to either the hearing on the motion to suppress or the trial. We have held that defense counsel has a duty to investigate and interview witnesses who may have knowledge of the case, and counsel’s complete failure to do so constitutes deficient performance. State v. Denny, 262 Mont. 248, 253, 865 P.2d 226, 229 (1993). That is not to say, however, that every failure to interview a witness constitutes deficient performance. As stated above, a defendant must show that counsel's challenged actions stemmed from ignorance or neglect, rather than from professional deliberation. Thee, ¶ 8. Defense counsel has a duty to either conduct reasonable investigations or make a reasonable decision that particular investigations are unnecessary, and we evaluate counsel’s decision not to investigate for reasonableness in light of all the circumstances of the case, applying great deference to counsel’s judgments. State v. Thomas, 285 Mont. 112, 119, 946 P.2d 140, 144 (1997) (citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066); Weaver v. State, 2005 MT 158, ¶ 17, 327 Mont. 441, ¶ 17, 114 P.3d 1039, ¶ 17. Furthermore, while a defendant’s claim that defense counsel failed to interview a witness may sound impressive in theory, such a claim cannot establish ineffective assistance when the witness’s account of the circumstances otherwise is fairly known to counsel. Thomas, 285 Mont. at 119, 946 P.2d at 144 (citing United States v. Decoster, 624 F.2d 196, 209 (D.C. Cir. 1976)); Weaver, ¶ 16.
¶32 At the hearing on Vaughn’s motion for a new trial, Bartlett testified that he reviewed Phillips’ written report regarding the stop and arrest, and listened to the audiotape of the encounter recorded by Phillips’ body wire, prior to the suppression hearing. Bartlett further testified that he believed the audiotape constituted the best evidence of the events because it was a live recording of the statements made by both Vaughn and Phillips during the encounter. Bartlett determined that, between the written report and the audiotape, he had “a pretty good idea” of what Phillips’ testimony would be at the suppression hearing and was prepared with a strategy for challenging Phillips’ stop as not justified under the community caretaker doctrine or any other theory. Thus, Bartlett made a deliberate decision not to interview Phillips and the absence of an interview was not a result of ignorance or neglect. Bartlett investigated Phillips’ written report and the audiotape, and then determined under the circumstances that further investigation via an interview was unnecessary. In light of the great deference given defense counsel’s judgment on these matters, we conclude Bartlett’s decision not to interview Phillips was reasonable. As a result, we further conclude that Vaughn has not established that Bartlett’s failure to personally interview Phillips constituted deficient performance.
¶33 Vaughn also argues that Bartlett rendered ineffective assistance of counsel by failing to locate the tow truck driver and call him as a witness at the suppression hearing. Vaughn asserts that the tow truck driver’s testimony was highly important because the driver could have contradicted Phillips’ testimony that Vaughn’s vehicle was stopped halfway in the highway’s lane of travel, thus providing support for Vaughn’s theory that the welfare check was unnecessary. At the hearing on Vaughn’s motion for a new trial, Bartlett testified that his paralegal attempted to contact the tow truck driver on at least four occasions to interview him regarding his recollection of the location of Vaughn’s vehicle in reference to the highway, but was unable to do so. We will not determine that trial counsel’s performance is deficient where he or she makes a reasonable effort to locate a witness, but is unable to do so. Williams v. State, 2002 MT 189, ¶ 18, 311 Mont. 108, ¶ 18, 53 P.3d 864, ¶ 18. Here, Bartlett-via his paralegal-made reasonable efforts to contact the tow truck driver and ascertain whether the driver’s recollection would-or would not-contradict Phillips’ testimony. We conclude that Bartlett’s failure to locate the potential witness did not constitute deficient performance.
¶34 Vaughn next contends that Bartlett provided ineffective assistance of counsel by failing to call Vaughn’s father to testify at the suppression hearing. Vaughn’s father testified at the hearing on Vaughn’s motion for a new trial that Vaughn called him on a cell phone after Vaughn had stopped and told him that he was pulled over on the side of the road. Vaughn asserts that Bartlett should have called his father as a witness at the suppression hearing to testify to this conversation and provide evidence contradicting Phillips’ testimony that Vaughn was stopped halfway in the highway lane of travel.
¶35 In this regard, it is critical to note other testimony at the hearing on Vaughn’s motion. Vaughn’s father testified on cross-examination that he did not personally observe the location of Vaughn’s vehicle on the road and knew only what Vaughn had told him. Bartlett testified at the hearing on the motion for a new trial that, although Vaughn had informed him of this telephone conversation with his father, Bartlett determined the father’s testimony would be hearsay and, therefore, inadmissible. The District Court agreed with Bartlett that the testimony would have been inadmissible hearsay.
¶36 Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M. R. Evid. 801(c). Thus, any testimony from Vaughn’s father regarding Vaughn’s statement to him that Vaughn had pulled his vehicle completely off the highway, offered to prove the truth of where Vaughn’s vehicle was located, would be hearsay. Hearsay generally is not admissible. M. R. Evid. 802. Moreover, trial counsel is not ineffective in failing to offer inadmissible evidence or testimony. See State v. Hildreth, 267 Mont. 423, 432, 884 P.2d 771, 777 (1994). We conclude that Bartlett’s failure to call Vaughn’s father to testify regarding the cell phone call did not constitute deficient performance.
¶37 Vaughn also argues that Bartlett’s failure to call Vaughn himself to testify at either the suppression hearing or the trial constituted ineffective assistance of counsel. Vaughn testified at the hearing on his motion for a new trial that he wished to testify at the suppression hearing and trial in order to present his version of the events that transpired during the stop which led to his arrest. Contrary to Vaughn’s testimony, Bartlett testified that, in his pretrial discussions with Vaughn, Vaughn was adamant that he did not want to testify at either the suppression hearing or trial.
¶38 In its findings of fact, conclusions of law and order denying Vaughn’s motion for a new trial, the District Court found that ‘Vaughn advised Bartlett that he did not want to be a witness and did not want to testify at the pretrial hearing.” This finding is supported by substantial evidence. Furthermore, the District Court having heard testimony from-and observed the demeanor of-both Vaughn and Bartlett, implicitly determined Bartlett was more credible. As stated above, we give deference to a district court’s determination of witness credibility as the trier of fact at an evidentiary hearing on an ineffective assistance of counsel claim. Hendricks, ¶ 16. We conclude, therefore, that Bartlett’s performance was not deficient in failing to call Vaughn to testify.
¶39 Finally, Vaughn contends that Bartlett rendered ineffective assistance of counsel because he “did no independent investigation of the scene of the stop, and made no attempt to establish facts as to whether or not Vaughn’s vehicle was blocking traffic.” Bartlett testified at the hearing on Vaughn’s motion for a new trial that he met with Vaughn several times to discuss the case and obtain Vaughn’s version of what occurred on the night of his arrest, and followed up on those conversations. During the meetings Vaughn told Bartlett that, when he pulled off the highway that night, he had pulled his vehicle completely off the highway and, indeed, had turned off onto a gravel road. Following his discussions with Vaughn, Bartlett went to the area where the stop occurred to investigate the location and verify Vaughn’s description of where his vehicle was when Phillips approached it. Bartlett photographed the area, but could not find the gravel road which Vaughn had described to him. Additionally, Bartlett reviewed Phillips’ written report regarding the stop and the audiotape recorded by Phillips’ body wire. Bartlett also attempted several times to contact the tow truck driver to verify the location of Vaughn’s vehicle on the night in question, although he ultimately was unable to do so. Thus, contrary to Vaughn’s assertion that Bartlett “did no independent investigation of the scene of the stop, and made no attempt to establish facts ...,” Bartlett did conduct an independent investigation into the facts of the case. We conclude that Vaughn has failed to establish that Bartlett’s performance was deficient in this respect.
¶40 We conclude Vaughn has failed to establish that Bartlett’s performance was deficient with regard to any of Vaughn’s asserted claims. As stated above, a defendant claiming ineffective assistance of counsel must establish both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant. Swan, ¶ 16. Because Vaughn has failed to establish the deficient performance prong of the ineffective assistance of counsel test, we need not address the prejudice prong. Swan, ¶ 16. We further conclude, therefore, that Vaughn has failed to establish that Bartlett rendered ineffective assistance of counsel.
¶41 We hold that the District Court did not abuse its discretion in denying Vaughn’s motion for a new trial based on claims of ineffective assistance of counsel.
¶42 3. Did the District Court err in sentencing Vaughn as a persistent felony offender?
¶43 Vaughn presents three arguments in support of his contention that the District Court erred in sentencing him pursuant to the persistent felony offender provisions found in §§ 46-18-501 and -502, MCA. First, Vaughn relies on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), in asserting the District Court made findings of fact in support of its sentence which violated his right to trial by jury. Second, Vaughn asserts that, due to a conflict between two sentencing statutes, the court could only sentence him to a maximum term of five years, all of which must be suspended. Third, Vaughn asserts that using a prior DUI conviction both to enhance his current DUI offense to a felony and to support a persistent felony offender designation constitutes double jeopardy.
¶44 The State initially contends that we should not address Vaughn’s sentence-related arguments because he failed to raise them in the District Court. We generally will not address arguments and new legal theories raised for the first time on appeal, because it is unfair to fault a trial court for failing to rule correctly on an issue which it was never given the opportunity to address. State v. Mallak, 2005 MT 49, ¶ 31, 326 Mont. 165, ¶ 31, 109 P.3d 209, ¶ 31.
¶45 In his pretrial motion to strike the State’s notice of intent to seek persistent felony offender designation, Vaughn’s only argument was that neither his 2002 DUI conviction nor his current DUI offense could be considered felonies for purposes of the persistent felony offender statutes because the sentencing statute for fourth or subsequent DUI convictions in effect at the time he committed the two offenses did not authorize imposition of a term of imprisonment in excess of one year. The District Court rejected Vaughn’s argument in this regard and denied his motion to strike. Vaughn does not challenge the District Court’s denial of his motion to strike.
¶46 The only other action Vaughn took regarding the persistent felony offender designation and sentence in the underlying proceeding was to read aloud a written statement at the sentencing hearing in which he generally asserted that his persistent felony offender status must be determined by a jury and that the State’s sentencing recommendation was disproportionate to sentences received by other defendants. Vaughn’s statement did not challenge the persistent felony offender statutes as being in conflict with the DUI sentencing statutes or in violation of his constitutional right not to be placed in double jeopardy. Thus, we conclude that Vaughn’s second and third arguments in support of his contention that the District Court erred in sentencing him as a persistent felony offender were not raised in the trial court and we decline to address them.
¶47 We conclude, however, that although Vaughn’s written statement did not cite Blakely as authority, he did generally assert that his status as a persistent felony offender must be determined by a jury. Consequently, his first argument was sufficiently preserved for consideration of the issue on appeal.
¶48 Vaughn relies on Blakely for the proposition that factual findings which serve to enhance a defendant’s sentence beyond the prescribed statutory maximum for the offense must be determined by a jury beyond a reasonable doubt. Blakely, 542 U.S. at 301, 124 S.Ct. at 2536 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000)). Vaughn then asserts that the District Court’s imposition of a sentence of 50 years as a persistent felony offender under § 46-18-502, MCA, served to enhance his sentence beyond the statutory maximum of a 13-month commitment to the Department of Corrections followed by a suspended sentence of up to 5 years authorized for the felony DUI offense under § 61-8-731, MCA. Thus, according to Vaughn, his sentence as a persistent felony offender should have been determined by a jury.
¶49 We first observe that the United States Supreme Court’s full statement in this regard was that ‘“[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Blakely, 542 U.S. at 301, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63) (emphasis added). Section 46-18-501, MCA, provides as follows:
A “persistent felony offender” is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if:
(1) the previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed;
(2) less than 5 years have elapsed between the commission of the present offense and either:
(a) the previous felony conviction; or
(b) the offender’s release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction; and
(3) the offender has not been pardoned on the ground of innocence and the conviction has not been set aside in a postconviction hearing.
¶50 Pursuant to the statute, the operative facts pursuant to which a defendant may be found to be a persistent felony offender are that the defendant was convicted of or released from commitment for a previous felony offense-which has not been set aside or pardoned-within five years of when the defendant committed the felony offense for which he or she currently is being sentenced. In other words, it is the fact of the defendant’s prior felony conviction which authorizes an enhanced sentence under Montana’s persistent felony offender statutes. Here, the District Court enhanced Vaughn’s felony DUI sentence under the persistent felony offender statutes based on its finding that Vaughn had a prior felony DUI conviction in April of 2002. Under the Supreme Court’s above-quoted statements in Blakely and Apprendi, this factual determination properly may be made by the sentencing court, rather than a jury. Indeed, Vaughn does not challenge the District Court’s finding in this regard on appeal.
¶51 Rather, Vaughn challenges the facts found by the District Court in its oral and written statements outlining the court’s reasons for imposing the 50-year sentence, which included Vaughn’s extensive criminal history going back nearly 21 years, including multiple DUI and felony convictions; his repeated failure to remain law-abiding when released on community supervision; his long history of chemical dependency and his lack of success in rehabilitative efforts; his lack of motivation to change his behavior; and the need to protect society from his repetitive criminal behavior. In that regard, the Supreme Court in Apprendi discussed the distinction between factual findings which increase the potential punishment of a defendant beyond the statutory maximum for the offense-which generally must be determined by a jury beyond a reasonable doubt-and factual findings which are “sentencing factors” properly determined by the sentencing court. The Supreme Court noted that the term “sentencing factor” describes those aggravating or mitigating circumstances that support imposition of a sentence within the range authorized for the offense. Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365 n. 19.
¶52 Here, Vaughn does not dispute that the District Court properly found that his 2002 felony DUI conviction rendered him a persistent felony offender pursuant to § 46-18-501, MCA, thus subjecting Vaughn to an enhanced sentence for his felony DUI conviction. Pursuant to § 46-18-502(1), MCA, Vaughn was then subject to a term of imprisonment of not less than 5 years or more than 100 years. The District Court’s ultimate sentence of 50 years in the Montana State Prison was within the prescribed statutory maximum sentence. The District Court’s stated findings regarding Vaughn’s criminal history-multiple prior convictions, failure to comply with community supervision, long history of chemical dependency, lack of motivation to change his behavior and the need to protect society from his repetitive criminal behavior-provided the court’s reasoning for imposing the 50-year prison term and were appropriately considered by the court as sentencing factors.
¶53 We conclude that Vaughn’s right to trial by jury was not violated by the District Court’s findings of fact in support of its sentencing Vaughn to a 50-year term in the Montana State Prison. As a result, we hold that the District Court did not err in sentencing Vaughn as a persistent felony offender.
¶54 Affirmed.
JUSTICES LEAPHART, COTTER, NELSON and WARNER concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 The Mary J. Baker Revocable Trust and Linda J. Eklund (individually referred to as “Baker Trust” and “Eklund,” respectively, and collectively referred to as “the Landowners”) appeal the judgment of the District Court for the Fourteenth Judicial District, Wheatland County, denying the Landowners’ motion for partial summary judgment and motion for class certification and granting the motion for summary judgment filed by Cenex Harvest States Cooperatives, Inc., and Front Range Pipeline, L.L.C. (collectively referred to as “Cenex”). We affirm.
ISSUES
¶2 The Landowners provide the following “STATEMENT OF ISSUES PRESENTED FOR REVIEW” at the outset of their opening brief:
1. Whether the district court erred in granting AppelleeDefendants’ Motion for Summary Judgment?
2. Whether the district court erred in denying Appellants-Plaintiffs’ Motion for Summary Judgment?
3. Whether the district court erred in ignoring and refusing to apply § 1-4-102, MCA, in interpreting the granting language in the easements at issue?
4. Whether the district court erred in ignoring the principle that an instrument should be construed against the drafter and refusing to apply precedent established in a strikingly similar case in Mississippi?
The argument section of the Landowners’ brief, however, does not conform to this statement of the issues. Rather, the Landowners’ two issue headings are as follows:
A. The District Court Failed to Consider the Circumstances Surrounding the Procurement of the Easements in Violation of§ 1-4-102, MCA. The District Court Also Failed to Interpret the Easement Granting Language in the Light Most Favorable to the Landowners.
B. In the Alternative, the Easement Granting Language is Ambiguous, Thereby Requiring Consideration of the Surrounding Circumstances. The Landowners’ XJnrefuted Summary Judgment Evidence Supports the Entry of Summary Judgment in Their Favor or, in the Further Alternative, Consideration by a Jury.
The Landowners’ “alternative” arguments under Issue “B” do not appear in their opening statement of the issues presented for review. Furthermore, within the discussion under Issue “A” the Landowners present an argument that does not match any of their issue statements-namely, that the District Court erred in construing a term in the easement granting language contrary to the dictionary definition of that term.
¶3 Given this disconnect between the issues as articulated at the outset of the Landowners’ opening brief and the issues as articulated and argued in the argument section of the brief, this Court is in the position of having to divine precisely what issues the Landowners are presenting to this Court. The Rules of Appellate Procedure, however, place the responsibility of matching arguments with issue statements on the Landowners, not this Court. See M. R. App. P. 23(a)(2) (requiring an appellant’s brief to contain “[a] statement of the issues presented for review”); M. R. App. P. 23(a)(4) (requiring the argument section of the brief to contain the contentions of the appellant “with respect to the issues presented”). Accordingly, we will address the merits of the Landowners’ actual arguments without regard to their uncoordinated issue statements.
¶4 In their first argument, the Landowners agree with the District Court that the language of the right-of-way agreements by which the Landowners granted easements across their properties to Cenex is unambiguous, but they disagree with the court’s conclusion that Cenex has not exceeded the scope of those easements as defined in the right-of-way agreements. The Landowners contend (1) that the District Court erroneously construed the term “together with” as that term is used in the granting language; (2) that the District Court erred by failing to interpret the granting language in the light most favorable to the Landowners; and (3) that the District Court erred by refusing to consider the circumstances under which the easements were granted. As an alternative argument, the Landowners contend that the granting language is ambiguous, thus (1) requiring consideration of the circumstances under which the easements were granted or (2) creating a genuine issue of material fact and thereby precluding summary judgment for either party.
¶5 Accordingly, having studied the Landowners’ arguments, we perceive the following five issues on this appeal:
1. Did the District Court erroneously construe the term “together with” as that term is used in the unambiguous granting language?
2. Did the District Court err by failing to interpret the unambiguous granting language in the light most favorable to the Landowners?
3. Did the District Court err by refusing to consider the circumstances under which the easements were granted?
4. Did the District Court err in determining that the granting language is unambiguous?
5. Did the District Court err in determining that there is no genuine issue as to any material fact?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 The Front Range Pipeline is a system of crude oil pipelines that extends approximately 320 miles from the United States/Canadian border to Laurel, Montana, by way of Santa Rita, Montana. The stretch from Santa Rita to Laurel consists of one 16-inch pipeline and a 36-strand fiber optic cable. For most of this distance, the fiber optic cable is buried in the same trench as the pipeline. The dispute in this case concerns Cenex’s use of the fiber optic cable.
¶7 Cenex began acquiring easements for the pipeline and cable in 1994. This process continued into 1996 and involved approximately 450 parcels of land on the route between Santa Rita and Laurel. Cenex entered into a right-of-way agreement with Eklund on November 12, 1994, and with Baker Trust on February 13, 1995. Both agreements, which had been prepared by Cenex, contained the following granting language:
[Grantors] do hereby grant, sell and convey unto [Cenex] ... its successors and assigns, hereinafter referred to as Grantee, the right to construct, maintain, inspect, operate, protect, repair, replace, change the size of or remove a pipeline or pipelines or other appurtenances, for the transportation of oil, liquids and/or gases and the products thereof, together with a buried fiber optic communications cable, in, on, under or upon and along a strip of land Fifty Feet (50 ft.) in width to be selected by Grantee on, in, over and through the following described lands ....
The agreements further provided that “[t]he rights herein granted may be assigned in whole or in part” and that “[t]he terms, conditions and provisions of this agreement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto.”
¶8 During this same period, Cenex and TRI Touch America, Inc. (“TRI”) negotiated a Fiber Optic Agreement. Pursuant to this agreement (dated June 26,1995), TRI agreed to install the fiber optic cable in the trench opened by Cenex for the pipeline and to maintain the cable, but the agreement specified that Cenex would own the cable. For its part, Cenex granted TRI an exclusive, indefeasible right to use 32 strands of the cable for an initial term of 25 years. The four remaining strands were specifically dedicated to the exclusive use of Cenex for the transmission of data, voice, and video communication along the pipeline.
¶9 Ultimately, the pipeline project was completed in late 1995, and the fiber optic cable became operational in mid 1996. Cenex assigned its rights, title, and interest in the pipeline and fiber optic cable to Front Range Pipeline, L.L.C., in September 1999.
¶10 The Landowners initiated the instant action on March 21, 2003. In essence, they alleged as follows: that the right-of-way agreements permitted Cenex to use the fiber optic cable only for purposes of operating and monitoring the pipeline; that Cenex had exceeded the scope of the easements by using and allowing a third party to use the cable for purposes other than operating and monitoring the pipeline; that Cenex had done so without the Landowners’ authorization and without compensating the Landowners; that Cenex, thus, had surreptitiously created a valuable revenue-producing corporate asset; that Cenex had retained the revenues and profits generated by this asset; and that these wrongful acts and omissions amounted to an unlawful scheme to convert money derived from the trespass upon the Landowners’ properties. The Landowners claimed breach of contract, trespass, conversion, breach of the implied covenant of good faith and fair dealing, civil conspiracy, and unjust enrichment, and they requested certification under M. R. Civ. P. 23 as a class consisting of “[a]ll persons and entities who own land over which fiber optic cable has been strung or laid in the Cenex Front Range Pipeline right-of-way.”
¶11 Cenex filed an answer denying the allegations concerning the scope of the easements and the allegations of wrongdoing. Thereafter, the parties filed cross-motions for summary judgment.
¶12 The Landowners, in their summary judgment motion, asserted that the granting language in the right-of-way agreements “is crystal clear in its scope.” Focusing on the words “together with,” they argued that this term means “in union with” and that “[authority to bury a fiber optic cable ‘in union with’ the pipeline clearly suggests its use is limited to operating and monitoring the Pipeline.” They also set forth a number of “circumstances under which the Easements were obtained” as support for their interpretation of “together with,” citing § 1-4-102, MCA, as authority for the District Court to consider these circumstances. One such “circumstance” was that Cenex allegedly had obtained the easements by threatening to condemn the Landowners’ properties pursuant to § 69-13-103(1), MCA. Finally, the Landowners argued that use of the fiber optic cable by parties other than Cenex “clearly creates added physical and legal burdens” on the Landowners’ properties. They provided a number of examples of such burdens-e.g., “[i]f there is a break in the line . . . multiple companies’ repair crews must physically enter the land to replace and/or repair the cable,” and “by going beyond the scope and intent of the Easement granting language, Cenex has saddled the land with a significant, additional legal burden - a potential cloud on their titles.”
¶13 In its summary judgment motion, Cenex agreed that the granting language is “clear and unambiguous”; however, contrary to the Landowners’ interpretation, Cenex argued that the language “placets] no limits on how the fiber optic cable may be used” and “expressly give[s] Cenex the right to assign any of its rights, in whole or in part, to any third party.” According to Cenex, therefore, it did not breach the right-of-way agreements by using or allowing the use of the cable for purposes other than operating or monitoring the pipeline, and all of the Landowners’ claims, which were predicated on the same alleged violation of the terms of the right-of-way agreements, should be dismissed accordingly.
¶14 The District Court agreed with Cenex. First, the court noted that the Landowners were not challenging the validity of the right-of-way agreements. Second, the court determined that the granting language in the agreements is unambiguous. Third, the court read the granting language as placing no limitations upon the use of the fiber optic cable. In so doing, the court rejected the Landowners’ “grammatical gymnastics,” concluding that that the term “together with” means “and” in the context of the granting language.
¶15 With respect to the Landowners’ reliance on § 1-4-102, MCA, the court stated that since the granting language was not ambiguous, the court could not consider the circumstances under which the right-of-way agreements had been made. The court also refused to construe the right-of-way agreements by reference to § 69-13-103(1), MCA, reasoning that this statute had no application here because the easements had been obtained by voluntary agreements, not condemnation. Lastly, the court concluded that the language of the right-of-way agreements gave Cenex authority to assign its rights thereunder.
¶16 Based on this analysis, the District Court dismissed all of the Landowners’ claims, noting that each claim was predicated on Cenex’s using the fiber optic cable for purposes other than operating and monitoring the pipeline and Cenex’s assigning a portion of the easements to TRI, both of which the court had determined were not wrongful acts. The court also denied the Landowners’ motion for class certification as moot. This appeal followed.
STANDARD OF REVIEW
¶17 We review a district court’s ruling on a motion for summary judgment de novo, applying the same criteria of M. R. Civ. P. 56 as did the district court. Redies v. Attorneys Liability Protection Soc., 2007 MT 9, ¶ 26, 335 Mont. 233, ¶ 26, 150 P.3d 930, ¶ 26; Montana-Dakota Utilities Co. v. City of Billings, 2003 MT 332, ¶ 6, 318 Mont. 407, ¶ 6, 80 P.3d 1247, ¶ 6. Rule 56(c) provides that a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party, and all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of the party opposing summary judgment. Redies, ¶ 26; Porter v. Galarneau, 275 Mont. 174, 179, 911 P.2d 1143, 1146 (1996). Summary judgment is an extreme remedy that should never be a substitute for a trial on the merits if a controversy exists over a material fact. In re Dorothy W. Stevens Revocable Trust, 2005 MT 106, ¶ 13, 327 Mont. 39, ¶ 13, 112 P.3d 972, ¶ 13; Montana Metal Buildings, Inc. v. Shapiro, 283 Mont. 471, 474, 942 P.2d 694, 696 (1997).
DISCUSSION
¶18 The breadth and scope of an easement are determined by the actual terms of the grant. Mularoni v. Bing, 2001 MT 215, ¶ 32, 306 Mont. 405, ¶ 32, 34 P.3d 497, ¶ 32 (citing § 70-17-106, MCA, and Van Hook v. Jennings, 1999 MT 198, ¶ 12, 295 Mont. 409, ¶ 12, 983 P.2d 995, ¶ 12). The construction of a writing granting an interest in real property, in turn, is governed by the rules of contract interpretation. See § 70-1-513, MCA (“Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this part.”); Mularoni, ¶ 32 (“In interpreting the meaning of an easement grant, contract principles apply.”). Thus, we begin by setting forth a number of the rules of contract interpretation that are pertinent to the issues discussed below.
¶19 The construction and interpretation of a contract is a question of law. Ophus v. Fritz, 2000 MT 251, ¶ 19, 301 Mont. 447, ¶ 19, 11 P.3d 1192, ¶ 19; Van Hook, ¶ 10. Likewise, whether an ambiguity exists in a contract is a question of law. Mularoni, ¶ 32; SVKV, L.L.C. v. Harding, 2006 MT 297, ¶ 43, 334 Mont. 395, ¶ 43, 148 P.3d 584, ¶ 43. If the language of a contract is unambiguous-i.e., reasonably susceptible to only one construction-the duty of the court is to apply the language as written. Ophus, ¶ 23; Carelli v. Hall, 279 Mont. 202, 209, 926 P.2d 756, 761 (1996). However, if the language of a contract is ambiguous, a factual determination must be made as to the parties’ intent in entering into the contract. In re Marriage of Mease, 2004 MT 59, ¶ 30, 320 Mont. 229, ¶ 30, 92 P.3d 1148, ¶ 30; Klawitter v. Dettmann, 268 Mont. 275, 281, 886 P.2d 416, 420 (1994).
¶20 The determination of whether an ambiguity exists in a contract is to be made on an objective basis. See Richard A. Lord, Williston on Contracts vol. 11 § 30:4, at 51 (4th ed., West 1999). Thus, “a conclusion of ambiguity is not compelled by the fact that the parties to a document, or their attorneys, have or suggest opposing interpretations of a contract, or even disagree as to whether the contract is reasonably open to just one interpretation.” Williston on Contracts § 30:4, at 51-54 (footnotes omitted); accord E. Allan Farnsworth, Farnsworth on Contracts vol. II, § 7.12a, at 305-06 (2d ed., Aspen 1998); Holmstrom v. Mutual Benefit Health & Accident Ass’n, 139 Mont. 426, 428, 364 P.2d 1065, 1066 (1961) (“Ambiguity does not exist just because a claimant says so.”); Heggem v. Capitol Indem. Corp., 2007 MT 74, ¶ 30, 336 Mont. 429, ¶ 30, 154 P.3d 1189, ¶ 30 (“[A] mere disagreement over the meaning of an insurance provision does not render the provision ambiguous.”). Rather, an ambiguity exists only if the language is susceptible to at least two reasonable but conflicting meanings. Ophus, ¶ 23; Van Hook, ¶ 13.
¶21 “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” Section 28-3-301, MCA; accord § 1-4-103, MCA (“In the construction of an instrument, the intention of the parties is to be pursued if possible.”). The mutual intention of the parties, in turn, is to be ascertained from the writing if possible. Section 28-3-303, MCA (“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.”). In addition, evidence of the circumstances under which the contract was made and the matter to which it relates may be considered. Section 28-3-402, MCA (“A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.”); § 28-2-905(2), MCA (“[The parol evidence rule] does not exclude other evidence of the circumstances under which the agreement was made or to which it relates.”). However, such evidence of circumstances and subject matter is not admissible to add to, vary, or contradict the terms of the contract. See § 28-2-904, MCA (“The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.”); § 28-2-905(1), MCA (“Whenever the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms. Therefore, there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing except ... (a) when a mistake or imperfection of the writing is put in issue by the pleadings[, or] (b) when the validity of the agreement is the fact in dispute.” (paragraph breaks omitted)).
¶22 With these principles in mind, we now turn to the Landowners’ contentions.
¶23 Issue 1. Did the District Court erroneously construe the term “together with” as that term is used in the unambiguous granting language?
¶24 The Landowners do not contest Cenex’s authority under the right-of-way agreements to construct and operate the fiber optic cable. But they claim that the “plain and- unambiguous” granting language “confirms that the fiber optic cable is incidental or subservient to the clearly dominant grant of a petroleum pipeline easement” and “limits its use to operating and monitoring the Pipeline.”
¶25 As support for this position, the Landowners renew their contention that the term “together with” in the granting language unambiguously limits Cenex’s use of the fiber optic cable to operating and monitoring the pipeline. Again, the granting language provides as follows:
[Grantors] do hereby grant, sell and convey unto [Cenex]... the right to construct, maintain, inspect, operate, protect, repair, replace, change the size of or remove a pipeline or pipelines or other appurtenances, for the transportation of oil, liquids and/or gases and the products thereof, together with a buried fiber optic communications cable, in, on, under or upon and along a strip of land Fifty Feet (50 ft.) in width to be selected by Grantee on, in, over and through the following described lands .... [Emphasis added.]
The Landowners argue that because the language pertaining to the fiber optic cable is prefaced with the words “together with,” and because this term is defined as “in union with” or “along with” (citing Black’s Law Dictionary 1487 (6th ed. 1990), and Gilmore v. Mulvihill, 109 Mont. 601, 613, 98 P.2d 335, 341 (1940)), the granting language “clearly limits” the use of the fiber optic cable to operating and monitoring the pipeline. In the Landowners’ view, the import of the term “together with” is “in connection with”; in other words, the fiber optic cable is to be used “in connection with” the pipeline.
¶26 The District Court however, reasoned that “[the words ‘together with’] mean nothing more than ‘and’ in the context of the granting language.” The court stated that Black’s Law Dictionary 79 (5th ed. 1979) defines “and” as meaning “together with” and “along with,” and that Webster’s Third New International Dictionary 2404 (1971) defines the term “together with” as “along with,” “in addition to,” and “as well.” (The court consulted Webster’s Third New International Dictionary because this Court had relied on Webster’s New International Dictionary in Gilmore when defining the word “together.”) Thus, under the District Court’s interpretation of “together with,” the Landowners granted Cenex the right to bury a pipeline and a fiber optic cable, not a pipeline and a fiber optic cable “to be used in connection therewith.” ¶27 We agree with the District Court and reject the Landowners’ strained interpretation of “together with.” Whether “together with” is defined as “in union with,” “along with,” “in addition to,” “as well,” or “and,” the term-on its face-simply does not carry the meaning the Landowners ascribe to it. As support for their “in connection therewith” interpretation, the Landowners rely on the Mississippi Supreme Court’s decision in McDonald v. Mississippi Power Co., 732 So.2d 893 (Miss. 1999). McDonald, however, does not support the Landowners’ position.
¶28 The Mississippi Power Company (“MPC”) obtained easements through a number of properties by way of condemnation, eminent domain proceedings, and voluntary easements. The easements gave MPC the right to
“construct, operate and maintain electric lines and all telegraph and telephone lines, towers, poles, wires, and appliances and equipment necessary or convenient in connection therewith from time to time and counterpoise wire and other counterpoise conductors, upon, over, under, and across a strip of land . . .”
McDonald, ¶ 2 (ellipsis in original, emphasis added).
¶29 In McDonald, MPC sought a declaratory judgment that it had the right under the easements to install, utilize, and sublet space on fiber optic cables. The chancery court determined that laying fiber optic cables was “well within the express or implied language of the easements” and that MPC had the right to “leas[e] or sell[] excess capacity on said lines, without further compensation to the landowners.” McDonald, ¶ 4 (internal quotation marks omitted). The Mississippi Supreme Court agreed with the first conclusion but disagreed with the latter. The court observed that the clear intent of the easements was “to grant MPC the right to install and maintain telephone lines” and a fiber optic cable “is nothing more than a technologically advanced or new type of telephone line.” McDonald, ¶ 9. However, with respect to MPC’s desire to sublet space on the fiber optic cables to third parties for uses other than providing electricity, the court observed:
MPC’s current easements contain limiting language which precludes them from utilizing the fiber optics cable for anything but services provided in connection with supplying electricity. According to the phrase in question, MPC’s use of “telegraph and telephone lines, towers, poles, wires, and appliances and equipment” is limited to “in connection therewith” MPC’s service of providing electricity to its customers. Although it would not constitute an additional servitude on the property, MPC without more definite easements simply does not have the authority. Since MPC drafted a number of the easements in question, they are interpreted most favorably to the landowner. We find that the chancellor erred in holding that the language of the above easements permitted MPC to sublease space on its fiber optics cables for purposes other than those which are in connection with providing electricity.
McDonald, ¶ 10 (citation omitted). The court reached the same conclusion with respect to the easements that had been obtained through condemnation or eminent domain proceedings. See McDonald, ¶11.
¶30 In the case at hand, by contrast, there is no such limiting language. The Landowners insist that “there is little difference between the words ‘together with’ in the instant case and ‘in connection therewith’ in McDonald” and that use of the word “together” in the instant case and “connection” in McDonald “is a distinction without a difference.” We disagree. It seems that the Landowners would have us rewrite the granting language to say:
[Grantors] do hereby grant, sell and convey unto [Cenex] .. . the right to construct, maintain, inspect, operate, protect, repair, replace, change the size of or remove a pipeline or pipelines or other appurtenances, for the transportation of oil, liquids and/or gases and the products thereof, together with and a buried fiber optic communications cable to be used in connection therewith .... [Strikethrough for old language; underscore for new language.]
This we may not do. See § 1-4-101, MCA (“In the construction of an instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”); cf. City of Missoula v. Mix, 123 Mont. 365, 372, 214 P.2d 212, 216 (1950) (“Where the language of a reservation in a grant is clear, certain and unambiguous, it must be given effect as written.”). Accordingly, we hold that the term “together with,” as used in the granting language, does not unambiguously limit Cenex’s use of the fiber optic cable to operating and monitoring the pipeline.
¶31 Issue 2. Did the District Court err by failing to interpret the unambiguous granting language in the light most favorable to the Landowners?
¶32 The Landowners argue that the District Court erred by failing to interpret the granting language in the light most favorable to the Landowners. They contend that “with a very few minor exceptions, Cenex drafted all of the [right-of-way agreements]”; thus, “[i]f Cenex truly intended the Easement granting language to be unlimited in its use, Cenex should have said so.” As support for this argument, the Landowners rely on McDonald, in which the Mississippi Supreme Court stated: “Since MPC drafted a number of the easements in question, they are interpreted most favorably to the landowner.” McDonald, ¶ 10. The Landowners also cite United States v. Seckinger, 397 U.S. 203, 210, 90 S. Ct. 880, 884 (1970) (reciting “the general maxim” that “a contract should be construed most strongly against the drafter”), and Anderson v. Baker, 196 Mont. 494, 501, 641 P.2d 1035, 1039 (1982) (noting that in “ ‘take-it-or-leave-it’ situations, where adhesion contracts are involved, . . . the terms are to be construed against the drafter and any ambiguities are to be resolved in favor of the party having no voice in arriving at the document’s terms”).
¶33 Cenex contends that “[i]t is only when the terms of an agreement or contract are uncertain or ambiguous that they are construed against the party causing the uncertainty”; thus, “[s]ince the district court found the [granting language] unambiguous, there is no reason to construe [it] against Cenex.” As support for this argument, Cenex cites C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411, 423, 121 S. Ct. 1589, 1596-97 (2001) (stating that “the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it” was inapposite because the contract in question was not ambiguous (internal quotation marks omitted)), and Matter of Estate of Thies, 273 Mont. 272, 276, 903 P.2d 186, 188 (1995) (stating that our decision in Matter of Estate of Flasted, 228 Mont. 85, 741 P.2d 750 (1987), in which we construed a contractual ambiguity against the drafter, did not apply in Thies because the agreement in question was “ ‘straightforward and simple’ ”).
¶34 We agree with Cenex. The Restatement (Second) of Contracts explains the rationale for the construction-against-drafter principle as follows:
Where one party chooses the terms of a contract, he is likely to provide more carefully for the protection of his own interests than for those of the other party. He is also more likely than the other party to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert.
Restatement (Second) of Contracts § 206 cmt. a (1981). Thus, the Restatement provides that “[i]n choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.” Restatement (Second) of Contracts § 206.
¶35 Yet, it is not necessary to “choos[e] among ... reasonable meanings” when the promise, agreement, or term thereof is reasonably susceptible to only one meaning. In other words, the general maxim that a court should construe contract language against the party that drafted it presupposes that the language is reasonably susceptible to more than one construction. See C & L Enterprises, 532 U.S. at 423, 121 S. Ct. at 1596-97; Thies, 273 Mont. at 276, 903 P.2d at 188.
¶36 Here, the Landowners contend that the granting language is unambiguous. Thus, the construction-against-drafter principle does not apply. Rather, the duty of the District Court was to apply the language as written. Ophus, ¶ 23; Carelli, 279 Mont. at 209, 926 P.2d at 761. Accordingly, we hold that the District Court did not err by not interpreting the granting language in the light most favorable to the Landowners.
¶37 Issue 3. Did the District Court err by refusing to consider the circumstances under which the easements were granted?
¶38 The Landowners contend that the granting language of the right-of-way agreements must be considered in light of the circumstances under which the agreements were made and that the District Court erred when it refused to do so. The Landowners rely on § 1-4-102, MCA, which provides:
For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown so that the judge be placed in the position of those whose language he is to interpret. [ ]
The District Court reasoned that § 1-4-102 did not apply in this case “[b]ecause the Easements are unambiguous.” The Landowners point out, however, that § 1-4-102 does not say “except when the language of the instrument itself is unambiguous.” The Landowners also point out that in Tester v. Tester, 2000 MT 130, 300 Mont. 5, 3 P.3d 109, this Court applied § 1-4-102 to a deed that we determined was unambiguous:
The plain language of the Funk deed is unambiguous. An unambiguous deed must be interpreted according to its language as written, without resort to extrinsic evidence of the grantor’s intent. For proper construction of an instrument § 1-4-102, MCA, allows us to examine the “circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it.”
Tester, ¶ 25 (citation omitted). We then proceeded to discuss the circumstances under which the Funk deed had been made. See Tester, ¶¶ 25, 27-28. Therefore, the Landowners contend, “[u]nder § 1-4-102, MCA, a court may look to the surrounding circumstances in order to construe an instrument even when that instrument is unambiguous on its face.”
¶39 Cenex counters that § 1-4-102 applies only where an ambiguity exists in the language of the instrument. As support for this position, they cite Payne v. Buechler, 192 Mont. 311, 628 P.2d 646 (1981), Spraggins v. Elvidge, 192 Mont. 8, 625 P.2d 1151 (1981), and Yellowstone II Dev. Group v. First American Title Ins., 2001 MT 41, 304 Mont. 223, 20 P.3d 755. In Payne, this Court stated:
[Section 1-4-102] relates to construction and interpretation of written instruments but is irrelevant here. The language of the contract is plain and unambiguous. Under such circumstances, the language alone controls and there is nothing for the Court to interpret or construe. Section 28-3-401, MCA and section 28-3-303, MCA. [Section 1-4-102] only applies where an ambiguity exists in the language of the contract.
Payne, 192 Mont. at 317, 628 P.2d at 650. Similarly, we stated in Spraggins: “When the contract is clear and unequivocal on its face, section 1-4-102, MCA, does not apply.” Spraggins, 192 Mont. at 12, 625 P.2d at 1153 (citing Ryan v. Ald, Inc., 146 Mont. 299, 406 P.2d 373 (1965)). Finally, in Yellowstone II, we stated:
Determining whether a term in a contract is ambiguous-i.e., subject to more than one reasonable meaning in view of the contract as a whole-is not a question involving parol evidence, but merely one of law concerning interpretation and potential use of extrinsic evidence.
Yellowstone II, ¶ 35.
¶40 Given the apparently inconsistent statements in Tester, Payne, Spraggins, and Yellowstone II concerning the applicability of § 1-4-102, it is necessary to clarify whether ambiguity is a prerequisite to the statute’s application in a given case.
A. Clarification of the Applicability of § 1-4-102, MCA
¶41 Section 1-4-102 derives from, and is identical to, § 1860 of the Code of Civil Procedure of California (1871), which in turn is credited to § 1693 of the New York Code of Civil Procedure. The language of § 1-4-102, which has remained unchanged since its enactment in 1877 {see Laws of Montana Territory, 1877, § 614, at 198), is a codification of the decisions of the courts on this subject. See Shreve v. Copper Bell Min. Co., 11 Mont. 309, 323, 28 P. 315, 315-16 (1891) (noting the same about § 1-4-107, MCA, which was enacted as § 615 of the Laws of Montana Territory, 1877, at 198-99). Thus, an appropriate starting point for this discussion is to consider how the principles now codified in § 1-4-102 were understood and applied during that period.
¶42 In Donnell v. Humphreys, 1 Mont. 518 (Mont. Terr. 1872), the parties disputed the language of a deed, dated June 23,1870, by which Humphreys conveyed to Donnell the following property:
“The ditches known as the Silver Bow Ditch Company’s ditches; said ditches carrying water from Silver Bow creek to Butte City and the placer mines in that vicinity, and more particularly known as the Humphreys and Allison ditches.”
Donnell, 1 Mont. at 522-23. At trial, Donnell sought to prove that the “Park ditch” was included in this conveyance. To that end, Donnell offered the following testimony: that the Silver Bow Ditch Company’s ditches were made up of and included what was then known as the “upper ditch,” the “lower ditch,” and the “Park ditch”; that the upper and lower ditches carried water from Silver Bow creek and its tributaries to the placer mines, in the vicinity of Butte City; that the Park ditch was built to supply water from a branch of Bolder creek to Silver Bow creek and, in turn, to the upper and lower ditches; that the Park ditch, thus, was a feeder of the upper and lower ditches; that at the time of the conveyance, the waters from the Park ditch had always flowed through the upper and lower ditches; and that the three ditches were known and reputed as the Silver Bow Ditch Company’s ditches and, more particularly, as the Humphreys and Allison ditches. Donnell, 1 Mont. at 523. The trial court sustained an objection to this testimony.
¶43 On appeal, the Supreme Court of the Montana Territory considered whether the trial court had erred in rejecting the proffered testimony. In so doing, the Court first observed that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument” because “when parties have deliberately put their contracts in writing in such terms as import a legal obligation, without uncertainty or ambiguity as to the object, nature and extent of their agreements, it is conclusively presumed that the whole of the contract was reduced to writing.” Donnell, 1 Mont. at 525-26. The Court explained, however, that parol evidence is always admissible to give effect to the contract:
And so the intent of the parties must be gathered from what is written rather than from parol evidence, but the language of the instrument may be construed by the light of surrounding circumstances, and, so far as possible, the court may put itself in the place of the parties, and may interpret the language from this standpoint, but nothing can be added to or taken from the written words.
So extrinsic parol evidence is always admissible to give effect to a written instrument, by applying it to its proper subject-matter, by proving the circumstances under which it was made, thereby enabling the court to put themselves in the place of the parties with all the information possessed by them, the better to understand the terms employed in the contract, and to arrive at the intention of the parties.
Instruments are to be interpreted according to their subject-matter, and parol evidence may be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. Whatever indicates the nature of the subject, is a just medium of interpretation of the language of the parties, and is also a just foundation for giving the instrument an interpretation when considered relatively, different from that which it would receive if considered in the abstract.
It is necessary to the validity of a grant that the thing granted should be capable of being distinguished from all other things of the kind, but it is not necessary that the description should be such as to identify the object without the aid of extraneous testimony. And when the description alludes to facts beyond the deed, parol evidence may be offered, not to contradict the description, but to locate the deed upon the land.
Donnell, 1 Mont. at 526 (citations and emphases omitted).
¶44 The Court reasoned that it was not possible for the trial court, looking at the language of the deed alone, to say how many ditches were known as “the Humphreys and Allison ditches” and whether the Park ditch was an essential component of a system of ditches by which water was carried from Silver Bow creek to the mines of Butte City. Donnell, 1 Mont. at 527. In this regard, the Court noted:
If the upper and lower ditches were valueless without the Park ditch, and all three were known as the Humphreys and Allison ditches, then we must suppose that the party paying more than $6,000 for the Humphreys and Allison ditches, and the party receiving that sum in consideration of the conveyance, intended to convey the three ditches in question, for the value of each would so depend upon the other as to make the three one property, one subject-matter.
Donnell, 1 Mont. at 528. Accordingly, the Court held that parol evidence was admissible to apply the deed to its proper subject matter and that Donnell’s proffered testimony should not have been rejected by the trial court.
¶45 The Court provided an insightful clarification of the foregoing principles in Taylor v. Holter, 1 Mont. 688 (Mont. Terr. 1872). At issue in that case was a deed by which Hoyt and Holter granted Taylor, Smith, and Cleveland “[a]ll the water of the right-hand fork of Oro Fino gulch.” Taylor, 1 Mont. at 691 (internal quotation marks omitted). At trial, testimony was offered to prove that the grantors had intended to convey, and that the grantees had intended to receive by virtue of this deed, the waters of the left-hand fork of Oro Fino gulch. The trial court sustained an objection to this testimony.
¶46 On appeal, the Supreme Court restated the principles set forth in Donnell (quoted above in ¶ 43) and then clarified the applicability of these principles:
The true rule is, to give effect to the intention of the parties if the words they employ will admit of it. But if the words used, by their clearness and certainty, absolutely forbid the aid of extrinsic evidence in their interpretation, it would be changing the certain written contract of the parties to let in outside parol proof.
Parties must contract for themselves, courts cannot make contracts for them, and the rules of interpretation are utterly unavailing to aid a contract or agreement that is specific and certain in its terms, and clearly speaks what the parties intended it should. If parties convey the right-hand fork of Oro Fino gulch, courts nor witnesses cannot say they thereby intended the left-hand fork. As well might they say they intended the left fork of the Missouri river, or the north fork of the Yellowstone, and all the circumstances and surroundings of the parties, however plausible they may appear, cannot blot out the language of the deed and supply other language in its place. Such circumstances and surroundings may aid the language but cannot destroy it. They can apply the deed to its proper subject, and when thus applied, the language must describe such subject, and be entirely consistent with it. The language must control and not the circumstances. The written words must stand and no parol proof can destroy them.
Taylor, 1 Mont. at 698-99 (emphases omitted). The Court held, therefore, that the proffered parol evidence had been properly rejected by the trial court.
¶47 Thus, as a general rule, evidence of the circumstances under which an instrument was made may not be considered where the language of the instrument is clear and certain in its terms. Taylor, 1 Mont. at 698-99; see also Ming v. Pratt, 22 Mont. 262, 265, 56 P. 279, 280 (1899) (stating that resort to evidence of the surroundings of the parties, the subject matter, and prior and contemporaneous oral negotiations and promises illumining the design and intent of the parties is not permissible where the intention and understanding are explicitly declared upon the face of the writing itself); Kimball v. Semple, 25 Cal. 440, 449 (1864); Richardson v. Scott River W. and M. Co., 22 Cal. 150, 155-56 (1863). However, as recognized in the authorities discussed below, this rule does not preclude consideration of surrounding circumstances for the purpose of determining, as a preliminary matter, whether the instrument contains an ambiguity. For instance, borrowing the illustration set forth in Taylor, 1 Mont. at 694, if a grantor conveys “my house and lot in Helena,” it would be proper for the court to consider the circumstance that the grantor owned two houses and lots in Helena, thus rendering “my house and lot in Helena” susceptible to at least two reasonable but conflicting meanings; and extrinsic evidence would also be admissible in this situation to show which of the two houses the grantor intended to convey. By contrast, if the grantor conveyed “my brick house on Main Street,” the fact that the grantor also owned a wooden house on Rodney Street would not render “my brick house on Main Street” ambiguous; and extrinsic evidence would not be admissible to show that the grantor intended to convey the wooden house.
¶48 It is thus stated in the Restatement (Second) of Contracts § 212 cmt. b (1981): “It is sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain except in a context.” Accordingly, the Restatement takes the position that
[a]ny determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties. But after the transaction has been shown in all its length and breadth, the words of an integrated agreement remain the most important evidence of intention.
Restatement (Second) of Contracts § 212 cmt. b (cross-references omitted).
¶49 The Ohio Supreme Court long ago articulated one rationale for this approach:
These parties [to the written contract in question] may be fairly presumed to have understood the matter about which they were contracting. But the same thing cannot be said of every court and jury that may be called on to interpret their contract. To enable the court and jury to be as wise as the parties, and so to arrive at and give application to the words they have used, and thus carry out their intentions, the law permits them to hear a full description, from evidence, of the subject matter of the contract, and of all the circumstances that surrounded the parties at the time it was made; and to learn what were the motives and inducements that led to the contract, and the object to be attained by it; .... The object or tendency of this evidence is not to contradict or vary the terms of the instrument, but to enable the court to come to the language employed, with an enlightened understanding of the subject matter in reference to which it has been used.
Hildebrand v. Fogle, 20 Ohio 147, 157 (1851); see also Jenny Lind Co. v. Bower & Co., 11 Cal. 194, 198 (1858); Kimball, 25 Cal. at 449.
¶50 A more recent articulation of these principles appears in Corn Exchange Nat. Bank & Trust Co. v. Taubel, 175 A. 55 (N.J. 1934), where the Court of Errors and Appeals of New Jersey explained as follows:
The standard of interpretation of an integrated agreement, supported by the weight of modem authority, is the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the writing, other than oral statements by the parties of what they intended it to mean, except where it produces an ambiguous result, or is excluded by rule of law establishing a definite meaning. This has been termed a primary rule of interpretation which is always applicable, whether the writing seems clear or ambiguous. The underlying theory is that as all language will bear some different meanings, evidence of surroundings is always admissible in the interpretation of integrated agreements, but not for the purpose of giving effect to an intent at variance with any meaning that can be attached to the words.... So far as the evidence tends to show, not the meaning of the writing, but an intention wholly unexpressed in the writing, it is irrelevant.
Corn Exchange, 175 A. at 58 (citations and internal quotation marks omitted).
¶51 Likewise, in S.W. Bridges & Co. v. Bank of Fergus County, 77 Mont. 524, 538, 251 P. 1057, 1060-61 (1926), this Court stated:
The face of an instrument is not always conclusive of its purpose. The rule regards the circumstances of the parties, and executes their real intention, and prevents either of the parties to the instrument from committing a fraud on the other by claiming it to be what it in fact is not. In other words, the real transaction may be proved.
And as long ago as Newell v. Nicholson, 17 Mont. 389, 43 P. 180 (1896), we recognized that words, while they may be perfectly clear to the contracting parties, may not be correctly understood by the court tasked with the construction of the contract. The dispute in Newell was over the meaning of the words “Don’t sell we to exchange any goods that don’t sell; credit for same,” and “Sales guarantied.” Citing §§ 632 and 633 of the Code of Civil Procedure (Comp. St. 1887) (now §§ 1-4-102 and -107, MCA, respectively), we held that the trial court had not erred in considering the testimony of a number of merchants, salesmen, and businessmen showing that the words had a technical or peculiar signification and were so used and understood in the particular instance. Newell, 17 Mont. at 392-93, 43 P. at 181.
¶52 This same point was made in AM Intern. v. Graphic Management Inc., 44 F.3d 572, 575 (7th Cir. 1995), where the Seventh Circuit observed:
The famous contract in Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng.Rep. 375 (Ex. 1864),... was clear on its face. It called for the shipment of a specified amount of cotton from one port to another on the ship Peerless. Clear as a bell. Only there were two (if not more) ships Peerless, and it was impossible to tell which one the contract referred to. The contract was unclear because clarity in a contract is a property of the correspondence between the contract and the things or activities that it regulates, and not just of the semantic surface.
Take another example. Suppose the parties to the contract in Raffles had been members of a trade in which the term “cotton” was used to refer to guncotton rather than to the cotton used in textiles. The ordinary reader of English would not know about this special trade usage, and so would suppose the contract unambiguous. Again, the ambiguity is in the reference, that is, the connection between the word and the object that it denotes.
See also Margaret N. Kniffin, Corbin on Contracts vol. 5, § 24.7, at 30-39 (Joseph M. Perillo ed., rev. ed., Lexis 1998).
¶53 In light of the foregoing authorities, we hold that “the circumstances under which [an instrument] was made, including the situation of the subject of the instrument and of the parties to it,” § 1-4-102, MCA, may be shown and considered to aid the court in determining, as a preliminary matter, whether the instrument contains an ambiguity. We emphasize, however, that not all “circumstances” are admissible for this purpose. As stated earlier, an instrument does not contain an ambiguity simply because the parties have or suggest opposing interpretations thereof or disagree as to whether the language is reasonably open to just one interpretation. Rather, the determination of whether an ambiguity exists in a contract is made on an objective basis. See ¶ 20, supra. Addressing this subject in some detail, the Seventh Circuit (interpreting Illinois law) explained:
[A contract] may be extrinsically ambiguous, being clear on its face but someone who knows the context of the contract would know that the contract means something other than what it seems to mean. In that situation, we distinguish between “subjective” and “objective” evidence of ambiguity. “Subjective” evidence of ambiguity is the testimony of the parties themselves as to what they believe the contract means, which is invariably self-serving, inherently difficult to verify and thus, inadmissible. ... “Objective” evidence, on the other hand, is evidence of ambiguity that can be supplied by disinterested third parties, such as custom or usage of the trade. This kind of evidence is admissible because the ability of one of the contracting parties to fabricate such evidence is limited.
Home Ins. Co. v. Chicago and Northwestern Transp. Co., 56 F.3d 763, 768 (7th Cir. 1995) (citations and some internal quotation marks omitted).
¶54 Another reason objective evidence is admissible, while subjective evidence is not, is “because there is a further screen to protect the parties: the objective evidence of ambiguity must be presented first to the judge, and only if the judge concludes that it establishes a genuine ambiguity is the evidence given to the jury.” Home Ins. Co., 56 F.3d at 768-69 (citing AM Intern., 44 F.3d at 575, and Sunstream Jet Exp. v. International Air Service Co., 734 F.2d 1258, 1267-68 (7th Cir. 1984)). This procedural mechanism is characterized in Williston on Contracts as “correctly allocating]” to the judge and the jury their respective responsibilities:
First, the evidence is considered by the court to enable it to determine whether the contract or clause is ambiguous; if it is not, the inquiry ends and parol evidence is kept from the jury. If, however, the judge is convinced by the extrinsic evidence that an ambiguity exists, the evidence is presented to the jury so that it may determine, on the basis of the written contract, as explained or supplemented by the extrinsic evidence, which of two or more meanings the parties intended.
Richard A. Lord, Williston on Contracts vol. 11, § 33:39, at 815-16 (4th ed., West 1999); see also Margaret N. Khiffin, Corbin on Contracts vol. 5, § 24.7, at 39-54 (Joseph M. Perillo ed., rev. ed., Lexis 1998); E. Allan Farnsworth, Farnsworth on Contracts vol. II, § 7.12, at 295-97 (2d ed., Aspen 1998).
¶55 We are persuaded that this procedural mechanism is the correct approach and therefore adopt it. Thus, for the purpose of aiding the court in determining, as a preliminary matter, whether the instrument contains an ambiguity, objective evidence of “the circumstances under which [the instrument] was made, including the situation of the subject of the instrument and of the parties to it,” may be shown and considered. Section 1-4-102, MCA. If the court determines that the instrument contains no ambiguity, then the extrinsic evidence may not be considered further. See Doble v. Bernhard, 1998 MT 124, ¶ 19, 289 Mont. 80, ¶ 19, 959 P.2d 488, ¶ 19 (“If the terms of the contract are clear... there is nothing for the courts to interpret or construe and the court must determine the intent of the parties from the wording of the contract alone.” (internal quotation marks omitted)). But if the court determines that an ambiguity is present in the instrument, then the extrinsic evidence may be introduced at trial to allow the trier of fact to determine the intent of the parties in entering into the contract. See Olson v. Jude, 2003 MT 186, ¶ 47, 316 Mont. 438, ¶ 47, 73 P.3d 809, ¶ 47 (“Where a written instrument is ambiguous, extrinsic evidence may be utilized to discover the parties’ intent.”); Martin v. Laurel Cable TV, Inc., 215 Mont. 229, 233, 234, 696 P.2d 454, 457 (1985) (“The [trial] court properly accepted parol testimony to explain circumstances surrounding the lease agreement, thus resolving the ambiguity existing in the instrument.” (citing §§ 1-4-102 and 28-2-905(2), MCA)).
¶56 With these clarifications concerning the applicability of § 1-4-102, MCA, in mind, we now consider the cases cited by the Landowners (Tester) and Cenex (Spraggins, Payne, and Yellowstone II) for their respective arguments concerning the statute’s applicability in this case.
B. Spraggins, Payne, Yellowstone II, and Tester
¶57 In Spraggins, the written contract in question was “clear on its face.” Spraggins, 192 Mont. at 12, 625 P.2d at 1153. It spoke exclusively of the parties’ agreement concerning the Mint Bar and made no mention of the Diablo Mobile Repair business. Nevertheless, the district court allowed parol evidence of an earlier agreement between the parties concerning the Diablo Mobile Repair business to alter and vary the terms of the written contract concerning the Mint Bar. We held this was error, noting that none of the exceptions to the parol evidence rule applied. With respect to § 1-4-102, we stated that “[w]hen the contract is clear and unequivocal on its face, section 1-4-102, MCA, does not apply.” Spraggins, 192 Mont. at 12, 625 P.2d at 1153 (citing Ryan v. Ald, Inc., 146 Mont. 299, 406 P.2d 373 (1965)). This statement is consistent with the principle that surrounding circumstances may not be considered once the court has determined that the instrument is unambiguous. Thus, Spraggins comports with our clarifications of § 1-4-102 above.
¶58 The written contract at issue in Payne gave Payne the exclusive right to sell property owned by Buechler. It also provided that Buechler would pay Pasme the 10% commission if Buechler sold the property herself or withdrew Payne’s authority under the contract prior to the stated expiration date. Payne, 192 Mont. at 312-13, 628 P.2d at 647. Following a bench trial, the district court found that Buechler had not intended to grant Payne the exclusive right to sell the property. This finding was based on testimony by Buechler that she did not intend to give Pasme an exclusive listing and that she had previously given listings to other agencies which were still in effect at the time she entered into the contract with Pasme. On appeal, Buechler argued that the district court had properly admitted this testimony pursuant to § 1-4-102. We disagreed, observing that the language of the parties’ contract was “plain and unambiguous” and that, under such circumstances, “the language alone controls and there is nothing for the Court to interpret or construe.” Payne, 192 Mont. at 317, 628 P.2d at 650.
¶59 As in Spraggins, this statement is consistent with the principle that surrounding circumstances may not be considered once the court has determined that the instrument is unambiguous. However, our subsequent statement that § 1-4-102 “only applies where an ambiguity exists in the language of the contract,” Payne, 192 Mont. at 317, 628 P.2d at 650, was overbroad. As explained above, § 1-4-102 also applies to aid the court in determining whether an ambiguity exists in the first place, and our statement in Payne that the statute “only applies where an ambiguity exists in the language of the contract,” which was correct on the facts of that case, should not be read as precluding this additional purpose of § 1-4-102.
¶60 Next, parol evidence abounded in the briefs and in the record before this Court in Yellowstone II due to the inherent complications of the case. See Yellowstone II, ¶ 36. Yet, the documents at issue in the case were not ambiguous. Yellowstone II, ¶ 35. Thus, we clarified that we would disregard the parol evidence in the briefs and the record:
While we may properly consider evidence of the circumstances under which the agreement was made, see, e.g., Weinberg v. Farmers State Bank of Worden (1988), 231 Mont. 10, 24, 752 P.2d 719, 728; § 28-2-905, MCA, we will not consider evidence presented for the singular purpose of establishing that a contract includes supplemental promises or mutual understandings or conditions of performance that were never incorporated into a written agreement that by its own terms purports to represent the entire agreement between the parties. [Citations to §§ 28-2-904 and 70-20-202, MCA.]
Suffice to say, this Court must therefore disregard all attempts by Yellowstone II to establish that, in addition to the express, unambiguous terms of the written agreement, the “contract” should include additional parol promises or representations or mutual understandings allegedly made by the parties prior to and at the time of formation ....
Yellowstone II, ¶¶ 36-37 (emphasis added). These statements are merely applications of the parol evidence rule, §§ 28-2-904 and -905(1), MCA.
¶61 Cenex points out that we also stated: “Determining whether a term in a contract is ambiguous ... is not a question involving parol evidence, but merely one of law concerning interpretation and potential use of extrinsic evidence.” Yellowstone II, ¶ 35 (citing In re Marriage of Holloway, 2000 MT 104, ¶ 5, 299 Mont. 291, ¶ 5, 999 P.2d 980, ¶ 5, and § 1-4-102, MCA). Our use of the term “parol evidence” in this sentence, however, must be understood in the context of the discussion in ¶¶ 35-37 of Yellowstone II. The documents at issue were unambiguous; and the point of the discussion in ¶¶ 35-37, therefore, was to clarify that we would not consider evidence presented by Yellowstone II of additional parol promises or representations or mutual understandings allegedly made by the parties prior to and at the time the documents were executed. Thus, our statement that “[determining whether a term in a contract is ambiguous ... is not a question involving parol evidence,” Yellowstone II, ¶ 35, stands for the unremarkable proposition that subjective evidence of prior or contemporaneous oral promises may not be considered for the purpose of determining whether the contract contains an ambiguity. Nevertheless, to the extent that this statement might be understood to conflict with our clarifications above concerning the applicability of § 1-4-102, MCA, it is overruled.
¶62 Lastly, Tester concerned a boundary dispute in Bridger Canyon, just north of Bozeman, Montana (hereinafter, “Section 17”). Two roads of public record ran through Section 17 in a north-south direction: the 1891 County Road and the 1948 State Highway. Tester, ¶ 3. Throughout the plaintiffs’ chain of title, there were many inconsistencies, including the unclear use of the terms “public road” and “country road” in reference to the boundary between plaintiffs’ and defendants’ respective properties in Section 17. Tester, ¶ 16. The key point of confusion, however, regarded language in a 1951 deed by which James Funk conveyed all that part of Section 17 “ ‘lying East of the old County Road as existing over and across said Section prior to the year 1950.’ ” Tester, ¶¶ 16, 17. The plaintiffs claimed that the terms “public road” and “country road” in the deeds in their chain of title were references to the “traveled way,” which became the State Highway, and that Funk, therefore, had intended the State Highway, and not the Country Road, to be the boundary. The defendants, however, contended that if Funk had intended to transfer all land east of the State Highway, he would have used the words “ ‘all land lying East of the State Highway.’ ” Tester, ¶¶ 13, 22.
¶63 Applying § 1-4-102, we concluded that the defendants were correct:
The plain language of the Funk deed is unambiguous. An unambiguous deed must be interpreted according to its language as written, without resort to extrinsic evidence of the grantor’s intent. For proper construction of an instrument § 1-4-102, MCA, allows us to examine the “circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it.” The record indicates that the County Road was the only official road in the Section from 1891 to 1948 and was recorded as being in its original location until the State Highway was constructed in 1948.
If Funk intended to convey east of the State Highway which was constructed only three years earlier, he certainly could have done so. Instead, he explicitly conveyed east of the old County Road. To conclude that Funk’s language is ambiguous and that he really meant to convey east of the State Highway would be to read an intent into his language which is simply not justified.
We conclude that based on the unambiguous language of the deed, and the circumstances under which it was made, including the plats of Section 17, and the State Highway records, the District Court’s conclusion that the State Highway is the legal boundary between the properties was incorrect.
Tester, ¶¶ 25-28 (citation omitted).
¶64 This application of § 1-4-102 illustrates the use of extrinsic evidence for the purpose of determining, as a preliminary matter, whether the language in question is ambiguous. The crucial question was whether “the old County Road as existing over and across said Section prior to the year 1950” was susceptible to at least two reasonable but conflicting meanings. We considered the objective surrounding circumstances-namely, the plats of Section 17, the State Highway records, and the fact that at the time Funk executed the deed (in 1951), the County Road had existed since 1891 and the State Highway had existed since 1948-and we decided that the language was unambiguous.
¶65 Our analysis in Tester also illustrates the important distinction between Donnell and Taylor, supra. “Instruments are to be interpreted according to their subject-matter, and parol evidence may be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers.” Donnell, 1 Mont. at 526. Thus, it was appropriate in Tester to consider parol evidence in order to ascertain the subject to which “the old County Road as existing over and across said Section prior to the year 1950” referred. But while circumstances and surroundings may aid the language, they may not destroy it. “They can apply the deed to its proper subject, and when thus applied, the language must describe such subject, and be entirely consistent with it.” Taylor, 1 Mont. at 699. The plaintiffs’ evidence of Funk’s intent to convey “the State Highway” was entirely inconsistent with the language “old County Road” in the deed. Thus, such evidence should not have been considered by the district court.
¶66 We conclude, therefore, that Tester also comports with our clarifications of § 1-4-102 herein.
C. Application of § 1-4-102, MCA, to the Right-of-Way Agreements
¶67 Turning now to the right-of-way agreements, the District Court reasoned that § 1-4-102 did not apply in this case “[b]ecause the Easements are unambiguous.” To the extent the District Court understood § 1-4-102, MCA, as precluding it from considering objective evidence of the circumstances under which the right-of-way agreements were made for the purpose of determining, as a preliminary matter, whether the agreements contained an ambiguity, the court erred for the reasons set forth above.
¶68 Nevertheless, the Landowners’ leading argument (in both the District Court and this Court) is that the granting language is unambiguous, and Cenex agrees with the Landowners on this point. Accordingly, in this situation, where the parties concede that the language in question is unambiguous, § 1-4-102 does not apply. See ¶ 47, supra. On this basis, therefore, we hold that the District Court did not err in refusing to consider the circumstances under which the right-of-way agreements were made.
¶69 Issue 4. Did the District Court err in determining that the granting language is unambiguous?
¶70 As a backup position, the Landowners argue (as they did in the District Court) that the granting language is ambiguous. The Landowners first point out that they and Cenex have offered “two distinct readings of the Easement granting language,” which in their view “establishes the ambiguity of the granting language.” We reject this argument outright. As stated above, “a conclusion of ambiguity is not compelled by the fact that the parties to a document, or their attorneys, have or suggest opposing interpretations of a contract, or even disagree as to whether the contract is reasonably open to just one interpretation.” Richard A. Lord, Williston on Contracts vol. 11, § 30:4, at 51-54 (4th ed., West 1999) (footnotes omitted); accord Holmstrom v. Mutual Benefit Health & Accident Ass’n, 139 Mont. 426, 428, 364 P.2d 1065, 1066 (1961) (“Ambiguity does not exist just because a claimant says so.”); Heggem v. Capitol Indem. Corp., 2007 MT 74, ¶ 30, 336 Mont. 429, ¶ 30, 154 P.3d 1189, ¶ 30 (“[A] mere disagreement over the meaning of an insurance provision does not render the provision ambiguous.”).
¶71 The Landowners next argue that “ '[t]ogether with’ and ‘in connection with’ easily can be considered synonymous by reasonable people. Thus, reasonable people could interpret the Easement granting language differently.” We have already rejected this argument. The term “together with,” as used in the granting language, is not reasonably susceptible to the meaning “in connection with.” See ¶ 27, supra.
¶72 The Landowners also present three “circumstances” under which the easements were granted. We will examine these circumstances to determine, as a preliminary matter, whether they demonstrate the existence of an ambiguity in the granting language.
¶73 First, the Landowners contend that they were told by Cenex’s agents that the fiber optic cable would be used only to operate and monitor the pipeline. Second, and in a similar vein (but framed as a separate “circumstance”), the Landowners state:
The Landowners never contemplated that a transcontinental communications network would be running across their land. They certainly had no idea that tens, if not hundreds, of third-party companies would use the Easements to transmit General Telecommunications. The Landowners also had no idea that repair trucks from tens, if not hundreds, of different companies could come onto their land to regenerate the light and maintain, repair, and splice the [Indefeasible Rights of Use].
These two circumstances, however, do not demonstrate the existence of an ambiguity in the granting language. As explained above, testimony of the parties as to what they believe the language in question means-i.e., subjective evidence of ambiguity-“is invariably self-serving, inherently difficult to verify and thus, inadmissible.” Home Ins. Co., 56 F.3d at 768. Thus, these two circumstances may not be considered here. But even if this subjective evidence could be considered, the granting language is not susceptible to the meaning the Landowners advocate here based on what Cenex’s agents allegedly told them and how the Landowners “contemplated” the fiber optic cable would be used. To conclude that the granting language provides that “the fiber optic cable may be used only to operate and monitor the pipeline” would be to insert language into the right-of-way agreements-something we may not do. See § 1-4-101, MCA; see also Corn Exchange, 175 A. at 58 (“So far as the [proffered] evidence tends to show, not the meaning of the writing, but an intention wholly unexpressed in the writing, it is irrelevant.”). These two circumstances, therefore, do not establish that the granting language is ambiguous.
¶74 Third, the Landowners assert that Cenex “threatened” condemnation in order to secure the right-of-way agreements. The Landowners maintain that the granting language, therefore, “was intended to convey only that which would be authorized by statute if Cenex exercised its power of eminent domain. The language Cenex chose [in drafting the right-of-way agreements] only can be interpreted to conform to, and be in compliance with, § 69-13-103(1), MCA.” Section 69-13-103(1), MCA, provides:
The right to lay, maintain, and operate pipelines, together with telegraph and telephone lines incidental to and designed for use only in connection with the operation of such lines, or along, across, or under any public stream or highway in this state is hereby conferred upon all persons, firms, limited partnerships, joint-stock associations, or corporations coming within any of the definitions of common carrier pipelines as hereinbefore made. [Emphasis added.]
However, even assuming, arguendo, that Cenex used “the threat of condemnation” to secure the easements, this circumstance does not render the granting language susceptible to at least two reasonable but conflicting meanings. Rather, it seems that the Landowners would have us simply insert the words “incidental to and designed for use only in connection with the operation of such lines” into the granting language immediately following “a buried fiber optic communications cable.” Again, this we may not do. See § 1-4-101, MCA.
¶75 In sum, the Landowners have not shown that an ambiguity exists in the right-of-way agreements. The three circumstances proffered by the Landowners, even when they are considered collectively, do not demonstrate that the granting language is susceptible to at least two reasonable but conflicting meanings. Accordingly, we hold that the District Court did not err in concluding that the granting language is unambiguous.
¶76 Issue 5. Did the District Court err in determining that there is no genuine issue as to any material fact?
¶77 The Landowners’ final “alternative” argument is that there are genuine issues of material fact precluding summary judgment for either side. The Landowners cite Proctor v. Werk, 220 Mont. 246, 250, 714 P.2d 171, 173 (1986), in which this Court stated that “[s]ummary judgment is usually inappropriate where the intent of the contracting parties is an important consideration” (internal quotation marks omitted). Cenex agrees that if we determine that extrinsic evidence is necessary to determine the parties’ intent in entering into the right-of-way agreements, then summary judgment is not appropriate. However, they maintain that the disputed language of the right-of-way agreements is unambiguous and, thus, that there are no genuine issues of material fact. We agree with Cenex.
¶78 The Landowners’ argument that there are genuine issues of material fact precluding summary judgment is premised on the theory that the language of the right-of-way agreements is ambiguous; however, we concluded under Issue 4 that the disputed language is not ambiguous, and we perceive no other genuine issues of material fact. “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible.” Section 28-3-303, MCA. “The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.” Section 28-3-401, MCA. Here, the disputed language of the right-of-way agreements is clear and explicit and is not alleged to involve an absurdity. Furthermore, it is possible to ascertain the intention of the parties from that language alone. The language provides that the Landowners grant Cenex “the right to construct, maintain, inspect, operate, protect, repair, replace, change the size of or remove a pipeline or pipelines or other appurtenances, for the transportation of oil, liquids and/or gases and the products thereof, together with a buried fiber optic communications cable.” Cenex’s use of the fiber optic cable is not restricted by these words to operating and monitoring the pipeline. To the extent that the Landowners intended such a meaning or understood the language as providing for such a meaning, that intent simply is not expressed in the right-of-way agreements, the validity of which the Landowners have not challenged (see ¶ 73 n.8, supra).
¶79 Given that the granting language is unambiguous, the District Court’s duty was to apply that language as written. Ophus, ¶ 23; Carelli, 279 Mont. at 209, 926 P.2d at 761. The court did so and determined that the right-of-way agreements (1) grant Cenex an easement to bury a fiber optic cable on the Landowners’ properties, (2) does not limit the use of the fiber optic cable to operating and monitoring the pipeline, and (3) gives Cenex the right to assign any of its rights, in whole or in part, to any third party. Accordingly, the court concluded that Cenex was not in breach of the right-of-way agreements and that Cenex was entitled to judgment as a matter of law. We agree with this conclusion and, thus, affirm the District Court’s judgment granting Cenex’s motion for summary judgment and denying the Landowners’ motion for partial summary judgment. Further, given this conclusion, we agree with the District Court’s decision to deny as moot the Landowners’ motion for class certification.
CONCLUSION
¶80 Pursuant to § 1-4-102, MCA, objective evidence of “the circumstances under which [an instrument] was made, including the situation of the subject of the instrument and of the parties to it,” may be shown and considered for the purpose of aiding the court in determining, as a preliminary matter, whether the instrument contains an ambiguity. The District Court erred to the extent it understood § 1-4-102 as precluding consideration of such evidence. However, the surrounding circumstances proffered by the Landowners in this case do not demonstrate that the granting language is ambiguous. Thus, the District Court ultimately reached the correct conclusion that the granting language of the right-of-way agreements is unambiguous. ‘We affirm district court decisions which are correct regardless of the court’s reasoning in reaching the decision.” Clark v. Eagle Systems, Inc., 279 Mont. 279, 286, 927 P.2d 995, 999 (1996); accord In re Marriage of Rolf, 2003 MT 194, ¶ 41, 316 Mont. 517, ¶ 41, 75 P.3d 770, ¶ 41 (“[W]e will affirm a district court’s decision when it reaches the correct result for the wrong reasons.” (internal quotation marks omitted)).
¶81 Because the granting language is unambiguous, the District Court was not required to interpret that language in the light most favorable to the Landowners. Likewise, the court properly refused at this point to consider surrounding circumstances for the purpose of applying the granting language. Lastly, the court correctly determined that the term “together with,” as used in the granting language, does not unambiguously limit Cenex’s use of the fiber optic cable to operating and monitoring the pipeline. In light of this determination, the District Court did not err in granting Cenex’s motion for summary judgment and denying the Landowners’ motion for partial summary judgment and motion for class certification.
¶82 Affirmed.
JUSTICES COTTER, WARNER, RICE and MORRIS concur.
Front Range Pipeline, L.L.C., is a wholly-owned subsidiary of Cenex Harvest States Cooperatives, Inc.
Sections 28-2-904 and -905(1), MCA, are Montana’s articulation of the parol evidence rule. See Savik v. Entech, Inc., 278 Mont. 152, 156, 923 P.2d 1091, 1094 (1996). As a general proposition, the parol evidence rule “prohibits the admission of extrinsic evidence of prior or contemporaneous oral agreements, or prior written agreements, to explain the meaning of a contract when the parties have reduced their agreement to an unambiguous integrated writing.” Williston on Contracts § 33:1, at 541; see also Black’s Law Dictionary 1139 (Bryan A. Garner ed., 7th ed., West 1999) (defining the parol evidence rule as “[t]he principle that a writing intended by the parties to be a final embodiment of their agreement cannot be modified by evidence that adds to, varies, or contradicts the writing’).
Similarly, § 28-3-402, MCA, provides that “[a] contract may be explained by reference to the circumstances under which it was made and the matter to which it relates,” and § 28-2-905(2), MCA, provides that the parol evidence rule, as articulated in § 28-2-905(1), MCA, “does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as described in 1-4-102.”
See Revised Laws of the State of California, Code of Civil Procedure, Reported by Commissioners, at 464 (1871). Our research discloses that “N. Y. C. C. P. § 1693,” to which § 1860 of the Code of Civil Procedure of California is credited, is most likely a reference to the proposed New York Code of Civil Procedure. See John T. Fitzpatrick, Procedural Codes of the State of New York, 17 Law Lib. J. 12, 16 (1924) (noting that the Code of Civil Procedure submitted December 31, 1849, never became law in New York).
We note that there may be other purposes for which evidence of surrounding circumstances is admissible. See, e.g., Weinberg v. Farmers State Bank of Worden, 231 Mont. 10, 24-25, 752 P.2d 719, 728-29 (1988) (consideration of surrounding circumstances proper to establish the existence of an agreement between the parties); Anderson v. Baker, 196 Mont. 494, 500-03, 641 P.2d 1035, 1038-40 (1982) (consideration of surrounding circumstances proper to ascertain the intent of depositor when she added her son’s name to signature cards drafted by the depository institution). However, we need not articulate here a comprehensive list of the situations in which § 1-4-102, MCA, might apply. Rather, we will confine our discussion to the applications of § 1-4-102 raised by the parties in the case at hand.
The same is true of the similar statements in Ryan, 146 Mont. at 303, 406 P.2d at 375 (stating that R.C.M. 1947, § 93-401-17 (now § 1-4-102, MCA) “is applicable only when the instrument requires construction”), and First Nat. Bank of Plains v. Green Mountain Soil Con. Dist., 130 Mont. 1, 5, 293 P.2d 289, 291 (1956) (stating that R.C.M. 1947, § 93-401-17 “allows the circumstances under which a contract was made to be shown only for the proper construction of the instrument”).
In this regard, Cenex cites Olson v. Jude, 2003 MT 186, ¶ 47, 316 Mont. 438, ¶ 47, 73 P.3d 809, ¶ 47, DeNiro v. Gasvoda, 1999 MT 129, ¶ 29, 294 Mont. 478, ¶ 29, 982 P.2d 1002, ¶ 29, In re Estate of Kuralt, 1999 MT 111, ¶ 30, 294 Mont. 354, ¶ 30, 981 P.2d 771, ¶ 30, and Downs v. Smyk, 200 Mont. 334, 346, 651 P.2d 1238, 1244 (1982), for the proposition that “[t]his Court has consistently applied § 1-4-102, MCA, only where there has been ambiguity or uncertainty with respect to an instrument” (emphasis added). Given our analysis in Tester, however, Cenex’s assertion is incorrect. Nevertheless, we note that Olson, DeNiro, Kuralt, and Downs are consistent with the foregoing clarifications of the applicability of § 1-4-102, MCA.
It is important to clarify here that our reasoning is specific to the question of whether the Landowners’ proffered “circumstances” establish an ambiguity in the granting language, not the question of whether the right-of-way agreements are valid in the first place. The Landowners’ briefs are peppered with assertions that the agreements were procured by Cenex using “deceit” and “threat” and that the Landowners were “duped.” Yet, their Complaint did not set forth a claim challenging the validity or accuracy of the agreements. See, e.g., § 28-2-1711(1), MCA (providing that a party to a contract may rescind the same if the party’s consent was given by mistake or obtained through duress, menace, fraud, or undue influence). Rather, the Landowners sought only to enforce their interpretations of the agreements. To do so, however, they may not use extrinsic evidence of prior oral agreements to explain the meaning of, or to add words to, otherwise unambiguous granting language. See §§ 28-2-904 and -905(1), MCA.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶ 1 David and Alexandria Giambra (collectively, “the Giambras”) filed suit on behalf of their minor son, Zadkiel Giambra (“Zadkiel”), against Craig and Christine Kelsey (collectively, “the Kelseys”) and their son, Nicholas Kelsey (“Nicholas”), in the Sixth Judicial District Court, Park County, seeking to recover damages arising out of a personal injury accident. The Kelseys and Nicholas then filed a counterclaim against the Giambras. Before the case was submitted to the jury, Zadkiel was added as a real party in interest. The court then determined that the Kelseys were not negligent and dismissed them from the case. Further, the court also determined that the Giambras were not negligent, dismissed the Kelseys’ counterclaim, and dismissed the Giambras from the case. The case then went to the jury as Zadkiel Giambra v. Nicholas Kelsey.
¶2 The jury awarded Zadkiel compensatory damages for medical expenses, but did not award compensatory damages for pain and suffering. The jury returned a special verdict finding Zadkiel forty percent negligent and Nicholas sixty percent negligent. Accordingly, the District Court reduced the jury’s award by forty percent. Zadkiel filed a Rule 59 Motion for a New Trial, but the District Court did not rule on this motion. Zadkiel appeals. We affirm.
¶3 Zadkiel states two issues on appeal, but raises a number of issues within his arguments. We therefore restate the issues as follows:
1. Did the District Court err when it failed to grant Zadkiel’s Rule 59 Motion for a New Trial based on the jury’s award of zero compensatory damages for pain and suffering?
2. Did the District Court abuse its discretion when it refused to permit the issue of compensatory damages for emotional distress and loss of course of life to go to the jury?
3. Did the District Court err in determining that a claim of negligence per se does not preclude the defense of contributory negligence?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Although this Court received no trial transcript, we have discerned the following facts from the District Court exhibits and the District Court record.
¶5 This action stems from an accident which occurred on November 11, 2000, in Livingston, Montana. Zadkiel and four other boys were sledding in Livingston on West Gallatin Street, a paved roadway, near its intersection with North Second Street. The section of West Gallatin Street where the boys were sledding, also known as Yellowstone Hill or the North Short Hill, has a very steep incline. West Gallatin Street was closed to vehicular traffic on November 11, 2000, because it was snow-packed and covered with glare ice.
¶6 After driving by and observing the boys sledding in the street, Christine Kelsey sent Nicholas to drive down Yellowstone Hill to tell the boys to stop sledding because it was too dangerous. Christine was concerned that other drivers might not heed the road closure signs. Nicholas was seventeen years old at the time and apparently had had his driver’s license for a short amount of time.
¶7 Nicholas drove the Kelsey’s full-size 1988 Ford Bronco (“the Bronco”) down the hill. He stopped to speak with some of the boys and told them to stop sledding in the street. Nicholas then resumed his travel down the hill. Precisely how Zadkiel ended up in front of the Bronco is unclear. Without a transcript, we simply observe that the parties’ briefs paint two different pictures. Zadkiel suggests that at approximately the same time as Nicholas resumed driving down the hill, Zadkiel got on his sled and started to sled down the hill. Nicholas posits that Zadkiel jumped on his sled in an attempt to race the Bronco to the bottom of the hill. Regardless, Zadkiel apparently then fell off of his sled in front of the Bronco that Nicholas was driving.
¶8 Nicholas did not see Zadkiel lying in the roadway and proceeded to drive forward. The right front tire of the Bronco rolled over Zadkiel’s chest. Zadkiel passed under the Bronco as Nicholas struggled to stop the Bronco.
¶9 An ambulance arrived at the scene of the accident and the paramedics found Zadkiel lying on packed snow and ice. According to reports filed by the paramedics, Zadkiel experienced difficulty breathing and complained of pain in his right chest, upper abdomen, and middle back. However, Zadkiel’s airway was open and there were no visible broken bones.
¶10 Zadkiel was transported via ambulance to Livingston Memorial Hospital (“Livingston Memorial”). Zadkiel apparently remained conscious and alert throughout the entire ordeal and remembered his chest being rolled over by one wheel of the Bronco. Doctors in the emergency room at Livingston Memorial diagnosed Zadkiel with chest wall and upper abdomen trauma. A chest x-ray revealed that Zadkiel’s right lung had collapsed and a CT scan confirmed that there was air and blood in his chest cavity. Zadkiel also suffered an injury to his lung causing blood to collect in the lung, a loss of normal lung structure and function, and impaired gas exchange. The CT scan revealed that the right lobe of Zadkiel’s liver was bruised, tom, and bleeding.
¶11 Doctors in Livingston Memorial’s emergency room inserted a tube into Zadkiel’s chest and drained blood and fluid from the chest cavity. Zadkiel was given a local anesthetic and morphine for pain. He was then flown from Livingston Memorial to Billings Deaconess Hospital (“Deaconess”) in an Air Ambulance.
¶12 Zadkiel’s chest tube was removed on November 12, 2000. He remained in Deaconess until November 14,2000, was discharged on a regular diet, and was not prescribed any medications. Additionally, Zadkiel was instructed to stay out of school until after Thanksgiving and to stay home for the next two weeks. Zadkiel’s medical expenses were $13,480.12 in total.
¶13 The Giambras filed suit on August 9, 2001, in District Court, alleging the following in their complaint: first, that Nicholas was negligent per se in failing to comply with state statutory laws governing the operation of a motor vehicle; second, that the Kelseys were negligent in entrusting the Bronco to Nicholas; and third, that the Kelseys’ actions constituted actual malice. The Giambras further alleged that Nicholas’ negligence per se and the Kelsey’s negligence and actual malice were the cause of Zadkiel’s personal injuries, pain and suffering, and loss of course of life.
¶14 On April 29, 2004, the District Court granted the Kelseys’ and Nicholas’ motion to amend their original answer and assert a counterclaim against the Giambras. In their counterclaim, the Kelseys and Nicholas alleged that the Giambras knew or should have known that Zadkiel was sledding in the street and that such conduct was unlawful and dangerous. They further alleged that the Giambras were negligent in their supervision of Zadkiel. However, the Kelseys and Nicholas alleged no injury to themselves as a result of the Giambras’ supposed negligence.
¶15 The parties proceeded to trial on February 16,2005. According to the parties’ appellate briefs, Nicholas admitted during the trial that he was negligent. Therefore, at the close of evidence and before the jury was instructed, the Giambras moved for partial summary judgment, based on the premise that a claim of negligence per se bars the defense of contributory negligence. The District Court denied the motion. The court noted that it would instruct the jury to decide whether Zadkiel was negligent and to what degree.
¶16 The District Court provided the following instructions, which are pertinent to the issues at hand. First, on the issue of pain and suffering, the court gave Instruction 22:
Your award should include reasonable compensation for any pain and suffering experienced by plaintiff.
The law does not set a definite standard by which to calculate compensation for mental and physical pain and suffering. Neither is there any requirement that any witness express an opinion about the amount of compensation that is appropriate for this kind of loss. The law does require, however, that when making a finding of damages for pain and suffering, you shall exercise calm and reasonable judgment.
The compensation must be just and reasonable.
¶17 Second, the District Court gave Instruction 15, which stated that “[ejvery driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or with any person operating a bicycle upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child upon a roadway.” (This instruction was modeled after § 61-8-504, MCA, and Livingston City Ordinance 9-320.)
¶18 Third, the court gave Instruction 19:
The Livingston City Ordinances provided:
“No person shall play football, baseball, tennis, or any other game or any form of sport or amusement on any of the streets or on any of the boulevards or parkings along any of the streets of the city.”
¶19 Lastly, the District Court gave Instruction 17, which stated that “[n]egligence on the part of the plaintiff does not bar his/her recovery unless such negligence was greater than the negligence of the defendant.”
¶20 The jury returned a special verdict finding that Nicholas violated the rule of law set forth in Instruction 15. The jury also found that Zadkiel was negligent and that his negligence was, in part, the cause of his injuries. The jury further found that Nicholas was sixty percent negligent and Zadkiel was forty percent negligent. Lastly, the jury awarded Zadkiel compensatory damages for medical expenses, but did not award Zadkiel compensatory damages for pain and suffering. The District Court reduced the jury’s award by forty percent to reflect the jury’s finding that Zadkiel was forty percent negligent under the comparative negligence scheme.
¶21 On March 8,2005, Zadkiel filed a Rule 59 Motion for a New Trial and argued that his motion should be granted for three reasons. First, Zadkiel argued that the District Court incorrectly struck from his proposed special verdict form the damage elements of emotional distress and loss of established course of life. Second, Zadkiel challenged the jury verdict awarding him zero compensatory damages for pain and suffering. In his motion, Zadkiel contended that the jury’s award of zero compensatory damages for pain and suffering was not supported by substantial evidence and was so unreasonable as to “shock the conscious [sic].” Third, Zadkiel argued that the court erred in instructing the jury to apportion negligence liability between Zadkiel and Nicholas.
¶22 The District Court did not rule on the motion within sixty days and, pursuant to M. R. Civ. P. 59(d), “[i]f the court shall fail to rule on a motion for new trial within 60 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.” Thus, Zadkiel’s motion was deemed denied.
¶23 Although Zadkiel filed a notice of appeal on May 9,2005, he failed to submit a trial transcript to this Court for purposes of appeal. Zadkiel’s Notice of Appeal stated that “[t]his appeal raises questions which will be reviewed de novo to determine if the [District Cotut] correctly applied the law and so no portions of the transcript not already on file will be ordered.” We note, however, that there are no portions of the trial transcript on file.
STANDARD OF REVIEW
¶24 Our research concerning this Court’s standard of review of a district court’s ruling on a motion for a new trial, where the basis of the motion is insufficiency of the evidence, has revealed incompatible standards. In Brookings v. Thompson, 248 Mont. 249, 811 P.2d 64 (1991), we stated that “[t]he decision to grant a new trial is within the sound discretion of the trial judge and will not be overturned absent a showing of manifest abuse of discretion.” Brookings, 248 Mont. at 251, 811 P.2d at 65. We went on to state, however, that “[t]his Court’s function is to determine if there is substantial credible evidence in the record to support the jury’s verdict.” Brookings, 248 Mont. at 251, 811 P.2d at 65. Thus, we provided for simultaneous deferential review and an independent examination of whether the verdict was supported by substantial credible evidence. We have articulated this approach in numerous other cases.
¶25 Our thinking behind this approach is illustrated by our decision in Barnes v. United Industry, Inc., 275 Mont. 25, 909 P.2d 700 (1996), where we reasoned that “the District Court showed no abuse of discretion because there was sufficient evidence to support the jury’s verdict.” Barnes, 275 Mont. at 34, 909 P.2d at 706. This reasoning, however, is dubious given our recent clarification of the nature of a district court’s determination concerning the sufficiency of the evidence.
¶26 “A district court may grant a motion for a new trial if there is insufficient evidence to justify the jury’s verdict.” Delaware v. K-Decorators, Inc., 1999 MT 13, ¶ 43, 293 Mont. 97, ¶ 43, 973 P.2d 818, ¶ 43 (citing § 25-11-102(6), MCA). “Conversely, where substantial evidence supports a verdict, the verdict generally cannot be overturned or vacated.” Thompson v. City of Bozeman, 284 Mont. 440, 442, 945 P.2d 48, 49 (1997) (citing Thayer v. Hicks, 243 Mont. 138, 156, 793 P.2d 784, 795 (1990)). In Johnson v. Costco Wholesale, 2007 MT 43, 336 Mont. 105, 152 P.3d 727, in the context of clarifying our standard of review of a district court’s ruling on a motion for judgment as a matter of law, we characterized “the assessment of the sufficiency of the evidence” as a question of law. Johnson, ¶ 19. We further explained:
Since the assessment of the sufficiency of the evidence and the application of the law to that assessment cannot involve discretion-i.e., since no deference is given to the trial court-the question is one of law to which the de novo or plenary standard of review applies.
Johnson, ¶ 19. Likewise, in State v. Swann, 2007 MT 126, 337 Mont. 326, 160 P.3d 511, in the context of discussing the directed verdict statute (§ 46-16-403, MCA), we clarified the nature of a district court’s determination concerning the sufficiency of the evidence as follows:
A District Court’s conclusion as to whether sufficient evidence exists to convict is ultimately an analysis and application of the law to the facts, and as such is properly reviewed de novo. There either is, or is not, sufficient evidence to convict, and the determination is not a matter of discretion. Consequently, we now hold that the proper standard of review for denial of a motion for a directed verdict is de novo. We overrule our prior cases to the extent they stand for a different standard of review.
Swann, ¶ 19. The reasoning of Johnson and Swann applies equally to a motion for a new trial based on insufficiency of the evidence. See State v. Berger, 1998 MT 170, ¶ 25, 290 Mont. 78, ¶ 25, 964 P.2d 725, ¶ 25 (‘We review the denial of a motion for directed verdict in the same manner that we review the sufficiency of evidence to support a conviction.”). There either is, or is not, sufficient evidence to support the verdict, and this determination is not a matter of discretion.
¶27 Accordingly, we overrule the cases cited in ¶¶ 24-25 and footnote 2 above, to the extent those cases state our standard of review of a district court’s ruling on a motion for a new trial, where the basis of the motion is insufficiency of the evidence, as manifest abuse of discretion (or simply abuse of discretion). Our review of a district court’s ruling on a motion for a new trial where the basis of the motion is insufficiency of the evidence is de novo. Like the district court, we determine whether there was substantial evidence to support the verdict. Renville v. Taylor, 2000 MT 217, ¶ 14, 301 Mont. 99, ¶ 14, 7 P.3d 400, ¶ 14 (citing Brockie, 268 Mont. at 522, 887 P.2d at 169).
¶28 The use of a special verdict form, by contrast, is a discretionary trial court ruling, which we review for abuse of discretion. Ele v. Ehnes, 2003 MT 131, ¶ 18, 316 Mont. 69, ¶ 18, 68 P.3d 835, ¶ 18 (citing Barthule v. Karman, 268 Mont. 477, 488, 886 P.2d 971, 978 (1994)). Likewise, we review a district court’s decision to give or refuse to give proffered jury instructions for an abuse of discretion. Bugger v. McGough, 2006 MT 248, ¶ 20, 334 Mont. 77, ¶ 20, 144 P.3d 802, ¶ 20 (citing Kiely Const., L.L.C. v. City of Red Lodge, 2002 MT 241, ¶¶ 57, 62, 312 Mont. 52, ¶¶ 57, 62, 57 P.3d 836, ¶¶ 57, 62). Finally, we review a district court’s conclusions of law de novo to determine whether they are correct. Shults v. Liberty Cove, Inc., 2006 MT 247, ¶ 9, 334 Mont. 70, ¶ 9, 146 P.3d 710, ¶ 9; State v. Boulton, 2006 MT 170, ¶ 10, 332 Mont. 538, ¶ 10, 140 P.3d 482, ¶ 10 (citing State v. Ray, 2003 MT 171, ¶ 34, 316 Mont. 354, ¶ 34, 71 P.3d 1247, ¶ 34).
DISCUSSION
¶29 1. Did the District Court err when it failed to grant Zadkiel’s Rule 59 Motion for a New Trial based on the jury’s award of zero compensatory damages for pain and suffering?
¶30 Zadkiel based his Rule 59 Motion for a New Trial, in part, on the jury’s award of zero compensatory damages for pain and suffering. Zadkiel cites Renville v. Taylor, 2000 MT 217, 301 Mont. 99, 7 P.3d 400, and Thompson v. City of Bozeman, 284 Mont. 440, 945 P.2d 48 (1997), to support his assertion that the District Court erred in not granting this motion. “We have previously held that ‘where a jury fails to award any damages when the only evidence of record supports an award, that verdict is not supported by substantial evidence and may be set aside.’ ” Renville, ¶ 24 (emphasis added) (citing Thompson, 284 Mont. at 446, 945 P.2d at 52).
¶31 Zadkiel argues that his Rule 59 Motion for a New Trial was well-supported by uncontroverted and uncontradicted evidence of pain and suffering. Indeed, Zadkiel asserts no less than fourteen times (but without corresponding citations to the record) that the evidence of his pain and suffering was uncontroverted. Zadkiel additionally repeats at least twelve times that the undisputed result of Zadkiel’s being driven over by the Bronco was injuries to his lung and liver. Therefore, Zadkiel maintains, the jury’s award of zero compensatory damages for pain and suffering was not supported by, and was in fact contrary to, the evidence.
¶32 To support this rather lofty proposition without a trial transcript, Zadkiel notes that the District Court received hundreds of pages of medical records and bills that documented the precise nature and consequences of the injuries Zadkiel suffered after being run over by the Bronco. Zadkiel further notes that the jury heard testimony from, among others, the Giambras, doctors at Livingston Memorial, and Officer Dale Johnson, the police officer who responded to the accident. ¶33 Additionally, Zadkiel contends that a new trial is necessary to protect his constitutional guarantee to full legal redress, based on § 25-11-102(6), MCA, which states that a verdict may be vacated and a new trial granted for “insufficiency of the evidence to justify the verdict.” Again, Zadkiel argues generally that the evidence of pain and suffering was uncontroverted and that a jury cannot disregard the evidence and award nothing for pain and suffering.
¶34 In response to Zadkiel’s contentions that evidence of his pain and suffering was uncontradicted and that there exists substantial credible evidence of pain and suffering, Nicholas argues that M. R. App. P. 9(b), required Zadkiel to submit a trial transcript to this Court or follow the alternative procedures set forth in M. R. App. P. 9(b). M. R. App. P. 9(b) states:
Absent a stipulation filed with the clerks of the supreme court and the district court pursuant to Rule 54(c), within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of all the proceedings not already on file for inclusion in the record.
We note, however, that if, as in the case at hand, “the appellant determines, on the basis of the issues raised on appeal, that the entire transcript is not necessary,” the appellant must do three things within the ten day period provided by Rule 9: first, the appellant must order the parts of the transcript that the appellant deems necessary for the appeal; second, the appellant must serve on the respondent a description of the parts of the transcript the appellant deems unnecessary for the appeal; and third, the appellant must serve on the respondent a statement of the issues which the appellant intends to present on appeal. M. R. App. P. 9(b). Nicholas notes that Zadkiel did not follow these alternative procedures.
¶35 Aside from the mandate of Rule 9, Nicholas points out that Zadkiel’s appellate brief does not conform to his Notice of Appeal. Namely, Zadkiel’s Notice of Appeal states that only issues of law will be raised on appeal; however, Zadkiel argues in his brief that there exists substantial credible evidence of pain and suffering. Nicholas maintains, therefore, that Zadkiel has asked this Court to overturn a jury verdict and order a new trial without allowing this Court to review the trial transcript. Nicholas notes, ironically, that this Court is not even able to review Zadkiel’s statements about his own purported pain and suffering because a transcript of Zadkiel’s testimony on this issue does not appear in the District Court record. Finally, Nicholas argues that if this Court were to overturn the jury’s verdict, this Court would be basing its decision solely on Zadkiel’s counsel’s own assumption that compensable pain and suffering occurred.
¶36 Nicholas’ arguments are well-taken. M. R. App. P. 9(a) provides that
[i]t is the duty of a party seeking review of a judgment, order or proceeding to present the supreme court with a record sufficient to enable it to rule upon the issues raised. Failure to present the court with a sufficient record on appeal may result in dismissal of the appeal and/or the imposition of some other appropriate sanction.
We have repeatedly stated that if an appellant seeks to challenge the sufficiency of the evidence supporting a verdict, the appellant must provide this Court with a trial transcript, sufficient portions of a trial transcript, or a record sufficient to enable this Court to rule upon the issues raised. See Gentry Montana Enterprises, Inc. v. McDonald, 2004 MT 322, ¶ 39, 324 Mont. 67, ¶ 39, 101 P.3d 767, ¶ 39; Huffine v. Boylan, 239 Mont. 515, 517, 782 P.2d 77, 78 (1989); Harrington v. Harrington, 181 Mont. 541, 542, 594 P.2d 319, 320 (1979); Yetter v. Kennedy, 175 Mont. 1, 5-7, 571 P.2d 1152, 1155-56 (1977). “ ‘[T]he burden of showing error by reference to matters of record is upon the appellant.’ ” Huffine, 239 Mont. at 517, 782 P.2d at 78 (quoting Yetter, 175 Mont. at 7, 571 P.2d at 1156). In this case, Zadkiel relies on District Court minutes and evidence of his injuries, as opposed to evidence of pain and suffering, to support his claim that there exists uncontroverted evidence of pain and suffering. This Court has sifted through each page of an approximately 390-page District Court record and another 150 pages of medical records, bills, and exhibits and, except as referred to in ¶ 9, has discovered no other evidence of pain and suffering. Thus, the trial transcript was essential to this appeal. We therefore cannot address the merits of Zadkiel’s appeal with regards to this issue.
¶37 2. Did the District Court abuse its discretion when it refused to permit the issue of compensatory damages for emotional distress and loss of course of life to go to the jury ?
¶38 Zadkiel argues that he was “entitled to have the jury consider a monetary award for the general damages of emotional distress and loss of course of life.” Zadkiel informs us that the District Court indicated that it would not allow the jury to consider awarding compensatory damages for emotional distress and loss of course of life. Zadkiel’s brief directs this Court to the District Court minutes, but at the same time acknowledges that the minutes contain no entry describing the District Court’s decision on this matter. According to Zadkiel, “[cjlearly having one’s lung crushed, liver lacerated and remaining hospitalized for a period of days has the natural and inescapable consequence of causing emotional distress and a loss of course of life.” Further, Zadkiel suggests that “[rjeasonable men and women could reach no other conclusion” and therefore, the District Court abused its discretion in refusing to allow the jury to award compensatory damages for emotional distress and loss of course of life on the special verdict form. He argues that because the evidence of his emotional distress and loss of course of life is supposedly uncontroverted, this Court must reverse and order a new trial.
¶39 Additionally, Zadkiel contends that the District Court’s decision to refuse to allow the jury to award compensatory damages for emotional distress and loss of course of life violated Zadkiel’s constitutional right to full legal redress. According to Zadkiel, Article II, Section 16 of the Montana Constitution provides for a “mandatory and self-executing” guarantee of full legal redress. He cites Hill v. Chappel Bros. of Montana, 93 Mont. 92, 18 P.2d 1106 (1932), for his contention that the guarantee of full legal redress includes the right to be compensated for special damages and all cognizable general damages which naturally and necessarily result from an injury. Zadkiel maintains that because the evidence of his injuries was uncontroverted, his injuries “necessarily and naturally” caused “some inevitable degree of emotional distress and disruption of the natural course of life.” Therefore, according to Zadkiel, the jury was required to award compensatory damages for emotional distress and loss of course of life and the District Court violated his constitutional right to full legal redress by not allowing the jury to do so.
¶40 In response, Nicholas reiterates that Zadkiel has not provided this Court with a trial transcript. Nicholas argues that, once again, Zadkiel is attempting to challenge the sufficiency of the evidence without providing this Court with a sufficient record upon which to rule. Further, Nicholas asserts that Zadkiel did not even offer any instructions on compensatory damages for emotional distress or loss of course of life. According to Nicholas, Zadkiel offered seven proposed jury instructions, but these seven instructions did not address issues of emotional distress or loss of course of life. Nicholas cites M. R. Civ. P. 51, which states that “[n]o party may assign as error the failure to instruct on any point of law unless that party offers an instruction thereon.” Alternatively, Nicholas argues that the evidence suggests that Zadkiel did not suffer any permanent injury or loss of course of life. Finally, contrary to Zadkiel’s assertion that the right to recover compensatory damages for emotional distress and loss of course of life is “mandatory and self-executing,” Nicholas maintains that Zadkiel must prove his claim by a preponderance of the evidence.
¶41 As stated above, we review a district court’s decision to give or refuse to give proffered jury instructions and to use a special verdict form for an abuse of discretion. Because Zadkiel did not supply a transcript for purposes of this appeal, because he did not offer jury instructions on this claim, and because his proposed special verdict form is not in the record, we will not consider his claim on appeal that the District Court’s decision not to allow the jury to award compensatory damages for emotional distress and loss of course of life was an abuse of discretion and violated his constitutional right to full legal redress. We therefore decline to address the merits of Zadkiel’s appeal with regards to this issue.
¶42 3. Did the District Court err in determining that a claim of negligence per se does not preclude the defense of contributory negligence?
¶43 Zadkiel argues that the defense of contributory negligence is not available in a negligence per se case; therefore, Zadkiel contends, a jury instruction on contributory negligence is inapplicable when a party proceeds under a claim of negligence per se and that there is no apportionment of negligence liability when the fact-finder determines that a party has been negligent per se. The crux of Nicholas’ arguments in response is that a claimed statutory violation which constitutes negligence per se or the determination that a party to an action has been negligent per se does not bar the defense of contributory negligence unless the statute so specifies. As a preliminary matter, we set forth the background of the law of contributory negligence, comparative negligence, and negligence per se.
¶44 Contributory negligence is “conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.” W. Page Keeton et al., The Law of Torts, § 65, at 451 (5th ed., West 1984). The traditional rule is that contributory negligence was a complete bar to the plaintiffs claim. Dan B. Dobbs, The Law of Torts vol. 1, § 199, at 494 (West 2001); see also Reed v. Little, 209 Mont. 199, 205, 680 P.2d 937, 941 (1984) (stating that “[u]nder the old contributory negligence rule, a plaintiff could not recover if the plaintiff were negligent in any degree”). However, “[c]omparative negligence compares the conduct of the parties “based on evidence and contributory negligence, as established by reasonable and prudent person standards.’ ” Faulconbridge v. State, 2006 MT 198, ¶ 99, 333 Mont. 186, ¶ 99, 142 P.3d 777, ¶ 99 (quoting Lewis v. Puget Sound Power & Light Co., 2001 MT 145, ¶ 25, 306 Mont. 37, ¶ 25, 29 P.3d 1028, ¶ 25). Under apure comparative negligence scheme, “no plaintiff is completely barred from recovery because of her contributory negligence.” Dobbs, The Law of Torts § 201, at 505.
¶45 The Montana Legislature first adopted the comparative negligence rule in 1975. Reed, 209 Mont. at 203, 680 P.2d at 939. As now codified in § 27-1-702, MCA, in Montana, a plaintiffs contributory negligence is a defense to a charge of negligence, but “[c]ontributory negligence does not bar recovery in an action by a person” unless that person’s contributory negligence was “greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought.” Therefore, Montana’s comparative negligence scheme employs the “greater-than” version of comparative neghgence. See Dobbs, The Law of Torts § 201, at 505. Under § 27-1-702, MCA, a plaintiff may not recover if the plaintiff is found to be greater than fifty percent neghgent.
¶46 Neghgence per se is simply “[n]egligence established as a matter of law,” and neghgence per se usually “arises from a statutory violation.” Black’s Law Dictionary 1057 (Bryan A. Garner ed., 7th ed., West 1999).
One key distinction between neghgence per se and ordinary neghgence is that once a violation of a statute is proven, and the standards under VanLuchene [reciting the five criteria that a plaintiff must prove in a neghgence per se case in order to prevail] are met, a defendant is neghgent, as a matter of law. This contrasts to ordinary or common law neghgence where the element of duty is a question of law, but the element of breach is generally a question of fact suitable for resolution by the fact finder at trial.
Estate of Schwabe v. Custer’s Inn, 2000 MT 325, ¶ 25, 303 Mont. 15, ¶ 25, 15 P.3d 903, ¶ 25 (citing Estate of Strever v. Cline, 278 Mont. 165, 175, 924 P.2d 666, 672 (1996)). Additionally,
[t]he effect of such a rule [neghgence per se] is to stamp the defendant’s conduct as neghgence, with all of the effects of common law neghgence, but with no greater effect. There will still remain open such questions as the causal relationship between the violation and the harm to the plaintiff, and, in the ordinary case, the defenses of contributory negligence, and assumption of the risk.
Keeton, The Law of Torts § 36, at 230 (footnotes omitted) (emphasis added).
¶47 Zadkiel argues that the District Court erred when it failed to grant his Rule 59 Motion for a New Trial on the ground that the court inappropriately instructed the jury to consider the question of Zadkiel’s neghgence, when Nicholas had already admitted that he was neghgent. Zadkiel maintains that his claim of neghgence per se against Nicholas precludes an instruction on the defense of contributory neghgence and bars the apportionment of neghgence liability through a comparative neghgence scheme. In addition, Zadkiel contends that the jury found that Nicholas was neghgent per se when the jury returned the special verdict form stating that Nicholas violated the rule of law set forth in Instruction 15. Zadkiel argues that the jury’s determination that Nicholas was neghgent per se requires the District Court to award Zadkiel the full amount of compensatory damages for medical expenses awarded by the jury, not the amount of compensatory damages awarded by the jury reduced by forty percent. ¶48 In response, Nicholas maintains that this Court’s discussion of negligence per se and comparative negligence in the context of traffic statutes in Reed should control in this case and, therefore, that a violation of a traffic statute which constitutes negligence per se should not bar the defense of contributory negligence. In Reed, this Court held that “the defense of contributory negligence on plaintiffs part is available to a defendant who has violated a traffic statute.” Reed, 209 Mont. at 206, 680 P.2d at 940. This Court further noted that “[t]he fact that both parties may well have been guilty of statutory violations is a further reason for leaving the comparison of the negligence to the jury in this case.” Reed, 209 Mont. at 207, 680 P.2d at 941. According to Nicholas, the Reed Court analyzed § 27-1-702, MCA, and determined that even if a party violates a statute, both parties to an action can still be found partially responsible under Montana’s comparative negligence scheme.
¶49 We agree with Nicholas’ assertion that the violation of a traffic statute which constitutes negligence per se does not bar the defense of contributory negligence. In Reed, plaintiffs’ car was rear-ended when plaintiffs stopped suddenly after starting to drive through an intersection. Reed, 209 Mont. at 201-02, 680 P.2d at 938. Defendant violated § 61-8-329(1), MCA, which provides that “[t]he driver of a motor vehicle may not follow another vehicle more closely than is reasonable and prudent.” The jury returned a special verdict finding plaintiffs ninety percent negligent and defendant ten percent negligent. Reed, 209 Mont. at 202, 680 P.2d at 938-39. On appeal, plaintiffs argued that “negligence per se cannot be compared to ordinary negligence and that negligence per se can only be compared where both parties are guilty of statutory violations.” Reed, 209 Mont. at 204, 680 P.2d at 939. In response, defendant argued that “the defense of contributory negligence is still appropriate, leaving to the jury the comparison of the degree of negligence on the part of both parties.” Reed, 209 Mont. at 204, 680 P.2d at 939. We held that under Montana’s comparative negligence scheme, “the jury must consider evidence of negligence from violation of a highway traffic statute, which was a proximate cause of the accident, with other evidence of negligence on the part of both parties. The jury must then weigh or compare the negligence of both parties in reaching its verdict.” Reed, 209 Mont. at 207, 680 P.2d at 941.
¶50 We reaffirmed this holding in Edie v. Gray, 2005 MT 224, 328 Mont. 354, 121 P.3d 516. In Edie, this Court addressed plaintiffs’ claim that a finding of negligence per se bars the defense of contributory negligence and precludes the apportionment of negligence liability through a comparative negligence scheme. Plaintiffs argued that “comparative negligence was not an issue in this case because Gray was negligent per se.” Edie, ¶ 18. Relying on Reed, we stated the same general proposition that “even in negligence per se cases, the fact finder must apportion negligence between the two parties in reaching its verdict.” Edie, ¶ 19 (citing Reed, 209 Mont. at 206-07, 680 P.2d at 940-41).
¶51 Accordingly, in light of Reed and Edie, we now reaffirm the relationship between negligence per se and the apportionment of negligence liability under a comparative negligence scheme. We hold thatMontana’s comparative negligence scheme setforthin §§ 27-1-702 and -703, MCA, requires the fact-finder to consider the negligence of the claimant, injured person, defendants, and third-party defendants, even if a party proceeds under a claim of negligence per se or if the fact-finder determines that one or more persons was negligent per se. In the absence of an express statutory provision to the contrary, a claim of negligence per se or a determination that a person was negligent per se does not preclude the defense of contributory negligence or bar the apportionment of negligence liability based on a comparative negligence scheme.
¶52 Before concluding, it is necessary to address two additional arguments raised by Zadkiel. First, Zadkiel cites the following language from Estate of Schwabe v. Custer’s Inn, 2000 MT 325, ¶ 25, 303 Mont. 15, ¶ 25, 15 P.3d 903, ¶ 25, to support his assertion that a claim of negligence per se bars the defense of contributory negligence: “The breach of a statutory duty, under a negligence per se claim, may also carry the added advantage of foreclosing common law defenses.” Nicholas responds that this language is dicta. He argues that regardless of the gratuitous nature of this statement, the Schwabe Court was relying on cases that dealt with the Montana Scaffolding Act, which did not allow for the apportionment of negligence liability. Therefore, Nicholas suggests, this Court’s analysis in Schwabe does not bear on the facts of this case.
¶53 We agree with Nicholas. In Schwabe, this Court reviewed a district court’s determination that even if the defendant (“Custer’s Inn”) violated safety statutes or regulations, the plaintiff (“the Estate”) failed to demonstrate that the alleged negligence per se was the proximate cause of the drowning death of Mark Schwabe. Schwabe, ¶ 22. We stated that “[u]nder either theory of negligence [common law negligence or negligence per se], if the defendant’s conduct did not cause the alleged damages, the plaintiffs claim must fail as a matter of law.” Schwabe, ¶ 27.
¶54 In articulating the difference between common law negligence and negligence per se, we stated that “[t]he breach of a statutory duty, under a negligence per se claim, may also carry the added advantage of foreclosing common law defenses.” Schwabe, ¶ 25 (citing Steiner v. Department of Highways, 269 Mont. 270, 278, 887 P.2d 1228, 1233 (1994), in turn quoting Pollard v. Todd, 148 Mont. 171, 179-80, 418 P.2d 869, 873 (1966)). However, this general observation was unnecessary to this Court’s decision that under either a negligence per se claim or a common law negligence claim, the Estate failed to establish any material fact dispute that the conduct of Custer’s Inn was the proximate cause of Mark Schwabe’s death. As such, it is dicta.
¶55 More importantly, the foregoing statement in Schwabe, which relies on Steiner and Pollard, is dubious given the 1995 amendment to the Scaffolding Act, which was the basis of Steiner and Pollard. The Scaffolding Act, first set forth in § 69-1401, R.C.M., 1947, provides certain requirements for the construction of scaffolds to “insure the safety of persons working thereon or passing thereunder.” In Pollard, we held that the purpose of § 69-1401, R.C.M., 1947, was to impose “an absolute statutory duty upon the owners of real estate to protect workmen and others from the extraordinary hazards associated with scaffolds.” Pollard, 148 Mont. at 179, 418 P.2d at 873. Therefore, we stated that “[t]he mandatory nature of the statute forecloses the common-law defenses of assumption of the risk, contributory negligence, and negligence of a fellow servant.” Pollard, 148 Mont. at 179-80, 418 P.2d at 873.
¶56 In Steiner, we noted that “the breach of a contractual duty to assure that the subcontractor has provided appropriate scaffolding” involved provisions of the Scaffolding Act. Steiner, 269 Mont. at 278, 887 P.2d at 1233. The failure of the Montana Department of Highways (“MDOH”) “to comply with the provisions of the Montana Scaffolding Act was negligence per se.” Steiner, 269 Mont. at 278, 887 P.2d at 1233-34. Even though Steiner was contributorily negligent, and although “his gross negligence was more than 50 percent of the total negligence,” this Court held that, based on Pollard, a defense of contributory negligence was not available to MDOH. Steiner, 269 Mont. at 278, 887 P.2d at 1233-34.
¶57 In 1995, the Montana Legislature amended the Scaffolding Act, then codified as § 50-77-101, MCA. The revised language stated, in pertinent part, that “[s]ubject to the comparative negligence principles provided in Title 27, chapter 1, part 7, a contractor, subcontractor, or builder who uses or constructs a scaffold on a construction site is liable for damages sustained by any person who uses the scaffold.” In effect, the 1995 revisions made the Scaffolding Act subject to the comparative negligence scheme codified in § 27-1-702, MCA. The holding of Pollard, repeated in Steiner and Schwabe, that the breach of a statutory duty under a negligence per se claim may also foreclose the common law defense of contributory negligence, was therefore abrogated by the 1995 amendment to the Scaffolding Act.
¶58 Nicholas argues, and we agree, that Zadkiel’s assertion that the reasoning of Pollard, Steiner, and Schwabe precluded the District Court from instructing the jury to apportion negligence liability between Nicholas and Zadkiel is without merit. In the absence of an express statutory declaration that makes §§ 27-1-702 and -703, MCA, inapplicable, a claim of negligence per se or a determination that a person was negligent per se does not preclude the defense of contributory negligence or bar the apportionment of negligence liability based on a comparative negligence scheme. The statement in Schwabe that “[t]he breach of a statutory duty, under a negligence per se claim, may also carry the added advantage of foreclosing common law defenses,” Schwabe, ¶ 25, is overruled.
¶59 Second, Zadkiel relies on Woods v. Burlington Northern and Santa Fe Ry., 2004 MT 332, 324 Mont. 151, 104 P.3d 1037, to support his contention that a claim of negligence per se precludes an instruction on the defense of contributory negligence. According to Zadkiel, he based his argument against the District Court instructing on the defense of contributory negligence on the “latest authority on the statutory liability of negligence per se” as follows:
Nicholas Kelsey was negligent per se for failing to use the proper precaution and negligent per se for failing to give a warning of his intentions when children were present in and around the roadway. Negligence per se is a bar to claims of contributory and comparative negligence. Woods v. Burlington Northern and Santa Fe Ry., 2004 MT 332, 324 Mont. 151, 104 P.2d 1037. The contributory negligence instructions are inapplicable.
¶60 Nicholas responds by contending that Woods is distinguishable from the case at hand. Nicholas notes that Woods involved the Federal Employers’ Liability Act (“FELA”). Nicholas argues that Woods should be limited to its facts because FELA specifically provides that a violation of its regulations constitutes negligence per se and explicitly precludes the defense of contributory negligence in FELA cases.
¶61 We agree with Nicholas that this Court’s reasoning in Woods is not applicable to this case. Although FELA statutorily precludes the defense of contributory negligence when a common carrier (such as a railroad, in Woods) violates a safety statute, FELA does not otherwise preclude the defense of contributory negligence or bar the apportionment of negligence liability based on a comparative negligence scheme. More importantly, although FELA expressly declares that the defense of contributory negligence is precluded in certain situations, the language of FELA simply does not apply in this case.
CONCLUSION
¶62 We conclude that because Zadkiel did not provide this Court with a trial transcript, we are unable to review the sufficiency of the evidence supporting the jury’s decision to award Zadkiel zero compensatory damages for pain and suffering. Similarly, we are also unable to review the District Court’s decision to refuse to permit the issue of compensatory damages for emotional distress and loss of course of life to go to the jury. We hold that the District Court correctly determined that, under §§ 27-1-702 and -703, MCA, the jury was required to consider the negligence of both Zadkiel and Nicholas in apportioning negligence liability under the comparative negligence scheme. Accordingly, we affirm the District Court’s March 1, 2005 judgment.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, WARNER and RICE concur.
While Zadkiel and Nicholas both refer to Zadkiel’s M. R. Civ. P. Rule 59 motion as a Motion for a New Trial or JNOV (judgment notwithstanding the verdict), Rule 50 was amended by order of this Court, effective March 26, 1993, to do away with the terms “directed verdict” and “judgment notwithstanding the verdict.” “Judgment as a matter of law” is now the proper term. See Schumacher v. Stephens, 1998 MT 58, ¶ 1 n.1, 288 Mont. 115, ¶ 1 n.1, 956 P.2d 76, ¶ 1 n.1; Durden v. Hydro Flame Corporation, 1998 MT 47, ¶ 3 n.1, 288 Mont. 1, ¶ 3 n.1, 955 P.2d 160, ¶ 3 n.1. For purposes of this case, however, we will refer to Zadkiel’s motion as a Rule 59 Motion for a New Trial.
See e.g. Seeley v. Kreitzberg Rentals, L.L.C., 2007 MT 97, ¶ 13, 337 Mont. 91, ¶ 13, 157 P.3d 676, ¶ 13; Williams Feed, Inc. v. State, Dep. of Tran., 2007 MT 79, ¶ 17, 336 Mont. 493, ¶ 17, 155 P.3d 1228, ¶ 17; Hoffman v. Austin, 2006 MT 289, ¶ 13, 334 Mont. 357, ¶ 13, 147 P.3d 177, ¶ 13; Moore v. Beye, 2005 MT 266, ¶¶ 8-9, 329 Mont. 109, ¶¶ 8-9, 122 P.3d 1212, ¶¶ 8-9; Satterfield v. Medlin, 2002 MT 260, ¶¶ 13-14, 312 Mont. 234, ¶¶ 13-14, 59 P.3d 33, ¶¶ 13-14; Chambers v. City of Helena, 2002 MT 142, ¶ 44, 310 Mont. 241, ¶ 44, 49 P.3d 587, ¶ 44; Stroop v. Day, 271 Mont. 314, 317, 896 P.2d 439, 441 (1995); Brockie v. Omo Const., Inc., 268 Mont. 519, 525, 887 P.2d 167, 170 (1994); Barrett v. Larsen, 256 Mont. 330, 338, 846 P.2d 1012, 1018 (1993); Gass v. Hilson, 240 Mont. 459, 462, 784 P.2d 931, 933 (1990); Feller v. Fox, 237 Mont. 150, 154, 772 P.2d 842, 845 (1989); Tope v. Taylor, 235 Mont. 124, 131-32, 768 P.2d 845, 849-50 (1988); Walter v. Evans Products Co., 207 Mont. 26, 30-32, 672 P.2d 613, 616-17 (1983); Brothers v. Town of Virginia City, 171 Mont. 352, 358, 558 P.2d 464, 467 (1976).
We also note that we have articulated alternate versions of this approach. For instance, in State v. Longhorn, 2002 MT 135, 310 Mont. 172, 49 P.3d 48, we stated that 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” and that we review a district court’s decision on a motion for a new trial for “abuse of discretion” (as opposed to “manifest abuse of discretion”). Longhorn, ¶ 47. Likewise, in Casiano v. Greenway Enterprises, Inc., 2002 MT 93, 309 Mont. 358, 47 P.3d 432, we stated that we review a district court’s denial of a motion for a new trial for “abuse of discretion.” Casiano, ¶ 16.
We note that this is not the first time that Geoffrey C. Angel, counsel for Zadkiel, has failed to provide materials essential to his client’s appeal. See Bugger v. McGough, 2006 MT 248, ¶ 44, 334 Mont. 77, ¶ 44, 144 P.3d 802, ¶ 44 (noting that this Court was unable to address the issue of whether the District Court abused its discretion in awarding attorney’s fees and costs to the respondent because Mr. Angel did not provide us with a trial transcript); Rolison v. Bozeman Deaconess Health Services, Inc., 2005 MT 95, ¶ 32, 326 Mont. 491, ¶ 32, 111 P.3d 202, ¶ 32 (stating that this Court could not address appellant’s evidentiary argument without an adequate record); Stafford v. State, 2004 MT 96N, ¶ 27, 322 Mont. 528 (Table), 94 P.3d 765 (Table) (concluding that this Court could not review an abuse of discretion argument because a transcript was not provided); In re Marriage of Hodge, 2003 MT 146, ¶ 7, 316 Mont. 194, ¶ 7, 69 P.3d 1192, ¶ 7 (explaining that because appellant did not provide a trial transcript, appellant was precluded from arguing insufficiency of the evidence). We note that in Rolison, as in the case at hand, the appellant referred to district court minute entries instead of a trial transcript to support his claim on appeal. Rolison, ¶ 32. In Rolison, we stated explicitly that minute entries were not a sufficient record with which to review testimony or address an evidentiary argument. Rolison, ¶ 32. Unfortunately, this case marks the fifth time in the past three years that Mr. Angel has neglected to provide this Court with materials essential his client’s appeal.
Modem comparative negligence law has its roots in the Federal Employers’ Liability Act, which was enacted by Congress in 1908. Dobbs, The Law of Torts § 201, at 503.
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JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 Oliver David Walker (Walker) appeals the sentencing order of the Second Judicial District, Silver Bow County. We affirm.
¶2 Walker raises the following issues for review:
¶3 1. Whether the District Court properly ordered Walker to pay restitution to a bail bondsman as part of his sentence for bail jumping.
¶4 2. Whether the District Court properly considered uncharged conduct at Walker’s sentencing.
FACTUAL AND PROCEDURAL HISTORY
¶5 Law enforcement officers arrested Walker for burglary and partner family member assault in February 2005. The Justice Court set Walker’s bond for $100,000. Barry Bail Bonds posted the $100,000 bond for Walker’s release from jail on February 26, 2005. Walker charged four credit cards to pay for the $10,000 fee that Barry Bail Bonds charged for this service. Walker also charged a fifth credit card for a $200 cash advance from Barry Bail Bonds. Walker’s credit cards initially cleared but later “unraveled” about a month after his release from jail. Barry Bail Bonds never received payment.
¶6 Walker failed to appear for his arraignment in District Court on March 24,2005. The court issued a warrant for Walker’s arrest. Barry Bail Bonds launched its own search for Walker, tracking him first to a house in Utah and then to Florida. Authorities eventually arrested Walker in Florida and extradited him to Butte.
¶7 The State charged Walker with felony bail jumping in violation of § 45-7-308(1), MCA, based on Walker’s failure to appear for his March 24, 2005, arraignment. Walker pled guilty to the bail jumping charge. The District Court accepted Walker’s plea and ordered a pre-sentence investigation report (PSI).
¶8 Walker objected to portions of his criminal history recited in the PSI, including alleged, uncharged criminal conduct contained in a section of the PSI entitled “Other Pertinent Information.” The PSI noted that Walker allegedly had been the subject of two or more pending criminal investigations. The first investigation concerned the “stolen or fraudulent” credit cards that Walker had used to pay Barry Bail Bonds. The second investigation surrounded allegations by Walker’s estranged wife that Walker had sexually abused her two daughters. Walker argued that the court could not consider the information concerning the pending investigations for the purposes of sentencing because such conduct had not been charged and remained unsubstantiated.
¶9 The court allowed the information in the PSI concerning Walker’s uncharged conduct and considered only the weight of the information. The court sentenced Walker to an eight-year commitment to the Montana Department of Corrections, with three of the eight years suspended. The court also ordered Walker to pay restitution in the amount of $11,150 to Barry Bail Bonds. Walker appeals.
STANDARD OF REVIEW
¶10 We review a criminal sentencing for legality only, determining whether the sentence falls within the statutory parameters. State v. Kuykendall, 2006 MT 110, ¶ 8, 332 Mont. 180, ¶ 8, 136 P.3d 983, ¶ 8.
DISCUSSION
¶11 Whether the District Court properly ordered Walker to pay restitution to a bail bondsman as part of his sentence for bail jumping.
¶12 Walker challenges for the first time on appeal the court’s order requiring him to pay restitution to Barry Bail Bonds. Walker argues that the restitution does not correlate with the underlying crime, and, therefore, is invalid under State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620. Walker also contends that the restitution order is invalid because Barry Bail Bonds does not qualify as a victim under § 46-18-241, MCA. Walker cites to State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979), for the proposition that he may raise these issues for the first time on appeal.
¶13 We generally refuse to review on appeal an issue to which a party failed to object at the trial court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, ¶ 8, 151 P.3d 892, ¶ 8. Our decision in Lenihan carved out an exception to the general rule by allowing appellate review of an allegedly illegal sentence even when the defendant raised no objection to the sentence at trial. We recognized that a defendant “often times must remain silent even in the face of invalid conditions” or risk the chance that a judge may impose a stiffer sentence upon raising an objection. Lenihan, 184 Mont. at 343, 602 P.2d at 1000. We deemed it the “better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000.
¶14 The Lenihan rule does not apply, however, in cases where a defendant did not remain silent at sentencing, but, instead, actively acquiesced or participated in the imposition of a condition of sentence. State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559. We held in Micklon that a defendant who had requested installment payments for restitution could not later rely on the Lenihan rule to challenge the court’s imposition of interest on such installment payments. We concluded that the Lenihan rule did not apply in light of the fact that Micklon had “affirmatively agreed to the inclusion of the interest condition in his sentence” by telling the court that he would accept the interest payments. Micklon, ¶ 10.
¶15 We narrowed the definition of “active acquiescence” for the purposes of invoking the Lenihan rule in State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661. We determined that Eaton’s expression of remorse and willingness to make restitution payments did not rise to the level of active acquiescence or participation in his sentencing condition for the purposes of forestalling appellate review under Lenihan. We allowed appellate review of Eaton’s sentence under the Lenihan rule based on the fact that Eaton’s statements of remorse lacked any request to the trial court for specific sentencing conditions. Eaton, ¶¶ 13-14.
¶16 We decline to apply the Lenihan rule here based on our decisions in Micklon and Eaton. Walker did not merely remain silent at sentencing. His statements to the court also do not reflect general expressions of remorse. Walker instead pronounced his willingness to pay restitution. Walker then used his assertion to bargain for a lighter sentence. Walker first expressed his desire to pay restitution to Parole and Probation Officer Brian Callarman (Callarman), who authored Walker’s PSI report. Callarman testified at Walker’s sentencing that Walker told him that he wanted to pay restitution to Barry Bail Bonds. Walker’s lawyer then asked Callarman on cross examination whether “Mr. Walker would be an appropriate candidate to be placed in a prerelease so he could begin to pay any restitution if the court ordered.” Callarman responded that a pre-release setting would be appropriate for Walker under the circumstances.
¶17 Walker then testified at sentencing that he wanted to pay restitution. Walker testified that he “would like to pay [Barry Bail Bonds] back as quickly as possible.” Walker’s lawyer then argued for Walker’s placement “in a prerelease center” or for a suspended sentence “so that he can be out [of custody] and make the money to pay [Barry Bail Bonds] back.” Walker’s lawyer further explained to the court that a “short-term sentence” would benefit both Walker and the victim, Barry Bail Bonds.
¶18 Walker’s admission to the court that he intended to pay restitution to Barry Bail Bonds would not, by itself, constitute active acquiescence or participation in a sentencing condition. Eaton, ¶ 13. The statement, when taken in context with the entire sentencing transcript, however, shows that Walker requested a lighter, less-restrictive sentence based on his stated desire to pay restitution. Walker’s request constitutes active acquiescence and participation in the court’s imposition of restitution as a sentencing condition. Micklon, ¶ 10; Eaton, ¶ 13. As a result, we conclude that Walker waived his right to raise the restitution issue for the first time on appeal. Micklon, ¶¶ 10-11.
¶19 Whether the District Court properly considered uncharged conduct at Walker’s sentencing.
¶20 Walker argues that the court improperly denied his request to exclude portions of the PSI report that alleged uncharged criminal conduct against Walker. Walker objected to the portion of the PSI report reciting statements made by Walker’s estranged wife and David Wayne Barry of Barry Bail Bonds. The court allowed the statements to remain in the PSI. The court considered the weight of the statements at Walker’s sentencing and assured Walker that his sentence would not be based on those factors. Walker contends on appeal that the statements constitute hearsay upon hearsay and should have been excluded from the PSI report. Walker acknowledges that the rules of evidence do not apply to sentencing hearings. Walker nevertheless argues that due process prohibits the court from “relying on materially false information when sentencing a defendant.” Bishop v. State, 254 Mont. 100, 110, 835 P.2d 732, 738 (1992).
¶21 The rules of evidence do not apply to sentencing hearings. State v. Ferguson, 2005 MT 343, ¶ 109, 330 Mont. 103, ¶ 109, 126 P.3d 463, ¶ 109. A sentencing court may “consider any relevant information relating to the nature and circumstances of the crime, the character of the defendant, the defendant’s background and history, the defendant’s mental and physical condition, and any other information that the sentencing court” deems to have probative force. State v. Harper, 2006 MT 259, ¶ 22, 334 Mont. 138, ¶ 22, 144 P.3d 826, ¶ 22. We have held that the sentencing court may consider “other acts, even those resulting in acquittal or which are dismissed pursuant to a plea bargain agreement.” State v. Mason, 2003 MT 371, ¶ 23, 319 Mont. 117, ¶ 23, 82 P.3d 903, ¶ 23.
¶22 The due process clauses of Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution protect a defendant from being sentenced based on misinformation. Due process requires that the defendant be given an opportunity to explain, argue, and rebut any information that may lead to the deprivation of life, liberty, or property, including any information contained in a PSI. Mason, ¶ 21. A defendant seeking to overturn a sentence by contesting information in a PSI maintains an affirmative duty to present information establishing inaccuracies. A party’s mere claims of inaccuracies or misinformation within the PSI are insufficient to overturn a sentence. Harper, ¶ 18.
¶23 Walker fails to support his due process claim with any “exhibits or testimony which would explain or rebut” the information in the PSI. Harper, ¶ 21. Walker called no witnesses at his sentencing to explain or rebut the contested information in the PSI. Walker bypassed the opportunity to cross examine Barry and Callarman, the State’s only witnesses, about any alleged misinformation contained in the PSI. Moreover, Walker never challenged the accuracy of the PSI during his own testimony before the sentencing court. Walker had ample opportunity to explain, argue, or rebut the information in the PSI. Walker points to no evidence or information, and we can find none in the record, that would establish inaccuracies in the PSI. Walker is not entitled to resentencing on due process grounds where there is no information to correct or rebut. Mason, ¶ 22. We conclude that the court properly allowed the uncharged conduct to remain in Walker’s PSI report.
¶24 Affirmed.
CHIEF JUSTICE GRAY and JUSTICE RICE concur.
|
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] |
Wade, C. J.
Actions under the two thousand" three hundred and twenty-sixth section of the Revised Statutes of the United States, to have determined the right to the possession of mining claims, must be instituted according to the forms and practice within the jurisdiction where the suit is commenced.
In this territory, in such cases, if the plaintiff is in possession, he brings his action to quiet title; if he is not in possession, his action is in the nature of ejectment.' In the former case the plaintiff must allege and prove possession; in the latter, he maintains his action if he establishes his right.
This complaint belongs to the former class. The plaintiffs allege that they are the owners and in the possession of certain placer mining claims situate in Independence mining district, Silver Bow county; that the defendants have applied for a patent to certain portions of said claims; that the plaintiffs have filed their protest, and bring this action to have their title and possession decreed to them.
The defendants deny the title and possession of plaintiffs, and deny that the ground for which they have applied for a patent is any part or portion of the plaintiffs’ claims.
Under this issue it was necessaiy for the plaintiffs to prove that at the date of the commencement of the action, they, by themselves or tenants, were in the actual possession of the claims in question. Our Code of Civil Procedure provides, section 354: “An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the pur pose of determining such adverse claim, estate or interest.”
This section of the code determines the character of the action to be instituted to have adjudicated the right to the possession of a mining claim, where the one claiming the right is in possession, and another sets up an adverse claim, estate or interest in the property; and it also points out one of the necessary elements of the plaintiff’s case in order to maintain the action, viz., actual possession at the date of the commencement of the action. See Lyle v. Rollins, 25 Cal. 437; Brooks v. Calderwood, 34 Cal. 563; Sepulveda v. Sepulveda, 39 Cal. 13.
The testimony shows that the plaintiffs were not in possession of the ground in controversy at the date of the commencement of the action. Prior to that time they had entered into an agreement and covenant to convey to the Colorado and Montana Smelting Company, the validity of which agreement is not questioned by either party; the company had taken possession in pursuance of such covenant; had paid the full consideration men-’ tioned therein, and stood in-a position to compel a conveyance as provided for in the covenant to convey.
The purchase price having been fully paid, the plaintiff testified that she was ready to convey to the Smelting-Company long before this action was commenced. It follows, therefore, that the plaintiffs, besides being out of the possession of the ground in question, are not the real parties in interest and had not the right or capacity to maintain this action. Furthermore, it is not shown by the proof that the ground claimed by the defendants is in conflict with that claimed by plaintiffs. See San Diego v. Allison, 46 Cal. 162; San Francisco v. Ellis, 54 Cal. 73; Blosdell v. Williams, 9 Nev. 161; King v. French, 2 Saw. 441; Stark v. Storrs, 6 Wall. 402.
The motion for nonsuit was properly sustained, and the judgment is affirmed with costs;
Judgment affirmed.
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Wade, C. J.
,This is an appeal from a final judgment rendered upon a verdict in which the defendant was found guilty of the crime of murder in the first degree. There was but one exception taken and saved during the trial, and that has been abandoned by counsel for the defendant in their briefs and arguments as unworthy of their consideration. That exception is based upon the proposition that the facts stated in the indictment do not constitute a public offense, in this: the indictment does not allege that the defendant had and held a certain gun, or had any weapon in his possession, at the time of the alleged killing, and that the said indictment is therefore uncertain. A reference to the authorities will conclusively show that such an allegation is unnecessary. In the case of Commonwealth v. Costley, 118 Mass. 1, which was an indictment for murder, the defendant moved to quash the indictment, “because there is no allegation that the pistol named therein as the weapon with which the homicide was committed, was had or held by the defendant, at the time of the commission of the offense, in his, the defendant’s, hand or hands.” The motion was overruled and the defendant excepted. In deciding the question raised by the exception, Chief Justice Gray said: “The only objection to the form of the indictment is for the omission to allege that the pistol was held in the hand of the defendant. This objection is supported by a statement in 2 Hale, P. C. 185, and by a case there cited, decided in the time of Queen Elizabeth. But the materiality of such an allegation has been denied or doubted by the later English writers on criminal law. 2 Hawk. P. C. p. 23, §§ 76-84; 1 East, P. C. 341; 1 Starkie, Crim. Pl. (2d ed.) 92; 1 Puss. Cr. (3d ed.) 558; Archb. Crim. Pl. (10th ed.) 407. It is not necessary to a full description of the crime, nor in order to inform the defendant of the particulars of the charge which he is to meet, and, if inserted, need not be proved. We are of the opinion that it is of the same character as a description of the size of the wound, the omission of which does not affect the validity of the indictment.” Train & H. Crim. Pl. 274.
But though there were no other objections to the indictment at the trial, still the indictment must support the judgment, and the question as to whether it does or not can be, as it has been, raised in this court for the first time'in this case. It is admitted by counsel for the defendant that the indictment is good for murder iu the second degree, and that it is a good common law indictment for murder. If this be so, then this case is within the decision of this court in the case of Territory v. Stears, 2 Mont. 326, which case is affirmed in Territory v. McAndrews, 3 Mont. 158, where it is held that an in dictmeut for murder, good at common law, is good under our statute. More than this, the indictments in the Stears and McAndrews Cases are in every material particular the same as the indictment in the case we are considering. The only difference is in the conclusion of the indictments. In the Stears Case the indictment concludes as follows: “And so the jurors aforesaid, upon their oaths aforesaid, do further say that the said William H. Stears, the said Franz Warl, in manner and form aforesaid, then and there feloniously, wilfully, and of his deliberate and premeditated malice, and of his malice aforethought, did kill and murder, contrary,” etc.
In this case, the indictment — after charging that the defendant, in and upon one Daniel McCarty, feloniously, wilfully, unlawfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and then and there (describing the means used) feloniously, wilfully, unlawfully, deliberately, premeditatedly, and of his malice aforethought, did strike, penetrate and wound the said Daniel McCarty (describing how and where), thereby giving to the said Daniel McCarty one mortal wound, of which mortal wound the said McCarty instantly died — concludes as follows: “And so the grand jurors aforesaid do say that the said Frank Young, in the manner and by the means aforesaid, feloniously, wilfully, unlawfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder, contrary,” etc., leaving out the words “him, the said McCarty.” These words are the mere conclusion drawn from the preceding ..averments. If the averments are bad, the conclusion will not aid them; if they are good, and sufficiently describe the crime as the law requires, by proper averments, the formal concluding words are immaterial. At common law the concluding words formally charging the defendant with murder were necessary in order to distinguish an indictment for murder from an indictment for manslaughter. If the term “murder” were omitted from the conclusion, of the indictment, the defendant could only be convicted of manslaughter. 3 Chit. Crim. Law, 737; Fouts v. State, 8 Ohio St. 119, 120.
The reasons for the technical conclusion of indictments for murder at common law all disappear under statutes defining the degrees of the crime, and providing that the jury shall designate the degree in their verdict. And so we are compelled to say that this indictment is clearly within the Stears and McAndrews decisions, and those decisions we cannot disturb. This conclusion seems irresistible when we remember our statute, which provides that no indictment shall be quashed or set aside for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged, or for any defect or imperfection which does not tend to prejudice the substantial rights of the defendant on the merits. R. S. p. 311, § 171, subds. 5, 6.
This is an appeal from the judgment. There was no motion for a new trial. The decisions of this court are uniform and numerous that the testimony cannot be brought here for review except by statement on motion for a new trial. The testimony is not before us in such a manner that we can examine it as to its sufficiency to support the verdict. .Only a motion for a new trial could have brought it here for that purpose. There is no exception to this rule.
The defendant at the trial did not ask for any instructions to the jury in his own behalf, nor did he object to or take an exception to those given by the court, or to any part or portion of them. He did not suggest an addition to or a modification of the instructions as given. This being so, we cannot consider the questions raised by counsel for defendant in their briefs and argument for the first time. Over and over again this court has decided that we cannot consider objections to instructions to the jury unless such objections were made and saved at the trial in a proper bill of exceptions. Under the law of the territory and precedents of this court there is nothing in the record by which the judgment can be disturbed. The judgment is affirmed.
(All concur.)
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] |
Galbraith, J.
This is an appeal from an order overruling a demurrer to the complaint. The demurrer avers, as the only ground therefor, that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges, in substance, that by section 3 of an act of congress entitled “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route,” approved July 2, 1864, there was granted to the respondent every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad, as said company might adopt, through the territories of the United States, wherever on the line thereof the United States had full title at the time the line of the road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; that by section 6 of the act aforesaid, it was provided that after the general route of the road should be fixed, the president of the United States should cause the lands to be surveyed for forty miles in width on both sides of the line of said road as fast as might be required by its construction, and that the odd-numbered sections of land granted by section 3 of said act to the respondent should not be liable to sale, entry or preemption, before or after they were so surveyed, except by the said North Pacific Eailroad Company; that the general route of said railroad adjacent and opposite to section thirteen (13), township ten (10) north, of range four (4) (the land in question), was fixed by the respondent the 21st day of February, 1871, within less than forty miles from said section, by means whereof said section was withdrawn from sale, entry or pre-emption, except by the respondent; and thereafter, to wit, on the 1st day of October, 1881, the line of said road at and opposite to said section was definitely adopted and fixed, and a plat thereof filed in the office of the commissioner of the general land office, at which time the said section was free from other sales, reservations, appropriations, preemptions, dispositions, claims or rights than that con tained in section 3 of the act aforesaid,* granting the same to the respondent; that said grant then and there took effect and attached thereto, and that said company did then proceed and is now proceeding to construct its road upon said line of definite location, opposite and adjacent to and by the said section thirteen (13), which is within the limits of said grant; that said section thirteen (13), on the 2d day of July, 1864, was public land of the United States, to which they then and there had full title, and except for the grant to the respondent would yet have full title thereto, and so in the manner aforesaid the respondent says it has full title to and is the owner of said section thirteen (13), and on the 1st day of October, 1881, was, and ever since has been, entitled to the possession and occupancy and enjoyment thereof. The complaint also alleges entry and ouster by the appellant on the 30th day of October, 1881, and demands possession of the premises in question.
The argument of the appellant is, in substance, that the complaint “does not show any such title in the respondent by a grant or patent from the United States as carries with it livery of seizin, nor is there any allegation of actual prior possession which, without such grant or patent, would sustain its action of ejectment;” that the words of present giant, in the third section of the act, are specially restrained by the provisions of other portions of the act, which prescribe certain conditions, and especially by tho.se of section 4, which, it is claimed, determines when the grant shall take effect, viz.: “When twenty-five consecutive miles of the road shall be completed, and after the report of commissioners, etc., patents shall be issued to the company conveying the additional sections,” etc.; that until this time, viz., when patents shall have issued in accordance with the act, the right of the respondent in the lands by virtue thereof is simply the “grant of an incorporeal right in said lands, accompanied by certain conditions, upon the performance of which conditions the act provides when and how the title shall vest in the company, to wit, the lands shall be conveyed by patent, when each twenty-five miles of the road shall be completed, and not before; that by virtue of the act, the United States becomes a trustee for the company, and agrees that when it shall have designated its route, “the government will reserve from sale, etc.,' the odd sections to be conveyed to the company upon the performance of certain acts; ” that the legal title is in the United States until the issue of the patent, before which the company has only an equitable estate, and cannot maintain an action of ejectment. The complaint does not allege any patent to the respondent.
The questions, therefore, for our consideration are, What is the character of the title in the respondent by virtue of the act before the issue of the patent ? And when does it have such a title as that it can maintain thereon an action of ejectment ?
In order to solve these questions, we must arrive at the true interpretation of the act of congress making the alleged grant. The proper rule of interpreting this act we believe to be that cited by the appellant, viz.: “The court, if possible, must give the statute such a construction as will enable it to have effect; that is, it must be construed in accordance with the- legislative intent.” Cooley’s Const. Lim. 223. This is substantially the language of the supreme court of the United States in Leavenworth, etc. R. R. Co. v. The United States, where Davis, J., delivering the opinion of the court, says, referring to the act of congress granting lands to the railroad company: “This grant, like that to Iowa, was made for the purpose of aiding a work of internal improvement, and does not extend beyond the intent it expresses. It should be neither enlarged by ingenious reasoning, nor diminished by strained construction. The interpretation must be reasonable and such as will give effect to the intention of congress. This is to be ascertained from the terras employed, the situation of the parties, and the nature of the grant. If these terms are plain and unambiguous, there can be no difficulty in interpreting them; but if they admit of different meanings, one of extension and the other of limitation, they must be accepted in a sense favorable to the grantor.” The latter portion of this language, and similar language in other decisions, must be considered as referring to terms so ambiguous in their character that a resort must be had to a rule of construction resolving the doubt in favor of one party to the contract rather than to the other; for we are satisfied that it is a rule absolutely binding upon all courts, that where the legislative will and intent is discovered in a statute, they must give force and effect to that will and intent when it does not contravene the fundamental law. It is the rule of common law in relation to grants, that where the language was so ambiguous as to call for the interposition of a rule of interpretation, the doubt was required to be resolved against the grantor. It was expressed thus: “That the deed be taken most strongly against him that is the agent or contractor, and in favor of the other party.” 2 Bla. Com. 380. In the language of the authorities generally, private grants are strictly construed against the grantors, and public grants against the grantees. But it is only when courts are in doubt as to the meaning of the instrument that resort will be had in either case to the above rule of construction.
Another rule of construction of legislative acts is, that it must be made upon the entire act, and not upon disputed parts of it. Every part of the act should be made to take' effect, if possible, and all the words be made to operate in one way or the other. Can, therefore, the intention of congress be discovered from the act itself, without resort to the rule which obtains, where there is ambiguous or doubtful language in an act of the legislature? and what, taking into consideration all the language of the act in question, was such intention in relation to the time when the grant should take effect ? The act will be presumed to have been passed by congress with the knowledge of its previous enactments in relation to grants of lands, and the repeated determinations of the supreme court of the United States as to their construction. That court has repeatedly held, in construing grants of land made by congress, that “a grant ” of lands “ may be made by law as well as by a patent issued pursuant to a law,” “and such grant vests an indefeasible and iri’evocable title.” Fletcher v. Peck, 6 Cranch, 87; Strother v. Lucas, 12 Pet. 454; 9 Cranch, 43; Wilkinson v. Leland, 2 Pet. 498; 3 Washburn on Real Prop. (4th ed.) 193, 194.
“It [a confirmation of- title by act of congress] was a higher evidence of title than a patent, as it was the direct grant of the fee which had been in the United States, by the government itself, whereas the patent was only the act of its ministerial officers.” Grignon’s Lessee v. Astor, 2 How. 319. “The plaintiff’s title [a confirmation by congress] is prima facie a good legal title, and will support ejectment on the act of 1836, standing alone, if the land can be identified as confirmed without resort to the patent.” Chouteau v. Eckhart, id. 344. In Green v. Leiter, 8 Cranch, 229, Story, J., says: “We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seizin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the state. A fortiori, the principle applies to a patent, since, at the common law, it imports a livery in law.” For a still stronger reason would this principle apply in the case of an act granting such lands, for, as we have just seen, the supreme court of the United States has held that such an act is higher evidence of title than a patent.
The decisions of the supreme courts of several of- the states are to the same effect. “'A grant of lands by the government is tantamount to a conveyance with livery of seizin.” 3 Washburn on Eeal Prop. (4th ed.) 191, and cases there cited. “He who takes title to. lands from the federal government draws the actual legal possession to it.” Robinson v. Lake, 14 Iowa, 421.
With this construction of public grants as the uniform rule, congress passed the act in question. Its preamble entitled it as follows: “An act granting land to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route.”
Those portions of the act which bear upon the question before us are as follows: Section 3 of the act provides “that there be and hereby is granted to the Northern Pacific Railroad Company, its successors and assignees, for the purpose of aiding in the construction of said railroad, . . . every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line-as said company may adopt through the territories of the United States, . . . and whenever on the line thereof the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office.”
Section 4 provides “that whenever said Northern Pacific Railroad Company shall have twenty-five consecutive miles of any portion of said railroad and telegraph line ready for the service contemplated, the president of the United States shall appoint three commissioners to examine the same, and if it shall appear that twenty-five consecutive miles of said road and telegraph line have been completed in a good, substantial and workmanlike manner, as in all other respects required by this act, the commissioners shall so report to the president of the United States, and' patents of lands as aforesaid shall be issued to said company, confirming to said company the right and title to said lands, situate opposite to and coterminous with said completed section of said road; and from time to time, whenever twenty-five additional consecutive miles shall have been constructed, completed, and in readiness as aforesaid, and verified by said commissioners to the president of the United States, then patents shall be issued to said company conveying the additional sections of land as aforesaid, and so on, as fast as every twenty-five miles of said road is completed and operated.”
Section 6 provides “ that the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption, before or after they are surveyed, except by said company, as provided' in this act; but the provisions of the act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled ‘ An act to secure homesteads to actual settlers on the public domain,’ approved May 28, 1862, shall be and the same are hereby extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre.”
It will be observed that the preamble, which may be resorted to, to aid in the construction of an act of the legislature (1 Bla, Com. 60), recites that it is “an act granting lands;” that is, the act itself grants. It does not recite that it is an act providing for a grant or conveyance or sale of lands, which in all probability would have been the language used had it been the intention of congress that the patent should operate as a conveyance, but that the act itself is the grant. This language is also indicative of an intention that the grant is a present grant. The word used is “granting,” being the present participle; that is, granting now. Again, the object of the grant, as stated in the preamble, was to aid in the construction of the road. The plain and unconstrained meaning of this language would seem to be that these lands were to be available to the road, not after it had been completed, or after any portion of it had been completed, but during the construction thereof. If we are right in this view of the above language, it will also he an indication of the will and intent of congress in the enactment of the law. The language, therefore, of the preamble, so far as it is indicative of and aids us to arrive at the intention of congress in the passage of the act, recites that the act itself is the grant.
The first language used in the act itself, relating to the grant of lands, is contained in section 3, and is as follows: “That there he, and is hereby, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad,” etc. The above phrase, “there be, and hereby is, granted,” has been several times before the supreme court of the United States, and has received a fixed and definite construction. In construing an act of congress of 1820, granting lands to the state of Missouri, which contained the following language, “ that four entire sections of land be, and the same are hereby, granted to the said state, for the purpose of fixing the seat of government thereon; which said sections shall, under the direction of the legislature of said state, be located as near as may be in one body at any time, in such townships and ranges as the legislature aforesaid may select on any of the public lands of the United States, provided that such location shall be made prior to the public sale of the lands of the United States surrounding such location.”
Mr. Justice Catron delivering the opinion of the supreme court of the United States, and referring to the opinion of Chief Justice Marshall in Rutherford v. Green’s Heirs, 2 Wheat. 196, says: “The land was granted by the act. It was a present grant, wanting identity to make it perfect, and the legislature was vested with full power to select and locate the land; and we need only here say, what was substantially said by this court in Rutherford v. Green’s Heirs, that the act of 1820 vested a title in the state of Missouri of four sections, and that the selections made by the state legislature, pursuant to the act of congress, and the notice given of such location to the surveyor-general and the register of the local district where the land lay, gave precision to the title, and attached it to the land selected.” Lessieur v. Price, 12 How. 59. The same court, in Schulenberg v. Harriman, 21 Wall. 44, Field, J., delivering the opinion of the court, says: “ That the act of congress of June 3, 1856, passed a present interest in the lands designated there can be no doubt. The language used imports a present grant, and admits of no other meaning. The language of the first section is, “ That there be, and hereby is, granted to the state of Wisconsin the lands ” specified. The third section declares “ that the said lands hereby granted to said state shall be subject to the disposal of the legislature thereof; ” and the fourth section provides in what manner sales shall be made, and enacts that if the road be not completed within ten years, “no further sales shall be made, and the lands unsold shall revert to the United States.” The power of disposal and the provision for the lands reverting both imply what the first section in terms declares, that a grant is made — that is, that the title is transferred to the state. It is true that the route of the railroad, for the construction of which the grant was made, was to be designated, and until such designation, the title did not attach to any specific tracts of land. When the route was fixed, their location became certain, and the title, which was previously imperfect, acquired precision and became attached to the land.
In the case of Rutherford v. Green’s Heirs, 2 Wheat. 196, a similar construction was given by the court to an act of North Carolina passed in 1782, which provided that twenty-five thousand acres of land should be allotted and given to General Green and his heirs, within the limits of a tract reserved for the army, to be laid off by commissioners appointed for that purpose. The commissioners, pursuant to the directions of the act, allotted the twenty-five thousand acres, and caused the quantity to be surveyed, and the survey to be returned to the proper office; and the questions raised in the case related to the validity of the title of General Green, and the date at which it commenced. The court held “that the general gift of twenty-five thousand acres lying in the territory reserved became by the survey a particular gift of the quantity contained in the survey, and concluded an extensive examination of the title by stating that it was the clear and unanimous opinion of the court that the act of 1782 vested a title in General Green to the twenty-five thousand acres, to be laid off within the bounds designated, and that the survey made in pursuance of the act gave precision to that title, and attached it to the land surveyed.”
In the case of L. L. & G. R. R. Co. v. U. S. 92 U. S. 733, Davis, J., delivering the opinion of the court, says, referring to the act under consideration: “It creates an immediate interest, and does not indicate a purpose to grant in futuro. ‘There be, and is hereby, granted,’ are words of absolute donation, and import a grant in prcesenti. This court has held that they can have no other meaning, and the land department, on this interpretation of them, has administered every similar grant. Railroad Co. v. Smith, 9 Wall. 95; Schulenberg v. Harriman, 21 id. 60; 1 Lester, 513; 8 Op. Att. Gen. 257; 11 id. 47. They vest a present title in the state of Kansas, though a survey of the land and a location of the road are necessary to give precision to it and attach it to any particular tract. The grant then becomes certain, and by relation has- the same effect upon the selected parcels as if it specifically described them. In other words, the grant was afloat until the line of the road should be definitely fixed.”
In the case of M. K. & T. R. R. Co. v. K. P. R. R. Co. 97 U. S. 491, Field, J., speaking for the supreme court of the United States, says: “Briefly stated, the case of the plaintiff is this: In 1862 congress granted to it certain lands, consisting of odd sections along a railroad to be afterwards constructed. In 1864 congress enlarged the grant, and by subsequent legislation authorized the route of the road to be designated at any time before December, 1866. When designated, lands within a limit sufficiently extended to embrace the granted sections were to be reserved from sale; and when certain portions of the road were from time to time completed, and were accepted by the president as a fhst-class road, patents for the sections were to be issued to the company. The plaintiff designated the route of its road in July, 1866, and the lands in controversy were, on the 26th of that month, reserved from sale. By the 14th of December following it had completed twenty miles of its road, and by the 16th of January, 1867, five miles in addition. Commissioners wero appointed by the president to examine and report as to the completion and equipment of the road, and upon their favorable report the section of twenty-five miles was accepted by him, and a patent for the lands was ordered to be issued. The plaintiff therefore claims that it acquired a title to the lands and has a right to the evidence of it; and this claim is well founded, unless there be something impairing its validity in the legislation and proceedings under which the defendant asserts title to the land.
“As between the United States and the plaintiffs, the right of the latter to a patent became perfect on the approval by the president of the report of the commission ers. The act of July 1, 1862, passed to the company a present interest in the lands to be designated within the limits there specified. Its language is, ‘ that there be, and is hereby, granted’to it the odd sections; which words import a grant in prcesenti, and not one in futuro, or the promise of a grant. Similar terms in other acts of congress granting lands have uniformly received this interpretation, unless accompanied with clauses restraining their operation. They were so interpreted in Schulenberg v. Harriman, after full consideration of previous adjudications on their import, and the ruling there was followed in Leavenworth, Lawrence & Galveston Railroad Co. v. United States, 92 U. S. 733. It is true that the route of the road in this case, as in those cases to aid in the construction of which the act was passed, was to be afterwards designated; and until designated, the title could not attach to any specific tracts. The grant was of sections to be afterwards located, and their location depended upon the route to be established. When that was settled the location became certain, and the title that was previously imperfect acquired precision and attached to the lands.
“It is always to be borne in mind, in construing a congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties. To the validity of such transfers it may be admitted that there must exist a present power of identification of the land, and that wrhen no such power exists instruments with words of present grant are operative, if at all, only as contracts to convey. But the rules of the common law must yield in this, as well as in all other cases, to the legislative will.
“As to the intent of congress in the grant to the plaint iff, there can be no reasonable doubt. It was to aid in the construction of the road by a gift of lands along its route, without reservation of rights except such as were specifically mentioned, the location of the route being left within certain general limits to the action of the plaintiff. When the location was made, and the sections granted ascertained, the title of the plaintiff' took effect by relation as of the date of the act, except as to the reservations mentioned, the act having the same operation upon the sections as if they had been specifically described therein.”
In the case of The St. Joseph & Denver City Railroad Co. v. Baldwin, 103 U. S. 427, the supreme court also says: “The lauguage of the act here, and of nearly all the congressional acts granting lands, is in terms of a grant in prcesenti. The act is a present grant, except so far as its immediate operation is affected by the limitation. * There is hereby granted5 are the words used, and they import an immediate transfer of interest, so that when the route is definitely fixed, the title attaches from the date of the act, to the sections, except such as are taken from its operation by the clauses mentioned.” The limitation in this case was that in case at the time the line of the road was fixed the United States had sold any of the lands, or that the right of homestead or preemption had attached thereto, or that the same had been 'reserved by the United States, then the secretary of the interior should select other lands in lieu thereof for the state. So far, therefore, as the third section of the act under consideration standing alone is concerned, viz., “that there be, and hereby is, granted,” the above decisions have determined its construction to be that of words of present grant; that they create “'an immediate interest, and do not indicate a purpose to grant in futuro. ” These decisions also, determine for us (where the act itself does not indicate the particular' lands granted, but leaves their location to be specified in the future) when such a grant shall attach to the particular tracts, and become fixed and certain, until which it is afloat, which in this case would be when the fine of the road is definitely fixed, and the lands granted thereto ascertained. This is necessary to be done to give precision to the grant and attach it to the particular tracts of land.
When such line is definitely fixed, and the sections of land designated by the survey, the grant then becomes certain, and, by relation, has the same efféct upon the lands thus designated as if they were specifically described therein. Therefore we must conclude, now having in view simply sections 3 and 6 of the act in question, that the grant takes effect as of date of the act, and becomes attached to the specific tracts when definitely ascertained by the location of the route of the road and the survey of the lands.
The appellant, however, insists that “ the words in section 3 of 'the charter of the Northern Pacific Railroad, which, unexplained, would import a grant in prcesenti, are specifically restricted by the provisions of the following sections, to wit: Sections 4, 5, 6, 8 and 9, and perhaps section 20.” How far the provisions of section 4 restrict the words of present grant we will consider hereafter. Section 5 provides principally for the proper construction of the road and telegraph line, and prescribes briefly the manner of such construction. Section 6 specifically exempts certain lands from the provisions of the act, and virtually provides that the lands reserved shall not be disposed of to any other parties than the Northern Pacific Railroad. Section 8 provides, in substance, that the company accepts the grants, rights and privileges conferred by the act, and that the same are given upon condition that it shall commence the work in two years from the approval of the act, and complete not less than fifty miles per year after the second year, and finish the road completely by the 4th of July, 1876. Section 9 refers to the grants conferred by the act as conditioned grants, and provides that they are made by the United States and accepted by the company, upon the further condition that if the company make any breach of the conditions thereof, and allow it to continue for more than a year, congress at any time thereafter may do anything necessary to insure a speedy completion of the road. So far as the provisions relate to the language making the grant contained in the third section, they do not affect the creation or vesting of the estate in the lands, but simply the nature and character of the estate.
So far as they impose conditions .upon the grantee, these are what are termed conditions subsequent. They do not relate to the creation of the estate, but render it liable to be defeated for default on a breach in performance of such conditions. Upon default or breach of such conditions, congress might declare a forfeiture. “It is settled law that no one can take advantage of the nonperformance of a condition subsequent, annexed to an estate in fee, but the grantor or his heirs or the successors of the grantor, if the grant proceed from an artificial person; and if they do not see fit to assert their rights to enforce a forfeiture on that ground, the title remains unimpaired in the grantee.” Schulenberg v. Harriman, 21 Wall. 44.
“ If the grant be a public one, it must be asserted by judicial proceedings authorized by law, the equivalent of office found at common law, finding the fact of forfeiture, and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession or appropriation of the property, or that it be offered for sale or settlement. At common law the sovereign could not make an entry in person, and therefore an office found was necessary to determine the estate; but, as said by this court in a late case, ‘ the mode of asserting or reserving the forfeited grant is subject to the legislative authority of the government. It may be after judicial investigation or by taking possession directly, under authority of the government, without these preliminary proceedings.’ In the present case, no action has been taken, either by legislative or judicial proceedings, to enforce a forfeiture of the estate granted by the acts of 1856 and 1864. The title remains, therefore, in the state, as completely as when the title by location of the route of the railroad acquired precision and attached to the adjoining alternate sections.” Schulenberg v. Harriman, 21 Wall. 44.
It may be, perhaps, unnecessary, in view of the situation of the case at bar, to say that no such attempt has been made to forfeit the title claimed by the respondent to be vested in it by virtue of the act of congress under consideration. The fact that section 9 refers to the grant of lands as “conditioned grant” does not at all, as claimed by the appellant, change the character of such conditions from conditions subsequent to conditions precedent, or, in other words, from that kind of conditions which operate upon estates already created, and which may defeat or cause a forfeiture of such an estate, to that which affects the vesting or creating of an estate.
So far, therefore, as sections 5, 6, 8, 9 and 20 of the act are concerned, they do not affect the vesting of the estate which is claimed by respondent to be created and vested by sections 3 and 6, and which must be so created and vested, unless the language of present grant, contained in section 3, is restrained and limited by the provisions of section 4.
This brings us to the consideration of how the language of section 4 affects the words of present grant contained in section 3. It is claimed by the appellant that “ section 4 prescribes when the grant shall take effect, and how it shall be completed,” to wit: “When twenty-five consecutive miles of the road shall be completed, and after the report of the commissioners, etc., patents shall be issued to the company, conveying the additional sections,” etc.
It will be observed that this section provides, in the first portion thereof, “ that whenever said Northern Pacific Eailroad Company shall have twenty-five consecutive miles of any portion of said railroad,” etc., completed, and the commissioners have reported thereon as required by the act, their “patents of lands, as aforesaid, shall be issued to said company, confirming to said company the right and title to said lands, situated opposite to and coterminous with said completed section of said road.” And again, in the latter portion thereof, “and from time to time, whenever twenty-five additional consecutive miles shall have been constructed and completed,” and reported upon by the commissioners, “ then patents shall be issued to said company, conveying the. additional sections of land as aforesaid, and so on, as fast as every twenty-five miles of said road is completed as aforesaid.”
A confirmation is a species of common law conveyance. It is defined as “a deed, whereby a conditional or voidable estate is made absolute and unavoidable by the con-firmer, so far as he is able, or whereby a particular estate is increased,” referring to Co. Lit. 295 b, and 2 Bla. Com. 325.
We have seen that the act, not taking into consideration section 4, constitutes a conditional grant. The effect of the patent referred to in the first part of section 4 is therefore simply to discharge the condition attached to the grant, so far as relates to the odd sections situate opposite to and coterminous with the completed twenty-five consecutive miles of “ any portion ” of the road, and make the title thereto absolute in the grantee. If the same language had been used in the latter portion of this section, instead of the term “conveying,” there could be no shadow of doubt as to the object of the entire sec tion. But we think that the difference in the language of the two portions can be easily reconciled. We cannot see, taking into consideration the entire act and its object, why any distinction should be made between the twenty-five consecutive miles of “any portion of” the road and the other portions or sections thereof of twenty-five miles each. So far as relates to the grant of lands, we do not think that congress intended to make any such distinction. Conveyance, as we have seen, is the generic term, of which confirmation is the species. Its operative words include those of a feoffment, which is also a species of a conveyance. We think, therefore, that when the word “ conveying” was used in the latter portion of section 4, it was employed as synonymous with the language used in the first portion thereof, viz., “confirming the right and title.” By this construction section 4 recognizes the estate in the grantee, which is vested in it by virtue of sections 3 and 6, instead of limiting and restraining the words of present grant.- “There must be a precedent rightful or wrongful estate in the person to whom the confirmation is made in his own or another’s right, or at least he must have the possession of the thing whereof the confirmation is made, as a foundation for the confirmation to work upon.” Smith on Eeal and Personal Prop. 561; Pres. Shep. T. 312. Keeping in view the above definition of a confirmation, we must therefore conclude that section 4, in providing-therefor, recognizes just what the act without this section in fact is, viz., a grant upon condition subsequent.
The fallacy of the appellant’s argument, in a great measure, arises from confounding the usual office of a patent, which in most cases is the original conveyance of the title to government lands, with its office in those cases where the act is itself the grant, and the purpose and object of the patent is designated in the act or determined by a proper construction of its provisions. Here its purpose is not that of an original title, but that of the con firmatiom of a title already bestowed. Its office is to discharge the conditions attached to the grant, and extinguish the right of forfeiture for breach thereof, just as fast as certain portions of the road are completed in accordance with the terms of the act. After patents have issued for lands adjacent to and coterminous •with such completed portions of the road, then the government can only cause a forfeiture for breach of the condition imposed by the act of the remaining portions of the grant adjacent to and coterminous with the uncompleted portions thereof. This construction of the act is to accomplish that intention which is expressed in the preamble and body of the act itself, viz., to assist in the construction of the road.
Again, to hold that the patent is the original conveyance does violence to the recitals of the preamble, viz., that the act itself grants, and that the grant is of the date of the approval thereof. It deprives of their usual and accepted authorized meaning the words of present grant contained in the third section, viz., “that there be, and hereby is, granted,” which, when employed in a similar connection as that in which they are used in this act, have been uniformly held to be the highest evidence of title, and to import possession and livery of seizin. It has the same effect upon the words “ hereby granted ” that is, granted by this act, contained in section 6. It renders null and void the exclusive power and right of the grantee to sell the land which is conferred in section 6, which is in the following language: “And the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption before or after they are surveyed, except by said company as provided in this act.” This section provides that the survey shall be made after the general route is fixed, and as fast as may be required by the construction of the road. It precedes the issue of the patent. This power given to the company, to sell the lands designated before the issue of the patent, is itself an interpretation by congress of its intention to bestow a present grant, contained in section 3.
To hold that the patent is the original conveyance, and that the words of section 3 do not create a present grant, is also inconsistent with the provision that when the lands are surveyed the odd sections are relieved from the operation of the homestead and pre-emption laws, while they are extended to the even sections, which are reserved to the government. The prevention of the operation of the above laws as to the odd sections is not reasonably reconcilable with any other hypothesis except that the government has parted with its title thereto.
The case of Rice v. The Railroad Co. 1 Black, 358, is referred to by appellant to support the position that the title does not pass to the company until the issuing of the patent. In that case it was held that an act giving lands to the territory of Minnesota, to assist in the construction of a railroad, containing the words “ that there shall be, and is hereby, granted,” etc., taken in connection with another provision in the act, “that no title should vest in the territory, nor any patent issue for any part of the lands, until a continuous length of twenty miles of the road should be completed,” did not pass the title to the territory. The principal reason given by the court for this decision was that by express provisions of the act no title should vest in the territory, nor any patent issue for any part of the lands, until a continuous length, of twenty miles of the road should be completed.
That this was the view of the supreme court is apparent from the language of Field, J., in Schulenberg v. Harriman, 21 Wall. 44, which is as follows: “ The case of Rice v. Railroad Co. 1 Black, 358, does not conflict with these views. The words of present grant in the first section of the act, there under consideration, were restrained by a provision in a subsequent section that the title should not vest, in the territory of Minnesota until the road, or a portion of it, was built.”
The rule for this construction was given in this case by Mr. Justice Clifford, in the following language: “'Whenever the words of a statute are ambiguous, or the meaning doubtful, the established rule of construction is, that the intention must be deduced from the whole statute and every part of it. Intention, in such cases, must govern when it can be discovered, but in the search for it, the whole statute must be regarded, and, if practicable, so regarded as to give effect to every part.” The rule thus cited for holding as the court 'did in that case sustains the position which we maintain in this. For if the rule that the intention must control when discoverable (and it is the duty of the court, if possible, to discover the intention), and every part of a statute given its proper effect, is invoked to prevent the rejection or disregard of the language “that no title shall vest,” etc., when contained in the same act with words of present grant, certainly the same rule is applicable to prevent the rejection or disregard of the words of recital in the preamble, and of the words of present grant in sections 3 and 6, of the power to sell before the issue of the patent, and the relief of the odd sections from the operation of the homestead and pre-emption laws, as also provided for in section 6.
“The true construction of the act, therefore, in our opinion, is that the patent is the original conveyance of the lands, and that the act itself must amount to a contract to convey, as certain portions of the road are completed, and, therefore, up to and until the issue of the patent the respondent has only what the appellant terms an ‘incorporeal right’ in the lands, but that, until the patent issues, it is a grant in prcssenti, upon condition subsequent, which the patent confirms and renders unconditional and absolute in the grantee.”
We have considered the main question in this case as if it had not already been decided by a court whose authority is binding upon us; but we think it is no longer an open question. In the case of The M. K. & T R. R. Co. v. K. P. R. R. Co. 97 U. S. 491, from which we have before quoted, one of the principal questions before the supreme court was in relation to the construction of an act of - congress in very many respects similar to the one in question, viz.: An act entitled “ An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean,” etc., approved July 1,1862. 12 Stat. at Large, 489. We have already given, from the language of Mr. Justice Meld, who delivered the opinion of the court, a brief statement of the prominent provisions of this act. In addition thereto we will state the language used in relation to the patents, which followed the language of present grant, which was: “Patents shall issue conveying the right and title to sail lands to said company. . . . And patents shall in like manner issue as each forty miles of said railroad . . . are completed.” Section 4 of above act.
It will be observed that the word used in connection with the word “patents” is “conveying,” being the same word used in connection with the same term in the latter portion of section 4 of the act under consideration, which, as we have already indicated, uses both the words, “confirming the right and title” and “conveying,” in connection with the term “patents.” Nevertheless the supreme court in this case held that the act passed to the company a present interest in the lands, to be designated within the limits there specified. Similar terms in other acts of congress granting lands have uniformly received the same interpretation, unless accompanied with clauses restraining their operation. “ That the grant was of sections to be afterwards located, and their location depended upon the route to be afterwards established; when that was settled the location became certain, and the title that was previously imperfect acquired precision and attached to the lands; ” that “ when the location was made and the sections granted ascer tained, the title of the plaintiffs took effect as of the date of the act, . . . having the same operation upon the sections as if they had been specifically described in it;” that, “ as between the United States and the plaintiffs, the right of the latter to a patent became perfect on the approval by the president of the report of the commissioners” on each completed portion of the road. Let the above language, “that similar terms in other acts of congress granting lands have uniformly received this interpretation, unless accompanied with clauses restraining their operation,” be now observed.
Our'attention has been called to the opinion of Deady, J., of the United States district court of Oregon, in the case of The United States v. -, where it is held that “the clause in section 4 of the act under consideration” (the same which is in question in this case), “concerning the lands granted to the corporation ” (the respondent in this case), “as each section of twenty-five miles of the road is constructed and accepted by the grantor, does restrain the operation of the words of present grant in section 3, so that it appears manifest that, while it was the intention of congress to set apart and devote the lands hr question absolutely to the construction of the Northern Pacific Railroad, yet it did not intend to part with the title to them until and only so fast as they were earned by the completion of the work.” Reference is made to support this position to the case of Rice v. Railroad Co. 1 Black, 348, above referred to, where it was held, as stated in the above opinion of Deady, J., that the words of present grant, viz., “there is hereby granted,” did not pass, the title to the territory, taken in connection with another provision in the act, to the effect that no title should vest in the territory until twenty miles of the road were completed and accepted by the secretary of the interior, when a patent should issue for so much of the grant, and so on, as often as twenty miles of the road were so completed and ac cepted.” The learned judge (Deady, J.) further says: “And although there is no express declaration in the Northern Pacific act that the title shall vest in the corporation until the completion of the road, or portions of it, yet the legal effect of the clauses therein, which provided for conveying and confirming the title of the company by patent only upon the completion of the road, or portions of it, is the same.”
The act of congress referred to in the case of M. K. & T. R. R. Co. v. K. P. R. R. Co., as we have already seen, contains a provision that “patents shall issue conveying the right and title to said lands,” under very similar circumstances as provided for the issue of patents to the Northern Pacific Eailroad Company by the act in question. We can fairly presume that the case of Rice v. Railroad Co., supra, was in the contemplation of the learned judge (Field, J.) when he used the language to which we have called special attention, he having written the opinion in Schulenberg v. Harriman, supra.
By positive implication, therefore, it is held, by the use of the above language, in relation to an act of congress containing words of present grant, with also thereafter a provision for the issue of “patents” “conveying the right and title,” etc., that such a provision does not restrain or limit the words of present grant.
Our conclusion, therefore, both upon reason and authority, is that the title of the respondent took effect at the date of the approval of the act of congress; that the location of the route and the survey of the lands gave precision to that title, and caused it to attach to the particular section, as of the date of the approval of the act, as fully as if such particular section had been designated in the act; that the character of the title is that of a grant upon conditions subsequent; and that the office of the patent is to confirm the title as certain designated portions of the road are completed and reported upon. by the commissioners, and render it absolute and unconditional. Ferris v. Coover, 10 Cal. 589.
The grant, being by act of congress, is the highest evidence of title, importing, in the case presented, possession and livery of seizin, and is sufficient, in connection with the other allegations of the complaint, to sustain ejectment.
Judgment affirmed.
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] |
Wade, O. J.
This is an appeal from a judgment against the defendant, rendered upon a verdict of murder in the first degree. The prosecuting attorney, in making his opening statement of the case to the jury on behalf of the territory, said to the jury, in the presence of the court, “that at the time of the homicide nobody was there but the deceased, his wife and children.” The prosecutor then produced testimony tending to show previous threats by the defendant to kill the deceased, and the confession of the defendant that he had killed deceased, and rested the case on the part of the territory, having produced no testimony as to what took place at the killing. Thereupon the defendant moved the court that the prosecution be required to call one Hannah Nelson, wife of the deceased, as a witness; the prosecutor having stated to the jury in his opening statement that she was present and witnessed the homicide. It also appeared in evidence that the wife of the deceased was present at the dwelling-house of the deceased, and in an adjoining room to that in which the deceased was killed, immediately after the homicide. The motion of the de fendant was overruled, and this action of the court is assigned as error. The authorities are clear and conclusive upon the proposition that the prosecution cannot select out part of a transaction and ask a conviction thereon, when testimony showing the whole thereof is within its reach. Says Christiancy, J., in Hurd v. People, 25 Mich. 415: “But the prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly, or by implication, shows but part of the res gestae or whole transaction, if it appear that the evidence of the rest of the transaction is obtainable. This 'would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. It is the res gestae, or whole transaction, the burden of proving which rests upon the prosecution; so far, at least, as the evidence is attainable. It is that which constitutes the prosecutor’s case, and to which the defendant has the right of cross-examination; it is that which the jury are entitled to have before them, and, until this is shown, it is difficult to see how any legitimate inference of guilt or the degree of the offense, can be shown.” “The prosecutor in a criminal case is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed; especially, if it appears to the court that the evidence of the other part is attainable. The only legitimate object of the prosecution is to show the whole transaction as it was, whether its tendency be to establish guilt or innocence.”
In Maher v. People, 10 Mich. 226, the same learned judge says: “And for myself, I am inclined to the opinion that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of and having the means of proving them, should, on principle and in fair ness to the prisoner, be laid before the jury by the prosecution. They naturally constitute the prosecutor’s case; and whenever it appears evident to the court that but part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestee, or-entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think; be the duty of the court to require the prosecutor to show the transaction as a whole.”
In Roscoe, crim. Ev. 135, it is said: “On a trial for murder, where the widow and daughter of the deceased were present at the time when the fatal blow was supposed to have been given, and the widow was examined on the part of the prosecution, Patteson, judge, directed the daughter to be called also, although her name was not on the indictment, and she had been brought to the assizes by the other side. The learned judge observed: ‘Every witness who was present at a transaction of this sort ought to be called; and, even if they give different accounts, it is fit that the jury should hear the evidence, so as to draw their own conclusions as to the real truth of the matter.’ ” Reg. v. Holden, 8 Car. & P. 609; Reg. v. Stroner, 1 Car. & K. 650; Reg. v. Chapman, 8 Car. & P. 559; Reg. v. Orchard, id. note.
The statement of the prosecuting attorney, in opening the case to the jury in presence of the court, is an official statement made under the solemnity of his official oath. In this statement the prosecuting attorney declared to the jury that Hannah Nelson, the wife of the deceased, was present at this homicide. The testimony on the part of the prosecution also showed that she was in a room adjoining that in which the homicide took place, immediately thereafter. Having stated officially to the court and jury that she was present at the homicide, and the proof showing that she was present immediately thereafter, and in all probability at the very act itself, the prosecuting attorney ought to have called this witness, or made some satisfactory explanation to the court why he did not, otherwise a suggestion is raised that there was design and purpose in omitting to call the witness. Especially should she have been called as there was no proof of the circumstances attending the killing in evidence at the time the motion was made. Says Campbell, J., in Wellar v. People, 30 Mich. 23: “ As explained in Hurd v. People, 25 Mich. 406, and in the English cases here referred to, a public prosecutor'is not a plaintiff’s attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty, and he has no right to suppress testimony. The fact that he is compelled to call those witnesses, when he may not always find them disposed to frankness, entitles him, when it appears necessary, to press them with searching questions.”
Judgment reversed, and cause remanded for a new trial.
Judgment reversed. ■
(All the judges concur.)
|
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] |
JUSTICE SHEA
delivered the Opinion of the Court.
¶1 Jeff Fauque appeals from an order of the First Judicial District Court, Lewis and Clark County, affirming the Final Order of the Montana Public Employees’ Retirement Board (PERB) which determined that Fauque is ineligible to receive disability benefits under the Sheriffs’ Retirement Systems (SRS) because he failed to establish that he is permanently disabled due to his Post-Traumatic Stress Disorder (PTSD).
¶2 Fauque presents the following issue for our review:
¶3 Did the District Court err in affirming the disability findings of PERB?
¶4 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Appellant Jeff Fauque was an officer with the Glacier County Sheriff’s Office (GCSO) from 1995 to 2010. As part of his duties, Fauque served as deputy coroner for Glacier County, responding to and investigating fatalities and suicides. Because Glacier County has a small population, Fauque occasionally investigated the deaths of people he knew.
¶6 On October 4,2010, Fauque entered a private residence intending to steal prescription drugs. Fauque subsequently pled guilty to two misdemeanors and surrendered all of his Montana Public Safety Officer Standards and Training certifications and resigned from the GCSO.
¶7 The night of this October incident, Fauque was admitted to the Pathways Treatment Center in Kalispell for opioid addiction. On October 8,2010, Fauque was discharged from Pathways and admitted to the Rimrock Foundation in Billings. At Rimrock, Rick Pullen, D.O., a licensed physician and board-certified psychiatrist, examined Fauque and diagnosed him with PTSD, major depression, and opioid dependence. Dr. Pullen based his diagnosis on Fauque’s self-reported history and symptoms. Fauque was discharged from Rimrock on November 11, 2010. Fauque then sought treatment with Dennis Hanson, a licensed clinical social worker. Counselor Hanson did not testify or submit any reports.
¶8 Randy Webb, M.D., Fauque’s family physician in Cut Bank, had treated Fauque for depression and anxiety for fifteen years. Dr. Webb also diagnosed Fauque with PTSD shortly after his discharge from Rimrock. In August 2011, Fauque sought treatment for his PTSD from Peter Stivers, Ph.D., a clinical psychologist in Great Falls. Drs. Pullen, Stivers, and Webb agreed that Fauque’s opioid dependence developed, in part, when he began self-medicating to treat his then-undiagnosed PTSD, which itself was caused by exposure to traumatic events while employed with the GCSO.
¶9 In January 2011, Fauque apphed for disability retirement benefits from the SRS, claiming he was permanently disabled due to the PTSD he developed while working at the GCSO. PERB denied Fauque’s application on June 9,2011. Fauque requested reconsideration of his application, which PERB denied on December 8,2011.
¶10 In denying Fauque’s application, PERB relied on the opinion of Dean Gregg, Ph.D., a clinical psychologist who had conducted a records review at PERB’s request. Dr. Gregg reviewed Fauque’s application files but did not examine Fauque himself. Although Dr. Gregg agreed that Fauque suffers from PTSD, he disagreed that the PTSD was permanently disabling. Dr. Gregg also noted that Fauque had not been consistent in reporting his history to his various treating doctors, and therefore those treating doctors had incomplete information when diagnosing Fauque.
¶11 Regarding Fauque’s assertion that his PTSD led to his opioid addiction and resignation from the GCSO, Dr. Gregg opined that other issues in Fauque’s life, such as marital problems and family dysfunction, led to his drug use. Dr. Gregg did not believe Fauque’s PTSD was the sole, or even primary, cause of Fauque’s opioid addiction.
¶12 After a hearing on June 21, 2012, the hearing examiner found that Fauque had failed to meet his burden regarding the existence of a disability arising from an injury in the line of duty that prevented his continuing employment. In his Proposed Findings of Fact and Conclusions of Law, the hearing examiner noted that of the three treating doctors who testified, only Dr. Webb treated Fauque before the October incident, and Dr. Webb did not diagnose Fauque with PTSD until after he was diagnosed by Dr. Pullen in October 2010. The hearing examiner agreed with Dr. Gregg’s assessment that Fauque’s treating doctors had incomplete information when diagnosing Fauque.
¶13 PERB adopted the hearing examiner’s Findings of Fact and Conclusions of Law and denied Fauque’s disability claim on January 10, 2013. PERB does not dispute that Fauque suffers from PTSD; however, PERB disputes that Fauque’s PTSD is permanently disabling.
¶ 14 On February 12,2013, Fauque filed a Petition for Judicial Review of PERB’s decision in the Eighth Judicial District, Cascade County. On February 14,2013, the parties filed a joint motion to change venue to the First Judicial District, Lewis and Clark County. After oral argument on July 17,2013, the District Court denied Fauque’s Petition and affirmed PERB’s decision to deny benefits by order dated September 23,2013.
STANDARD OF REVIEW
¶15 A district court reviews the agency’s findings of fact to determine whether they are clearly erroneous. Section2-4-704(2)(a)(v), MCA. The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. Section 2-4-704(2), MCA. The review must be confined to the record. Section 2-4-704(1), MCA.
¶16 We review the district court’s order to determine whether it “properly applied the correct standard of review to the administrative decision of PERB. That is, did the District Court determine whether the administrative findings of fact were clearly erroneous and whether the agency’s interpretation of the law was correct[?]” Weber v. Pub. Emp. Ret. Bd., 270 Mont. 239, 245, 890 P.2d 1296, 1300 (1995).
¶17 The district court applies the following three-part test to determine whether an agency decision is clearly erroneous:
(1) the record will be reviewed to see if the findings are supported by substantial evidence;
(2) if the findings are supported by substantial evidence, it will be determined whether the trial court misapprehended the effect of [the] evidence; and
(3) if substantial evidence exists and the effect of [the] evidence has not been misapprehended, the Supreme Court may still decide 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.
Weitz v. Mont. Dept. of Natural Res. & Conserv., 284 Mont. 130, 133-34, 943 P.2d 990, 992 (1997). We apply the same test when reviewing a district court’s order affirming or reversing an agency decision. America’s Best Contractors, Inc. v. Singh, 2014 MT 70, ¶ 15, 374 Mont. 254, 321 P.3d 95.
¶18 Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Simms v. State Comp. Ins. Fund, 2005 MT 175, ¶ 11, 327 Mont. 511, 116 P.3d 773. The test is not whether the evidence might support a different conclusion, but whether there is substantial evidence in the record to support the conclusion reached by the agency. Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 21, 353 Mont. 507, 222 P.3d 595.
DISCUSSION
¶19 Fauque argues that the District Court erred in affirming PERB’s denial of his disability claim because the denial is not supported by substantial evidence. Fauque contends that PERB improperly deferred to Dr. Gregg’s opinion over the opinions of his treating doctors and that Dr. Gregg did not provide a competent medical opinion in this case.
¶20 Dr. Gregg was retained by PERB under the auspices of § 19-2-406(4), MCA, which allows PERB to retain medical personnel to advise it in assessing the nature and extent of disabling conditions while reviewing claims for disability retirement. “Disability” is defined as:
a total inability of the [PERB] member to perform the member’s duties by reason of physical or mental incapacity. The disability must be incurred while the member is an active member and must be one of permanent duration or of extended and uncertain duration, as determined by [PERB] on the basis of competent medical opinion.
Section 19-2-303(20), MCA. “Total inability” means the member is unable to perform the essential elements of the member’s job duties even with reasonable accommodation. Admin. R. M. 2.43.2602(5) (2014).
¶21 The hearing examiner determined that Fauque failed to meet his burden of showing the existence of a disability that prevented his continued employment with the GCSO. Inreachingthis determination, the hearing examiner relied on the testimony of Dr. Gregg and Wayne Dusterhoff, the Glacier County Sheriff in 2010. Dr. Gregg testified that while he was confident that Fauque suffered from PTSD, he had seen no evidence that his PTSD impaired him at work. Sheriff Dusterhoff, who had worked with Fauque on a daily basis for fifteen years, testified that Fauque did not appear to be impaired at work in any manner before October 2010. Sheriff Dusterhoff was aware that Fauque struggled with depression, but he was unaware that Fauque suffered from PTSD. Sheriff Dusterhoff testified that he could have made accommodations for Fauque, such as relieving Fauque of certain duties as he had done for other deputies or granting Fauque a leave of absence to obtain treatment; however, Fauque had never requested any accommodations before resigning.
¶22 Although Drs. Pullen, Stivers, and Webb testified that Fauque’s PTSD made it impossible to perform the duties of a law enforcement officer, their opinions were based primarily on Fauque’s self-reporting of his condition and its effect on his performance at work. None of Fauque’s treating physicians who testified read the job duty questionnaire Fauque submitted with his benefits application, nor did they speak with anyone other than Fauque about the duties of a GCSO officer. Sheriff Dusterhoff, who has direct and personal knowledge of Fauque’s performance at the GCSO, testified that Fauque performed his duties very competently with no negative performance appraisals and that Fauque himself did not express concern about his ability to do his job until after the October 2010 incident.
¶23 Fauque argues that Dr. Gregg could not provide a competent medical opinion in this case because he did not contact Fauque’s treating physicians nor personally examine Fauque. Therefore, Fauque argues, Dr. Gregg’s opinion does not constitute substantial evidence to support the denial of benefits. We disagree. We rejected a similar argument in EBI/Orion Grp. v. Blythe, 1998 MT 90, 288 Mont. 356, 957 P.2d 1134, in which we held that a psychologist who did not personally examine the claimant but reviewed the case files and observed the claimant’s testimony at hearing had sufficient foundation to give a competent medical opinion.
¶24 Fauque cites Cottrell v. Burlington N. R.R. Co., 261 Mont. 296, 863 P.2d 381 (1993), as a “nearly identical scenario” in which this Court held that a medical records reviewer lacked the foundation to present competent opinions concerning a plaintiffs symptoms and disability. Cottrell is not nearly as identical to the current case as Fauque contends. In Cottrell, the medical records reviewer was a neurosurgeon, Dr. Neil Meyer, who was asked to apportion the plaintiffs damages between the incident which was the subject of his lawsuit and his prior injuries. This Court held that Dr. Meyer’s opinion was properly excluded as lacking foundation because, aside from not examining the plaintiff, Dr. Meyer had not read any deposition testimony or reports from the treating physicians, and knew nothing of the plaintiffs job description. Conversely, in this case Dr. Gregg read the deposition testimony and reports of the three treating doctors and reviewed Fauque’s medical and personnel files, including the job duty questionnaire. Fauque’s reliance on Cottrell is misplaced.
¶25 Relying on our decision in Harris v. Hanson, 2009 MT 13, 349 Mont. 29, 201 P.3d 151, Fauque next argues that Dr. Gregg’s opinion should have been excluded under M. R. Evid. 702. In Harris, we explained that an expert’s reliability is tested in three ways under Rule 702: (1) whether the expert field is reliable, (2) whether the expert is qualified, and (3) whether the expert reliably applied the rehable field to the facts. Harris, ¶ 36. “The question whether a qualified expert reliably applied the principles of that reliable field to the facts of the case is for the finder of fact.” Harris, ¶ 36. Fauque does not dispute that Dr. Gregg satisfied the first two criteria of this test. Fauque takes issue with Dr. Gregg’s opinion under the third criterion. Fauque contends that Dr. Gregg could not reliably apply the field of psychology to the facts of his case because Dr. Gregg did not personally examine him. However, the hearing examiner, sitting as the fact-finder, determined that Dr. Gregg properly applied the principles of psychology to the facts of the case and gave a competent medical opinion on which PERB could rely. The hearing examiner’s reliance on Dr. Gregg’s opinion under these circumstances was not clearly erroneous.
¶26 Fauque argues that the hearing examiner improperly gave greater weight to Dr. Gregg’s opinion than to the opinions of his treating doctors. The opinions of a claimant’s treating physicians are generally entitled to greater weight than the opinions of other experts. Weber, 270 Mont. at 246, 890 P.2d at 1300. However, a treating physician’s opinion is not conclusive. EBI/Orion Group, ¶ 13. The hearing examiner may disregard a treating physician’s medical opinion if there are specific and legitimate reasons to do so. Weber, 270 Mont. at 246, 890 P.2d at 1300. In this case, the hearing examiner set forth specific and legitimate reasons for relying on Dr. Gregg’s opinion and thoroughly explained these reasons in his Proposed Findings of Fact and Conclusions of Law.
CONCLUSION
¶27 The District Court thoroughly reviewed PERB’s findings in this case and concluded that the findings were supported by substantial evidence in the record. The District Court did not misapprehend the effect of the evidence presented and it properly determined that the findings of PERB were not clearly erroneous. Our review of the record does not leave us with the definite and firm conviction that a mistake has been committed.
¶28 We affirm.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT, BAKER and RICE concur.
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CHIEF JUSTICE McGRATH
delivered the Opinion of the Court.
¶1 The Estate of Marilyn M. Hedrick and Jacquelyn Sullivan, as successor trustee to the Marilyn M. Hedrick 1996 Living Trust, appeal from an order of the Thirteenth Judicial District, Yellowstone County, denying their motions for summary judgment and granting summary judgment in favor of petitioner and objector Leroy Lamach.
¶2 We restate the issue presented for review as whether the District Court erred when it concluded that the joint will executed by Marilyn and Stanley Hedrick prohibited Marilyn from transferring property to a trust after Stanley’s death.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Marilyn and Stanley Hedrick executed a joint will on July 18, 1983. Each had three children from previous marriages. The will read, in part:
THIRD: We mutually give to whichever of us shall be the survivor the entire residue of our property which we may respectively own at our death.
FOURTH: The survivor of us gives the entire residue of his or her property which he or she may own at the time of death to our children by former marriages, JUDITH A. ARMOLD, KENNETH D. HEDRICK, SHEENA S. LAMACH, PAUL H. SIMPSON, JACQUELYN M. KRUEGER and JERRY J. SIMPSON, in equal shares, share and share alike.
SIXTH: Our purpose is to dispose of our property in accordance with a common plan. The reciprocal and other gifts made herein are in fulfillment of this purpose and in consideration of each of us waiving the right, during our joint lives, to alter, amend or revoke this Will in whole or in part, by codicil or otherwise, without notice to the other, or under any circumstances after the death of the first of us to die.
Stanley died in 1995, and his estate passed to Marilyn. In 1996, Marilyn transferred much of her property to the Marilyn M. Hedrick 1996 Living Trust. Marilyn’s three children and one of Stanley’s children were beneficiaries of the trust. Jacquelyn (Krueger) Sullivan was named successor trustee. Two of Stanley’s children, Judith Armold and Sheena Lamach, were not included as beneficiaries. Sheena Lamach is incapacitated and resides in an extended care facility.
¶4 Marilyn died in 2012 and the estate entered informal probate. Under the terms of the will, the residue of Marilyn’s estate was to be divided equally among the six children. The residue consisted of the proceeds from the sale of Marilyn’s home and personal property, totaling $235,722.64. Sheena Lamach’s husband, Leroy Lamach, as her attorney-in-fact, filed a petition objecting to this proposed distribution. Lamach argued that the transfer of assets to the trust violated the terms of the joint will, and asked that the trust assets be distributed equally among the six children. Sullivan was joined as a third party.
¶5 The parties agreed there were no genuine issues of material fact regarding the existence or contents of the will and filed cross-motions for summary judgment asking the District Court to interpret the will as a matter of law. At the summary judgment hearing, Lamach stated his assumption that the trust was revocable. On the basis of that assumption, he claimed trust property had not effectively been transferred out of Marilyn’s ownership during her lifetime. He claimed the trust operated only to change the distribution of Marilyn’s property after her death, and so violated the intent of the joint will. No evidence of the terms of the trust was offered. The District Court responded that it intended to address only the interpretation of the will, not the terms of the trust.
¶6 Following the hearing, the District Court granted summary judgment in favor of Lamach. The District Court concluded that although “it is true that Mrs. Hedrick received the entirety of Mr. Hedrick’s estate upon his death, absent any restrictions,” she was not free to “create a trust that essentially supersedes the Will, preventing two of the six children from receiving their fair share of the estate.” The District Court found that creation of the trust, though it did not in fact alter the will, “substantially altered the result of distribution.” This appeal followed.
STANDARD OF REVIEW
¶7 Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c). This Court reviews a district court’s grant of summary judgment de novo, applying the same criteria as the district court. In re Estate of Kuralt, 1999 MT 111, ¶ 19, 294 Mont. 354, 981 P.2d 771. The interpretation and construction of a will presents a question of law, which we review for correctness. In re Estate of Ayers, 2007 MT 155, ¶ 12, 338 Mont. 12, 161 P.3d 833.
DISCUSSION
¶8 Whether the District Court erred when it concluded that the joint will prohibited Marilyn from transferring property to a trust after Stanley’s death.
¶9 The words used in a will are interpreted according to their ordinary, grammatical sense, unless there is evidence of a clear intent otherwise. Ayers, ¶ 14. The object of judicial interpretation of a will is to determine the intent of the testator. In re Estate of Snyder, 2000 MT 113, ¶ 10, 299 Mont. 421, 2 P.3d 238. Interpretation of the will should give effect to every provision of the will. Snyder, ¶ 10.
¶10 The joint will states that the surviving spouse will receive the “entire residue” of the property owned by the deceased spouse at the time of his or her death. No restrictive language limits how the surviving spouse may use this property. At the summary judgment hearing and on appeal, Lamach acknowledged that Marilyn “had no limitations as to how to use or dispose of any of the inherited property during her life.” The District Court agreed. Marilyn was free to transfer property during her lifetime.
¶11 The joint will also states that, upon the death of the surviving spouse, “the entire residue of his or her property which he or she may own at the time of death” is to be divided equally among the six children. The “residue,” in its ordinary sense, refers to the property “left over after a part is removed or disposed of.” Black’s Law Dictionary 1424 (Bryan A. Gamer ed., 9th ed., West 2009); see also Black’s Law Dictionary at 629 (“residuary estate”). Property that has been transferred to a trust during the lifetime of the deceased is not considered part of his or her probate estate. Cate-Schweyen v. Cate, 2000 MT 345, ¶ 26, 303 Mont. 232, 15 P.3d 467; 34A Am. Jur. 2d Federal Taxation ¶ 110,102 (2010). The will itself indicates that the “residue” is property owned by the deceased at the time of death. Properly transferred by Marilyn during her lifetime is not part of the “residue” to be distributed among the six children.
¶12 Finally, the joint will states Stanley and Marilyn’s intention to dispose of their property in accordance with a “common plan,” and prohibits the surviving spouse from altering, amending, or revoking the will “under any circumstances after the first of us to die.” Where there is a “clear and unequivocal devise” of property, the use of that property can be limited only by language that is “unmistakable, clear, convincing, explicit, unequivocal, and practically free from doubt.” In re Estate of Bolinger, 284 Mont. 114, 124, 127, 943 P.2d 981, 987, 989 (1997) (internal quotes omitted). The general intent stated in a will may not be read to override its specific provisions. See Bolinger, 284 Mont. at 126-27, 943 P.2d at 988-89. The will plainly leaves the entire residue of Stanley’s estate to Marilyn. The only explicit restriction on this devise is that Marilyn may not alter, amend, or revoke the will. The only explicit devise to the six children is that they are to receive equal shares of the residue of Marilyn’s estate. We may not construe the general purpose of the will in a way that alters its specific provisions by imposing further restrictions on Marilyn’s inheritance or granting additional rights to the children.
¶13 The sole issue presented for summary judgment was whether the will, by its terms, allowed Marilyn to transfer property into a trust during her lifetime. Lamach does not, in fact, contest that Marilyn had the right to transfer property. Instead, he claims that creation of the trust did not effectively transfer property out of Marilyn’s control during her lifetime. If Marilyn retained ownership of trust property, Lamach argues, it should be considered part of the residue of her estate and distributed equally among the six children. The Estate and Sullivan, on the other hand, ask this Court to declare that trust assets are not part of the estate and order distribution of trust assets according to the terms of the trust. These issues relate to the validity of the trust, not the interpretation of the will. No evidence has been produced regarding the terms of the trust, and the issues raised are therefore inappropriate for resolution on summary judgment. The parties may address the validity of the trust in subsequent proceedings.
CONCLUSION
¶14 For the reasons stated above, we reverse the order of the District Court and remand for entry of summary judgment in favor of the Estate and Sullivan on the issue of whether the joint will allowed Marilyn to establish a trust during her life.
¶15 Reversed and remanded.
JUSTICES WHEAT, RICE, BAKER and McKINNON concur.
|
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Pamela A. Mills (Pamela) appeals from an Order of the Eighth Judicial District Court, Cascade County, modifying child support. We affirm in part and remand in part for further proceedings.
¶2 The issues Pamela raises on appeal are whether the District Court erred in finding a sufficient change of circumstances to modify child support, and whether the District Court erred in imputing income of $21,835 per year to Pamela for the purposes of determining the amount of child support.
¶3 The marriage of Pamela and Michael J. Mills (Michael) was dissolved by decree entered July 6,1995. They are the parents of two children: Kyndal, born May 9,1990, and Logan, born August 19,1991. The parties entered into a dissolution agreement, adopted by the District Court, wherein Michael agreed to pay Pamela child support of $157.50 per month per child, for a total of $315.00 per month. The agreement also provided that they would share equally the children’s medical costs not covered by Medicaid, and both children would primarily reside with Pamela. The record reflects that a car accident rendered Pamela paraplegic, at least to some degree, before the dissolution.
¶4 On September 11, 2003, Michael filed a motion to modify child support. Pamela responded by filing a motion to increase child support. They reached an agreement and filed a stipulation to modify child support. The District Court issued an order adopting the stipulation on March 11, 2004.
¶5 Pursuant to the 2004 order, Michael was to pay Pamela child support of $250 per month per child, for a total of $500. Also, Michael was to stop providing health insurance for the children, but was to pay 90% of their health care costs. Additionally, Pamela was to apply for health insurance coverage for Kyndal and Logan from the government sponsored CHIPS program, which provides health insurance for low income families. Pamela applied for coverage; however, CHIPS denied her application.
¶6 On June 30, 2004, Michael again moved to modify the child support arrangements, and also to modify the parenting plan due to changed circumstances. Kyndal had decided that she wanted to live primarily with her father. Along with his motion, Michael submitted a proposed parenting plan whereby Kyndal would generally reside with him, and Michael and Pamela would each pay half of the health care expenses for both children. Later, on October 26, 2004, Michael filed a proposed parenting plan in which he sought an order that neither he nor Pamela would pay child support, because each parent would have one of the children living with them and they had similar annual incomes.
¶7 At the hearing on Michael’s motion, there was substantial testimony concerning Pamela’s income and potential income. The evidence showed that Pamela had, during 2003, worked full-time at FMC Leasing, earning $19,096.73. Additionally, her 2003 U.S. income tax return showed income of $21,835. Pamela testified that her physical health forced her to leave FMC leasing, because she was physically unable to perform the required work.
¶8 The record reflects that Pamela began working part-time at a jewelry store in October of 2003. She first testified that her monthly gross income was capped at $700 to avoid losing at least a part of her disability payments. But, she admitted on cross-examination that she could make up to $810 without affecting her disability payments. Pamela took the position that child support should be the same amount ordered in March of 2004, based on her actual income.
¶9 Pamela has a bachelor’s degree in counseling psychology. However, licensing in this field requires a master’s degree, and she claimed that her financial situation made pursuit of a master’s degree unfeasible. Pamela also claimed that her mother’s illness and her own health conditions prevented her from looking for employment that would not require her to be on her feet as much as she was during her employment at FMC Leasing. Also, she previously directed productions for a group known as First Night Great Falls, for which she received compensation. She kept less than $700, and donated any remaining compensation back to the group. She said that she did not plan to direct again.
¶10 Pamela was also an unsuccessful candidate for Cascade County Commissioner. A newspaper article was introduced which quoted her as saying that she “could bring energy, enthusiasm, and pride back to the commission.” On the witness stand, Pamela expressed uncertainty as to whether she could have physically handled the task of being a county commissioner, but had thought it possible. A Cascade County Commissioner is paid $47,000 a year.
¶11 After hearing the evidence, by order of November 18, 2004, the District Court granted Michael’s motion to modify the parenting plan to the effect that Kyndal would live primarily with him. The District Court also found that Kyndal’s change of residence constituted a change of circumstances, citing § 40-4-208(2)(b)(i), MCA. The order required counsel for the parties to submit calculations of the amount of child support owed under the Montana Child Support Guidelines. Without making any findings of fact, the District Court ordered that, in applying the guidelines, Pamela’s income was to be entered into the calculations as $21,835, and Michael’s income was to be entered as $29,500.
¶12 Counsel applied the child support guidelines as ordered, and submitted the result to the District Court. The District Court adopted the calculation by order dated December 13, 2004, and required a monthly payment of child support from Michael to Pamela of $ 104. The final order also required Michael to pay 63% of the children’s medical expenses, with Pamela paying the remainder. This appeal followed.
¶13 Pamela appeals the reduction in child support paid to her. She claims that the single change in circumstances of Kyndal living with her father is insufficient to justify a change in child support because the District Court order from March of 2004 provided that child support was $250 per month, per child. Thus, she argues, there has been no change in circumstances as a matter of law, and she should still receive $250 per month because one child remains with her. She also argues that the evidence does not support the use of $21,835 as her income in the calculation of child support under the guidelines.
¶14 When a district court determines whether a change in circumstances is sufficient to justify a change in child support, we will not disturb that determination absent an abuse of discretion. In re Marriage of Clyatt (1994), 267 Mont. 119, 122, 882 P.2d 503, 505. We give great deference to the district court’s judgment, and presume its decision to be correct. Clyatt, 267 Mont. at 122, 882 P.2d at 505.
¶15 Section 40-4-208(2)(b)(i), MCA, provides:
(2)(b) Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.
¶16 It is uncontested that Kyndal no longer resided with Pamela, which reduced her household by one person, and that Michael’s household increased by one person. This change in circumstances would tend to render the prior child support order unconscionable as Pamela’s expenses would decrease and Michael’s would increase. To simply reduce the child support by one half, because one of the two children went to live with the other parent, is not required as a matter of law. The application of the child support guidelines takes into account not only the income and expenses of the parents, but also the size of their households. The guidelines call for applying a primary child support allowance per year which varies depending on the persons in a household. Rule 37.62.121, ARM. In addition, the change in primary residence of a child could well affect the amount of Federal and Montana income tax a parent is obligated to pay, which amount is a deduction from income in the child support calculations. Rule 37.62.110(1)(d), ARM. We conclude that the District Court did not abuse its discretion in determining that Kyndal’s change in primary residence from her mother to her father was a substantial change in circumstances.
¶17 Pamela also claims that the District Court erred in ordering that her income be included as $21,835 in the worksheet used to compute child support under the guidelines. As the evidence is clear that she no longer earned that amount at the time of the hearing, she posits that the District Court must have imputed additional income to her in violation of Rule 37.62.106(9)(b), ARM. Pamela argues it was improper to impute income to her because the evidence shows that she is physically disabled and cannot earn a greater income than she did at the time of the hearing.
¶18 This Court reviews a district court’s award of child support for abuse of discretion, to determine if the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Helzer, 2004 MT 352, ¶ 20, 324 Mont. 371, ¶ 20, 102 P.3d 1263, ¶ 20. The District Court must enter findings of fact in ruling on motions to amend a parenting plan, as an aid to the trial judge’s process of adjudication, for purposes of res judicata and estoppel by judgment, and as an aid to the appellate court on review. Failure to do so is an abuse of discretion. In re Marriage of Lawrence, 2005 MT 125, ¶ 15, 327 Mont. 209, ¶ 15, 112 P.3d 1036, ¶ 15 (citing In re Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d 936, 938). These same reasons for requiring findings of fact apply to rulings on motions for a change in child support. We have stated that a district court is required to make specific findings of fact in writing to explain its calculation of child support. In re Marriage of Stufft (1997), 286 Mont. 239, 250, 950 P.2d 1373, 1379.
¶19 Pamela is correct that Rule 37.62.106(9)(b), ARM, provides that income should not be imputed to a parent that is physically or mentally disabled, to the extent that parent cannot earn income. However, the evidence in this case might support a determination that Pamela was voluntarily underemployed, or that she had the ability to earn a greater amount because of her qualifications and physical and mental abilities. If such were the case, it would be proper to impute income to her under the guidelines. Rule 37.62.106(6), (7), ARM.
¶20 The District Court made no findings of fact concerning its decision to order that Pamela’s income be included in the child support guidelines calculations at $21,835. The District Court gave no reason whatever for setting her income at this amount. While we do not require specific findings of fact on every element in Rule 37.62.106(6), (7), and (9), ARM, the District Court must set forth the essential and determining facts underlying its decision. Lawrence, ¶ 18. Because the District Court’s order of November 18, 2004, is devoid of any findings of fact, we are unable to determine the reasons why the District Court ordered that Pamela’s income be entered in the child support calculations at $21,835. Thus, the District Court abused its discretion in setting the amount of child support. Heltzer, ¶ 25; Lawrence, ¶ 18.
¶21 We affirm the order of the District Court that there was a change in circumstances sufficient to modify child support. We remand to the District Court for findings of fact and conclusions of law sufficient to allow a meaningful review of the calculation of child support under the Montana Child Support Guidelines.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, COTTER and NELSON concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Angela Stringer-Altmaier (Angela) appeals an Order of the District Court for the Eighth Judicial District, Cascade County, affirming a decision of the Montana Human Rights Commission (the HRC) that Fred Haffner (Fred) and his mother, Janet Haffner-Lynn (Janet), did not discriminate against her. Angela appeals. We reverse and remand for further proceedings consistent with this Opinion.
¶2 We address the following issue on appeal: Whether the District Court erred in affirming the HRC’s reversal of the Final Agency Decision.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 29, 2001, Angela filed three Complaints with the HRC. In her Complaints, Angela alleged that Fred and Janet, doing business as the R&R Lounge and Casino; Good Time Charlie’s Restaurant; and Cody Bill’s Steakhouse (collectively referred to hereinafter as “Respondents”), discriminated against Angela in her employment on the basis of sex when she was subjected to a sexually hostile and offensive work environment. Janet owned all three businesses and Fred managed some or all of the businesses for Janet. Angela alleged in her Complaints that Fred sexually harassed her and that when she objected to this hostile work environment, Janet forced her to quit.
¶4 Angela worked from 6:00 p.m. until 2:00 a.m. as a bartender for Respondents. She claimed that she specifically requested this evening shift when she was hired because she is a single mother and the daycare and kindergarten schedule for her daughter required continuity of care and transportation. Angela alleged in her Complaint that after she complained to Janet about Fred’s conduct, Janet changed the work schedule and switched Angela to day shifts. According to Angela, when she called Janet to protest the change in shifts and to inform Janet that she could not work those shifts because of her child, Janet told her that if she couldn’t work the day shifts she would have to quit.
¶5 On July 30, 2001, after investigating Angela’s Complaints, the HRC issued a finding of reasonable cause to believe that the Complaints had merit. The HRC consolidated the three cases and a contested case hearing was conducted by a Hearing Examiner on April 8-11, 2002. The Hearing Examiner issued a Final Agency Decision on July 19, 2002, wherein he found the following facts:
9. In 1990, ten years before [Angela] came to work for [Janet], three former employees of the business filed Human Rights Act complaints of sex discrimination, alleging that [Fred] had subjected them to harassment and hostile treatment because of their sex (female). After a 1991 consolidated contested case hearing on all three complaints, the hearing officer issued a proposed commission decision finding against two of the charging parties and in favor of the third.... The cases settled before the Commission acted upon the proposed decision....
11. In the course of his work in the business, [Fred] frequently would visit with customers and employees in the bar. He often embarked upon sexual flirtations with women, sometimes touching them. He made suggestive comments about individuals’ attire or bodies. He sometimes used sexually explicit words to describe individuals. He sometimes displayed sexually suggestive objects (such as thong underwear with the business’ name on it) in the workplace.
13. In December of2000, [Fred] told [Angela] she was required to wear an elf costume to work for Christmas. [Angela] resisted, because she thought the costume was unflattering and humiliating. [Fred] insisted that she not only wear it, but try it on for him. After continued resistance, she agreed to try on the costume, because he was one of her supervisors. Because she was already wary of [Fred], she agreed with a fellow employee, Rochelle Johnson Spencer, that if Spencer did not see [Angela] within five minutes after [Angela] went downstairs with [Fred], [Spencer] should come looking for her. [Fred] took [Angela] downstairs, and gave her a costume to try on in the bathroom. While she was in the bathroom, he stayed outside the door asking her how it fit, and asking her to come out. Very uncomfortable, [Angela] finally emerged from the bathroom. At that point, [Fred] began touching and feeling the costume, getting down on his knees and stroking first the outside of [Angela’s] legs in the costume (tightly fitting tights) and then the insides of [Angela’s] legs. [Angela] was “frozen” and did not know what to do. At that point, Spencer came downstairs and [Fred] stopped touching [Angela] and got to his feet.
20. [Janet] redid the work schedule and changed [Angela] to day shifts. [Janet] rationalized this change as necessary because [Angela’s] family was too frequently in the bar and casino when [Angela] was working, because [Angela] was not performing acceptably, because [Angela’s] family included “undesirables,” because [Angela] herself had faced criminal charges and because [Angela] required more training. In fact, [Janet] changed [Angela’s] shift as the first step in a plan to either force [Angela] to quit or to fire here because she had complained about [Fred]. [Janet] also changed the schedules for a number of other employees at the same time. Those changes did not transform her motives for changing [Angela’s] schedule.
¶6 Based in part on these facts, the Hearing Examiner determined that Respondents illegally discriminated against Angela by subjecting her to sexual harassment in her employment in a continuing course of conduct. The Hearing Examiner awarded Angela $1050.83 for lost wages and prejudgment interest, as well as $7000.00 for emotional distress.
¶7 Respondents appealed the Hearing Examiner’s decision to the Human Rights Commission contending that this case should have been pleaded as a retaliation case. Respondents did not dispute the Findings of Fact in the Final Agency Decision, instead, they contested the application of the law to those findings. On December 30, 2002, after listening to argument and reviewing the record, the HRC issued its Order Reversing Final Agency Decision.
¶8 Angela petitioned for judicial review. On April 15, 2004, the District Court entered an Order affirming the HRC’s determination. Angela then appealed to this Court.
STANDARD OF REVIEW
¶9 This Court reviews a district court’s conclusions of law to determine whether the district court’s interpretation of the law is correct. Connell v. State, Dept. of Social Services (1997), 280 Mont. 491, 494, 930 P.2d 88, 90 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).
DISCUSSION
¶10 Whether the District Court erred in affirming the HRC’s reversal of the Final Agency Decision.
¶11 In its Final Agency Decision, the Hearing Examiner concluded that Respondents unlawfully altered the terms of Angela’s employment by making sexual harassment a condition of her employment. Angela contends on appeal that the HRC and the District Court erred by reversing the Hearing Examiner’s decision after they improperly reweighed the facts. Angela argues that Montana law prohibits the HRC from rejecting or modifying the Hearing Examiner’s findings of fact unless it states with particularity that those findings were not based on competent substantial evidence. Here, Angela claims that those findings were, indeed, based on competent substantial evidence.
¶12 Angela also argues that the HRC and the District Court erred in concluding that this case should have been, but was not, pleaded as a retaliation claim. Angela maintains that retaliation was pleaded, but the Hearing Examiner applied the law to the facts as he found them and concluded that the facts proved a discriminatory hostile work environment claim.
¶13 Respondents contend that Angela did not appeal the Hearing Examiner’s finding and conclusion that Angela failed to timely plead a retaliation claim. Respondents maintain that because Angela argues for the first time on appeal that she properly pleaded a retaliation claim, she has waived her right to argue that the Hearing Examiner was incorrect.
¶ 14 Respondents also maintain that the Hearing Examiner found that Fred’s conduct did not create a hostile work environment, rather, it was Janet’s reaction to Angela’s complaint that created the hostile work environment. Consequently, Respondents contend that because Janet’s conduct was not driven by Angela’s sex, it cannot be used to support a claim of a hostile work environment.
¶15 We do not address the issue of whether Angela failed to properly plead a retaliation claim as we find Angela’s claim regarding a hostile work environment dispositive of this case.
¶16 Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Beaver v. DNRC, 2003 MT 287, ¶ 29, 318 Mont. 35, ¶ 29, 78 P.3d 857, ¶ 29 (quoting 42 U.S.C. § 2000e-2(a)(1)).
¶17 Montana law also prohibits employment discrimination based on sex. See § 49-2-303(1), MCA. Because the Montana Human Rights Act was closely modeled after Title VII, we have determined that “reference to federal case law is both appropriate and helpful” in construing the Montana Human Rights Act. Harrison v. Chance (1990), 244 Mont. 215, 221, 797 P.2d 200, 204 (citing Johnson v. Bozeman School Dist. No. 7 (1987), 226 Mont. 134, 139, 734 P.2d 209, 212).
¶18 The United States Supreme Court has held that under Title VII, “[wlithout question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Harrison, 244 Mont. at 221, 797 P.2d at 204 (quoting Meritor Savings Bank, FSB v. Vinson (1986), 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49). This Court similarly held in Harrison that sexual harassment is sexual discrimination under the Montana Human Rights Act.
When sexual harassment is directed at an employee solely because of gender, the employee is faced with a working environment fundamentally different from that faced by an employee of the opposite gender. That difference constitutes sexual discrimination in employment.
Harrison, 244 Mont. at 221, 797 P.2d at 204 (internal citations omitted).
¶19 There are two forms of sexual harassment that violate Title VII’s prohibition against workplace discrimination: (1) harassment that involves the conditioning of concrete employment benefits on sexual favors (quid pro quo); and (2) harassment that creates a hostile or offensive work environment. Meritor, 477 U.S. at 62, 106 S.Ct. at 2403.
¶20 The United States Equal Employment Opportunity Commission (the EEOC) determined long ago that “Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult.” Meritor, 477 U.S. at 65, 106 S.Ct. at 2405. In 1980, the EEOC promulgated the following guidelines in identifying sexual harassment:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions, affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Harrison, 244 Mont. at 221, 797 P.2d at 203-04 (quoting 29 C.F.R. § 1604.11(a)).
¶21 Furthermore, in Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295, the United States Supreme Court held that
whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it reasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.
¶22 In the case sub judice, Angela needed to satisfy all of the following elements to prove her claim of a hostile work environment':
1. she was subjected to verbal or physical conduct of a sexual nature;
2. the conduct was unwelcome; and
3. her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.
Meritor, All U.S. at 65, 106 S.Ct. at 2404-05. The Hearing Examiner found in Angela’s favor and determined that
[Fred] did subject [Angela] to verbal and physical conduct of a harassing nature and the conduct was unwelcome. However, until [Angela] complained to [Janet], the conduct was borderline with regard to whether it was severe or pervasive enough to alter the conditions of [Angela’s] employment and create a hostile work environment .... The circumstance that created the hostile environment was [Janet’s] reaction to the complaint. [Emphasis added.]
¶23 In reversing the Hearing Examiner’s decision, the HRC determined that retaliation or retaliatory conduct by Janet was not the type of conduct referred to in the three-prong test for hostile work environment and that while the Hearing Examiner’s findings may support a conclusion that Janet’s conduct was retaliatory, the findings do not support a conclusion that Janet’s conduct was driven by Angela’s sex. Consequently, the HRC determined that Janet’s conduct could not be used to support the elements in a claim for hostile work environment.
¶24 Respondents are correct in asserting that to be actionable under Title VII and the Montana Human Rights Act, sexual harassment must be because of gender. Oncale v. Sundowner Offshore Services (1998), 523 U.S. 75, 79-80, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201; Harrison, 244 Mont. at 221, 797 P.2d at 204. The express language contained in Title VII and the MHRA only makes it unlawful employment practice for an employer to discriminate “because of ... sex.” 42 U.S.C. § 2000e-2(a)(1); § 49-2-303(1)(a), MCA. Or, as Respondents point out, there can be no sexual harassment where actions are taken regardless of “gender” or “sex.”
¶25 However, Respondents are incorrect when they maintain that Angela must use only evidence of Fred’s conduct toward her to prove her claim for a hostile work environment. Respondents, the HRC and the District Court take too narrow a view when they conclude that Janet’s conduct could not have been premised upon sex. The fact is that Angela was subjected to a hostile work environment by virtue of her sex and Janet’s refusal to confront that problem along with her statement that Angela should put up with it, is sufficient to impose liability on Janet as the employer. To hold otherwise simply ignores the vicarious liability that Janet must suffer for failure to remedy the problem.
¶26 In Faragher v. City of Boca Raton (1998), 524 U.S. 775, 807, 118 S.Ct. 2275, 2292, 141 L.Ed.2d 662, the United States Supreme Court adopted the following holding “to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VU’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” To that end the Supreme Court held that
[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proofby a preponderance of the evidence.... No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. [Emphasis added.]
Faragher, 524 U.S. at 807-08, 118 S.Ct. at 2292-93 (citing Burlington Industries, Inc. v. Ellerth (1998), 524 U.S. 742, 762-63, 118 S.Ct. 2257, 2269, 141 L.Ed.2d 633).
¶27 Similarly, this Court has previously held that “culpable acts of continuing discrimination in the work place primarily [take] the form of the employer’s failure to seriously and adequately investigate and discipline [the harasser] following the assault and the employer’s subsequent failure to protect [the victim] on the job.” Benjamin v. Anderson, 2005 MT 123, ¶ 54, 327 Mont. 173, ¶ 54, 112 P.3d 1039, ¶ 54 (emphasis added).
¶28 In this case, Fred’s harassment culminated in a tangible employment action-an “undesirable reassignment” to a schedule that Angela was unable to work because of her child, thereby forcing Angela to quit. Moreover, when Angela complained to Janet about Fred’s behavior, rather than disciplining Fred or attempting to protect Angela on the job, Janet told Angela that as a bartender Angela would need to be able to deal with sexual comments and that people misunderstood Fred because he is overly friendly. By failing to do anything to change Fred’s behavior, Janet created a workplace permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of Angela’s employment and create an abusive working environment. Beaver, ¶ 30 (citing Meritor, 477 U.S. at 67, 106 S.Ct. at 2405).
¶29 Based on the foregoing, we conclude that ¶ 23 of the Hearing Examiner’s Findings of Fact is dispositive of this case:
[Janet] did not tolerate a female employee criticizing her son’s behavior toward women. Because of her refusal to consider any complaints against [Fred], and her hostile acts toward [Angela] because she complained, [Janet] made it a condition of employment that [Angela] endure [Fred’s] conduct without complaining or resisting. [Janet] had notice of prior complaints regarding sexual harassment of female employees by [Fred]. She rejected all such complaints. [Janet] does not believe that her son ever sexually harassed anyone at any time, or that he ever would. [Fred’s] conduct toward [Angela] and around her was offensive, but it was [Janet’s] response to [Angela’s] complaint that created the hostile environment that [Angela] had feared. [Emphasis added.]
¶30 Accordingly, we hold that the District Court erred in affirming the HRC’s reversal of the Final Agency Decision and we reverse and remand for further proceedings consistent with this Opinion.
¶31 Reversed and remanded.
CHIEF JUSTICE GRAY, JUSTICES COTTER, WARNER, LEAPHART and RICE concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Appellant Daniel B. Crosby (Crosby) appeals from the denial of his petition for postconviction relief following his conviction in 1996 for sexual intercourse without consent. Crosby premised his petition in part on the fact that the victim, Crosby’s daughter, recanted her testimony nine years later. We reverse and remand.
¶2 We rephrase and address the following issues on appeal:
¶3 1) Did the District Court apply the proper standard to evaluate whether the new testimony entitled Crosby to postconviction relief, when it concluded as a matter of law that the victim’s recanting testimony was false?
¶4 2) Did the District Court abuse its discretion when it denied Crosby’s motion to strike a portion of Dr. Stratford’s testimony?
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶5 A jury convicted Crosby of sexual intercourse without consent on January 20, 1996, following a five-day trial. The victim of the crime, Crosby’s then ten year-old daughter, Shawnetta Crosby (Shawnetta) testified against Crosby at the trial. The District Court sentenced Crosby to ten years at the Montana State Prison, with seven years suspended. Crosby filed a timely notice of appeal, but later asked this Court to dismiss his appeal pursuant to a plea agreement he had entered with the State on an unrelated charge.
¶6 Crosby filed a petition for postconviction relief on February 26, 2003, alleging that newly discovered evidence would demonstrate his actual innocence. Shawnetta’s sworn statement, in which she recanted her 1996 trial testimony, accompanied the petition. The District Court scheduled an evidentiary hearing to address Crosby’s petition for postconviction relief and entertained pre-hearing motions. Prior to the hearing, the court issued an order granting in part and denying in part Crosbys motions in limine. The District Court also announced that, in determining whether the recanting testimony entitled Crosby to a new trial, it would apply the standard established in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268 (overruled by State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099), and first conclude whether the recanting testimony was true. Then, only if the court deemed the recanting testimony true, it would apply the six-factor test in State v. Abe, 2001 MT 260, 307 Mont. 233, 37 P.3d 77, to analyze whether the new evidence entitled Crosby to a new trial.
¶7 The District Court held the evidentiary hearing on June 23,2004. Shawnetta, then age 21, testified that her mother had influenced her to accuse her father twelve years prior, and that the events she described when she testified at Crosby’s trial did not occur. Crosby and the State each presented expert witnesses to support their respective positions concerning, among other matters, the credibility of childhood testimony given under the type of stressful home conditions presented in this case.
¶8 The court issued its findings of fact, conclusions of law and order denying Crosby’s motion for postconviction relief on July 22, 2004. Crosby appealed. The State responded, and then filed a statement of supplemental authority on December 29,2005, following our decision in Clark.
STANDARD OF REVIEW
¶9 We review a district court's denial of a petition for postconviction relief to determine whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Jenkins, 2001 MT 79, ¶ 9, 305 Mont. 95, ¶ 9, 23 P.3d 201, ¶ 9.
¶10 We review a district court’s evidentiary rulings for an abuse of discretion. State v. Grixti, 2005 MT 296, ¶ 14, 329 Mont. 330, ¶ 14, 124 P.3d 177, ¶ 14.
ISSUE ONE
¶11 Did the District Court apply the proper standard to evaluate whether the new testimony entitled Crosby to postconviction relief, when it concluded as a matter of law that the victim’s recanting testimony was false?
¶12 In its order denying Crosby’s petition for postconviction relief, the District Court concluded as a matter of law that the recanting testimony given by Shawnetta was untrue. Crosby contends that the District Court improperly imposed the standard taken from Perry over the proper criteria established in Abe. Crosby states specifically that the criterion in Perry that requires the judge to determine “whether the recantation is true” is an improper application of the law, as Montana case law has evolved to replace this standard with a multifactored test as appears in Abe at ¶ 10 and State v. Cline (1996), 275 Mont. 46, 52, 909 P.2d 1171, 1175.
¶13 The State responds that Crosby’s petition is not properly before this Court because Crosby’s failure to file his postconviction petition within one year after his conviction deprived the District Court of jurisdiction. The State claims further that the plea agreement Crosby entered with the State in 1997 estops him from now appealing his conviction for sexual intercourse without consent. Lastly, the State argues that even if the District Court applied the Perry principles, it applied the proper standard nonetheless, and Crosby did not suffer prejudice. We address these arguments in turn.
¶14 The State asserts that the one year time limit for filing a petition for postconviction relief following a defendant’s conviction, found at § 46-21-102(1), MCA, barred Crosby from bringing his claim. The State’s brief references only a “clear miscarriage of justice” as the exception to the time limitations the statute establishes. The State reasons that since the District Court deemed the new evidence untrue, the “miscarriage of justice” exception does not apply.
¶15 This position wholly ignores, however, the exception to the one year time limitation to file petitions for postconviction relief found in § 46-21-102(2), MCA. Section 46-21-102(2), MCA, states that the exception applies when a claim simply “alleges the existence of newly discovered evidence that, if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted....” (emphasis added). Thus, the plain language of the statute does not require that the newly discovered evidence be proven true before the court can hear the petition for postconviction relief. Further, as discussed below, the State’s position that the defendant must prove to the judge that the newly discovered evidence is true before the defendant is entitled to postconviction relief is incorrect, as it is premised upon an improper standard for evaluating new evidence. We conclude that the present situation falls squarely within the exception to the one year limit for filing petitions for postconviction relief found at § 46-21-102(2), MCA, and, consequently, Crosby is not statutorily barred from bringing his petition.
¶16 The State claims next that if this Court entertains the present appeal, it will “be assisting Crosby in escaping the obligations of his plea agreement after he has already received its benefits” in contravention of our prior case law. The State presented the identical argument to the District Court and the court did not address it. Our review of the 1997 plea agreement demonstrates that Crosby already completed his obligations under that agreement, and that the agreement did not implicate Crosby’s right to file a petition for postconviction relief. We therefore conclude that the State’s argument that the plea agreement entered in 1997 bars Crosby’s present appeal lacks merit.
¶17 Finally, the State argues that the District Court applied the proper test to determine if the new evidence entitled Crosby to postconviction relief or, alternatively, that the conclusion at which the District Court arrived did not prejudice Crosby regardless of the test applied. The District Court’s conclusion of law stated that “[t]he district court is required to grant a new trial only when the trial judge is satisfied the recantation is true.” According to the order, Crosby “failed to demonstrate that the recant[ing] testimony of Shawnetta Crosby [wa]s true.”
¶18 In Perry, 232 Mont. at 466, 758 P.2d at 275, we adopted the Kansas Supreme Court’s standard for recanting testimony, and stated that the “trial judge is required to grant a new trial only when he [or she] is satisfied the recantation of the witness is true.” However, cases decided subsequent to Perry applied a different standard to evaluate new testimony, leading to inconsistencies in our jurisprudence. For example, in 2001 we stated that “motions for a new trial based on newly discovered evidence must establish that such evidence is so material that it would probably produce a different result upon a different trial.” State v. Allen, 2001 MT 17, ¶ 8, 304 Mont. 129, ¶ 8, 18 P.3d 1006, ¶ 8. Later that same year, however, we applied a multifactored test, and required that all six factors be met before new evidence entitled a defendant to a new trial. Abe, ¶ 10. Ultimately, we recognized and resolved these discrepancies in Clark, where we explicitly overruled the statement in Perry that a “trial judge is required to grant a new trial only when he is satisfied the recantation of the witness is true.” Clark, ¶ 32. We reasoned that the standard in Perry had “inappropriately place[d] the judge in the role of fact-finder, inevitably, in some cases, in the key matter of the guilt or innocence of the accused.” Clark, ¶ 32.
¶19 We set forth the following test in Clark:
To prevail on a motion for a new trial grounded on newly discovered evidence, the defendant must satisfy a five-part test:
(1) The evidence must have been discovered since the defendant's trial;
(2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.
Clark, ¶ 34 (footnotes omitted).
¶20 We acknowledge that in Clark, we addressed a motion for a new trial, while the present case involves Crosby’s petition for postconviction relief. Nonetheless, we deem it appropriate to apply the same “newly discovered evidence” test in both situations. See Abe at ¶¶ 1, 10 (applying the factors to be considered when a district court evaluates a motion for a new trial based upon newly discovered evidence, to a motion for postconviction relief).
¶21 In light of the test we established in Clark, we conclude that the District Court erred when it said the court should grant a new trial only “when the trial judge is satisfied the recantation is true,” and in concluding that the recanting testimony of Shawnetta was untrue. In doing so, the court improperly placed itself in the role of fact-finder in contravention of our holding in Clark. Instead, the court should consider all five of the Clark factors, including, importantly, whether a new trial would have the reasonable probability of resulting in a different outcome. Under this test, the court does not pass on the ultimate truthfulness of the recanting testimony; rather, provided the five Clark factors are satisfied, the court leaves this determination to the fact-finder on retrial.
¶22 Justice Warner’s dissent states that the District Court “did consider the essential Clark factors in making its decision whether a new trial was necessary.” (Dissent, ¶ 1). A review of the court’s order, however, demonstrates that the court did not use the Clark factors and, in fact, engaged in the very analysis Clark forbids. The court’s order states:
The Court concludes that the recanted testimony of Shawnetta is untrue. From the foregoing findings of fact and conclusions of law, the Court makes the following order:
ORDER
The Petitioner, Daniel B. Crosby, having failed to demonstrate that the recanted testimony of Shawnetta Crosby is true,
IT IS HEREBY ORDERED that Daniel B. Crosby’s petition for post-conviction relief is DENIED.
The District Court thus violated Clark when it first determined the ultimate veracity of the recanting testimony, and then used that determination as the sole basis to deny postconviction relief.
¶23 The Dissent does however bring to light some subtle yet important distinctions underlying the Clark test-namely, the difference between the district court properly assessing the “weight and credibility” of the recanting testimony, which Clark commands, versus the district court determining the ultimate “veracity” of the recanting testimony, which Clark prohibits. A district court’s assessment of “weight and credibility maybe made absent an ultimate determination of whether the recanting witness is telling the truth or not, while a district court’s determination as to the witnesses’ “veracity is just that-a definitive determination that the recanting testimony is either the truth or a lie. More importantly, the “weight and credibility of the recanting witness is not the dispositive factor in assessing whether the new evidence entitles the defendant to a new trial, as was the test in Perry. As the Dissent recognizes, the decision of what effect the recantation of the victim will have may be of “primary importance in making the determination whether the new trial would probably result in acquittal.” Although ofprimary importance, the effect of the recanting testimony is not dispositive.
¶24 Under proper application of the Clark test, a possible scenario might be one in which the district judge finds the recanting witness highly credible, but nonetheless denies a new trial under the Clark test in light of the strength of the testimony of five other prosecution witnesses presented at the original trial. Alternatively, a judge might find a witness not particularly credible, but nonetheless grant a new trial under Clark because there is a reasonable probability-given the paucity of other evidence adduced at the first trial-that a jury on retrial would acquit the defendant when presented with the new evidence. In sum, the distinctions set forth in Clark, and reaffirmed here, are both appropriate and crucial to ensuring that the reviewing judge does not intrude on the jury’s province as fact finder. See Clark, ¶ 32.
¶25 The court’s improper application of the law clearly prejudiced Crosby since the court denied Crosby’s petition for postconviction relief on the sole basis that it deemed Shawnetta’s recanting testimony untrue. We therefore reverse and remand for the District Court to apply the standards espoused in Clark in determining whether Crosby is entitled to postconviction relief and a new trial.
ISSUE TWO
¶26 Did the District Court abuse its discretion when it denied Crosby’s motion to strike a portion of Dr. Stratford’s testimony?
¶27 Crosby filed a motion in limine, asking the District Court to preclude the State’s expert witness, Dr. Stratford, from testifying. Crosby argued that the subject matter was not appropriate for an expert opinion and that allowing expert testimony regarding another witness’s credibility violated Montana case law. The court’s order permitted Dr. Stratford to testify, but granted Crosby’s motion to “preclude expert testimony from Dr. Stratford regarding the credibility of this particular victim.” Crosby asserts that the District Court violated the latter portion of its own order when it permitted Dr. Stratford to testify about Shawnetta’s credibility. Crosby further asserts that the District Court compounded its error when it denied his motion to strike Dr. Stratford’s testimony.
¶28 During Dr. Stratford’s testimony, counsel for the State inquired as follows: “we can’t comment specifically about whether her testimony here in court was true or not. But based on all of the materials that you looked at, do you have an opinion about whether it’s more likely than not her testimony at the trial was accurate as opposed to the recantation?” In response, Dr. Stratford opined that Shawnetta’s testimony “at trial was more accurate than subsequent.” Clearly, this testimony violated the letter of the court’s correct order in limine which precluded Dr. Stratford from testifying to Shawnetta’s credibility. At such time as the court on remand re-examines the existing record, we direct the court to disregard this facet of Dr. Stratford’s testimony.
¶29 Reversed and remanded for application of the Clark test to determine whether Crosby is entitled to postconviction relief.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, NELSON and MORRIS concur.
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JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 A citizens’ group challenges the decision of its local elected officials to amend various planning documents to facilitate the development of a large suburban shopping mall on land that formerly had been used for agricultural purposes. The citizens’ group, North 93 Neighbors, Inc. (Neighbors), appeals from an order of the Eleventh Judicial District, Flathead County, affirming the Flathead County Board of Commissioner’s (Board) decisions to amend the Flathead County Growth Policy (Growth Policy) and to amend portions of the Flathead County Zoning Regulations (Zoning Regulations). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
¶2 Neighbors present the following issues on appeal:
¶3 1. Whether the Board developed a factual record sufficient to overcome Neighbors’s claim that it abused its discretion by failing to support its decisions to amend the Growth Policy and the Zoning Regulations with independently adopted findings of fact.
¶4 2. Whether the Growth Policy documents suffer from fatal internal inconsistencies.
¶5 3. Whether the Wolford Amendment conflicts with the Growth Policy.
¶6 4. Whether the Zoning Amendment constitutes illegal spot zoning.
FACTUAL AND PROCEDURAL HISTORY
¶7 This case involves the long, convoluted, and sometimes fractious history of planning and zoning in Flathead County. The Board and the Kalispell City Council created the Kalispell City-County Planning Board in 1965. Flathead County and the cities of Kalispell, Whitefish, and Columbia Falls established the Flathead Regional Development Office (FRDO) in 1971 to provide planning staff and administrative services for Flathead County and the three cities. The Board and the Kalispell City Council adopted the Kalispell City-County Master Plan (City-County Plan) in 1986.
¶8 The City-County Plan includes a master plan map and goals in twelve specific areas, including growth management, environment, economy, land use, and agriculture, along with specific objectives for each of these goals. The Board also adopted the Flathead County Master Plan (County Plan) in 1987 to cover those areas not otherwise covered by the City-County Plan. The County Plan discusses five elements: agriculture, land use, transportation, public facilities, and parks and open space.
¶9 Growth pressure in Flathead County soon spelled the end of county-wide and cooperative planning efforts. For our purposes, the first chink in county-wide planning came when the Board adopted the Stillwater Neighborhood Plan (Stillwater Plan) as an amendment to both the County Plan and the City-County Plan in 1990. The Board then revised the Stillwater Plan in 1992 to include an additional 40 acres for a total plan area of 340 acres. The Stillwater Plan provides for the construction of a golf course, hotel and conference center, commercial development, and residential single-family and townhouse development. The Board zoned the property as resort commercial, residential apartment, and suburban agriculture consistent with the Stillwater Plan. The Stillwater Plan never materialized, but the planning and zoning amendments remained in effect.
¶10 Flathead County withdrew from the FRDO and the 1971 planning agreement with the City of Kalispell in 2001. The Flathead County Planning and Zoning Office (Planning Office) now provides planning and zoning administrative staff and services for Flathead County. The Board extended the jurisdiction of the Flathead County Planning Board (Planning Board) to include that portion of the county outside of the City of Kalispell that previously had been included in the jurisdictional area of the Kalispell City-County Planning Board. The Board created a new Growth Policy in August of 2003 by combining the County Plan with those portions of the City-County Plan that covered lands outside the City of Kalispell.
¶11 Wolford Development Montana, LLC (Wolford) entered this Balkanized planning process when it submitted a request to the Planning Office. Wolford sought to amend the Growth Policy by revising and expanding the Stillwater Plan in order to accommodate the proposed Glacier Mall (Mall). Wolford’s proposal (Wolford Amendment) sought to increase the size of the Stillwater Plan from 340 acres to 481 acres to accommodate a commercial, office and residential development. The Wolford Amendment proposed 271 acres for commercial, 64 acres for mixed use, 141 acres of suburban agriculture, and five acres for construction of a road. Wolford’s application indicated that it proposed to set the agricultural land aside for the possible development of an on-site wastewater treatment and disposal system.
¶12 The Planning Office reviewed Wolford’s application and submitted a report to the Planning Board and the Board. The Planning Office concluded that the Wolford Amendment complied with the Growth Policy. The Planning Board held a public hearing on September 10, 2003, to consider the Wolford Amendment. The PlanningBoard adopted the Planning Office’s report as findings of fact and recommended that the Board approve the amendment.
¶13 The Board then passed a resolution of intent to consider the Wolford Amendment on September 29, 2003. The Board gave notice that it would take written public comment on the Wolford Amendment before October 31, 2003. More than four thousand members of the public submitted public comment on the proposal, with over 57 percent opposing the Wolford Amendment. The Board held a public meeting on November 5,2003, wherein it voted to approve the Wolford Amendment despite the public opposition to the proposal. The Board passed a resolution adopting the Wolford Amendment to the Growth Policy that same day. The Board did not prepare or adopt any independent findings to support its decision and the Board did not analyze or discuss any of the issues raised by the public comments in its decision.
¶14 Wolford submitted an application to the Planning Office to rezone the now 481 acres within the Stillwater Plan boundaries on August 25, 2003, in anticipation of the Board’s decision to amend the Growth Policy. The Planning Office issued a report for the zoning change, noting that approval of the zoning change depended on approval of the amendment to the Growth Policy. The Planning Office’s report further noted that the proposed development would have a significant impact on traffic and “should be connected to public water and sewer as soon as practical.” The Planning Board held a public meeting on the zoning change on November 13, 2003. Eight people spoke in favor and four people spoke in opposition to the zoning change (Zoning Amendment). The Planning Board voted to support the proposed Zoning Amendment and recommended its passage to the Board that same day.
¶15 The Board held a public meeting on December 23,2003, to consider the Zoning Amendment. Thirty members of the public spoke at the meeting in addition to Wolford’s representatives. Fourteen people spoke in favor and 16 spoke in opposition to the Zoning Amendment, including three of Neighbors’s board members. The Board unanimously voted to approve the Zoning Amendment immediately following the close of the public comment period. The Board again did not issue any independent findings of fact to support its decision, but the Board did state in its decision that it considered issues raised through the public comment process. The Board granted final approval of the Zoning Amendment on February 4, 2004.
¶16 Neighbors brought this action in the Eleventh Judicial District, Flathead County, challenging the Board’s decisions to amend the Growth Policy and Zoning Regulations. Wolford intervened. The parties submitted cross-motions for summary judgment. The District Court denied Neighbors’s motion for summary judgment and granted the Board’s and Wolford’s motions. This appeal followed.
STANDARD OF REVIEW
¶17 We review a district court’s grant of summary judgment de novo, applying the same evaluation under Rule 56, M.R.Civ.P., as the district court. Richards v. Knuchel, 2005 MT 133, ¶ 12, 327 Mont. 249, ¶ 12, 115 P.3d 189, ¶ 12. We review a district court’s conclusions of law to determine if they are correct. Richards, ¶ 12.
¶18 Amending a growth policy or a zoning designation constitutes a legislative act. Section 7-1-104, MCA. Courts review challenges to a governing body’s decision for an abuse of discretion. Schanz v. City of Billings (1979), 182 Mont. 328, 335, 597 P.2d 67, 71.
DISCUSSION
¶19 1. Whether the Board developed a factual record sufficient to overcome Neighbors’s claim that it abused its discretion by failing to support its decisions to amend the Growth Policy and the Zoning Regulations with independently adopted findings of fact.
A. Growth Policy
¶20 Neighbors contend that the Board’s amendment of the Growth Policy without issuing independent findings of fact in support rendered its decision unlawful, an abuse of discretion, and arbitrary and capricious. They argue that the Planning Office’s report cannot serve as a substitute in light of the fact that the staff prepared its report before the Board received more than 4,400 public comments and thus the report did not, and could not, address any of the concerns raised by the public. Neighbors assert that the Growth Policy language, statutory public participation provisions, and case law, taken together, required the Board to issue independent findings of fact in support of its decision. ¶21 We first examine the Growth Policy. In counties where a planning board has been created, “the preeminent planning tool is the comprehensive jurisdiction-wide development plan, which is today known as a growth policy. A growth policy essentially surveys land use as it exists and makes recommendations for future planning.” Citizen Advocates v. City Council, 2006 MT 47, ¶ 20, 331 Mont. 269, ¶ 20, 130 P.3d 1259, ¶ 20 (internal citations and quotations omitted). Neighbors argue that the Board must substantially comply with the Growth Policy and that the Growth Policy requires the Board to issue independent findings of fact.
¶22 Section 76-1-605, MCA, provides that a governing body “must be guided by and give consideration to” its growth policy. We held in Little v. Board of County Com’rs, Etc. (1981), 193 Mont. 334, 353, 631 P.2d 1282, 1293, that local government units must substantially comply with comprehensive master plans. We noted that strict compliance would prove unworkable, but that requiring no compliance at all would defeat the whole idea of planning. Little, 193 Mont. at 353, 631 P.2d at 1293. Although Little involved the role of comprehensive master plans in zoning decisions, the principles set forth in Little regarding the role of master plans when making future planning decisions apply with equal force here. See Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 496, 943 P.2d 85, 91 (applying substantial compliance standard to local government unit’s adoption of local vicinity plans). The substantial compliance standard set forth in Little and affirmed in Ash Grove Cement incorporates the statutory standard in § 76-1-605, MCA, of being guided by and considering a growth policy.
¶23 We see no tension between these two standards and therefore agree with Neighbors that the Board must substantially comply with its Growth Policy. We struggle, however, with Neighbors’s claim that substantial compliance with the Growth Policy obligates the Board to issue independent findings of fact. Neighbors rely on the following language from the Growth Policy in arguing the Board’s lack of substantial compliance:
A Plan, to be effective, must be used. Each time the Plan is consulted, because of an issue, those policies that are relevant should be identified. A finding should then be made as to the conformance of the identified policies to the issue. Where polices are not complied with or cannot be met, a specific finding should be made stating whether this is a clear violation of the policy or whether site conditions or extenuating circumstances exist and justify the violating of the policy or policies. [Emphasis added.]
The question arises as to whether the Board substantially complied with the Growth Policy by identifying relevant issues and making findings regarding the conformance of the issues raised by the Wolford Amendment.
¶24 Neighbors further argue that the public participation provisions of the Growth Policy Act, §§ 76-1-602 through -604, MCA, contemplate that the Board consider issues identified through the public comment process. This consideration, argue Neighbors, includes having the Board incorporate issues identified through the public participation process, not otherwise addressed in the Planning Office report, into its findings of fact in support of its decision to amend the Growth Policy.
¶25 These public participation statutes outline the necessary procedures for adopting and revising growth policies. Section 76-1-604(3)(a), MCA, allows for governing bodies to revise a growth policy by following the same procedures for adoption of a growth policy. The procedures require that a planning board hold a public hearing on a proposed growth policy before the submission of a growth policy to the governing body. Section 76-1-602, MCA.
¶26 A planning board then considers the suggestions elicited at the public hearing and either recommends acceptance or rejection of the growth policy to the governing body. Section 76-1-603, MCA. The Planning Board held a public meeting on September 10, 2003, and heard 28 people speak in favor of the Wolford Amendment and 18 speak in opposition to the amendment. The Planning Board drafted a letter recommending approval to the Board, wherein it stated that it “discussed the proposal and considered the public testimony.” The Planning Board further stated that it had adopted the Planning Office’s report as findings of fact. The Planning Office prepared the report, however, before the Planning Board received any public comments on the Wolford Amendment.
¶27 The statutory scheme then requires the governing body to adopt a resolution of intention to adopt, adopt with revisions, or reject the proposed growth policy. Section 76-1-604(1), MCA. The Board adopted a resolution of intent to adopt the Wolford Amendment and then received over 4,400 comments from the public. The Board adopted a resolution to approve the amendment following the public comment period, wherein it stated that the Board had “considered the information presented to it since the adoption of [the] resolution of intent.” Contrary to the Board’s resolution to approve the Zoning Amendment, discussed below, this resolution did not expressly mention the public comments. Nothing in the record indicates what issues, aside from a request from the public to put the Wolford Amendment to a public vote, were raised by the public participation process. Commissioner Hall testified that he personally reviewed the comments, but that he could not speak for his fellow Commissioners. Nothing in the record indicates that the other members of the Board considered the public comments.
¶28 Neighbors analogize the Board’s role in this process to that of an agency decision-maker in the administrative process under the Montana Administrative Procedures Act (MAPA). Neighbors cite to Stewart v. Region II Child and Fam. Serv. (1990), 242 Mont. 88, 93, 788 P.2d 913, 916, for the proposition that the “rules of agency review rely on the principle that the agency, and not the district court, is the finder of fact.” According to Neighbors, a court should remand a case for appropriate findings “[i]f a factual question is essential to an agency’s decision, and the agency’s findings of fact are so insufficient that they cannot be clarified or are entirely absent....” Stewart, 242 Mont. at 93, 788 P.2d at 916. Section 2-4-102(b) of MAPA admittedly excludes units of local government, such as the Board, from the requirements of MAPA, nevertheless Neighbors’s analogy proves apt to a degree.
¶29 Neighbors argue that the Board effectively preempted judicial review through a process by which it “left no tracks.” Neighbors contend that a reviewing court is left with the problem of evaluating the reasonableness of the Board’s decision that boils down to the Board’s claim that “it is okay because we said it is okay.” We have faced this obstacle in the context of zoning changes approved by elected city councils. First in Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551, we reversed a zoning amendment based upon the city council’s failure to address the statutory requirements for zoning amendments through the development of a factual record that could be reviewed by a court for an abuse of discretion. Later in Schanz, 182 Mont. 328, 597 P.2d 67, we determined that the information relied upon by the city council in approving the zoning amendment was “so lacking in fact and foundation” as to render the city council’s decision clearly unreasonable and an abuse of discretion. We remanded to the city council for consideration of the statutory criteria. Schanz, 182 Mont. at 336, 597 P.2d at 71.
¶30 Lowe and Schanz involve zoning amendments rather than amendments to master plans or growth policies similar to the one at issue here. These same principles still apply. As a general principle of administrative law, the record developed by an agency, here the Board, serves “to flesh out the pertinent facts upon which a decision is based in order to facilitate judicial review.” Annex Books, Inc. v. City of Indianapolis, 333 F. Supp. 2d 773, 782 (S.D. Ind. 2004). This requirement helps prevent “judicial intrusion into matters committed to administrative discretion by the legislature.” Annex Books, 333 F. Supp. 2d at 782. The absence in the record of facts relied upon by the Board in making its decision to approve the amendment to the Growth Policy would place the Court in the untenable position of having to substitute its own judgment for the Board’s judgment. See Burgess v. Gallatin County Com’n (1985), 215 Mont. 503, 507, 698 P.2d 862, 865. ¶31 The Board generally complied here with any such fact-finding requirements. The Planning Office reviewed Wolford’s application and analyzed the Wolford Amendment. The Planning Office’s report identified the relevant policies implicated by the Wolford Amendment and described its findings. For example, the Growth Policy lists Transportation as one of its major goal and policy elements. The report noted that the Wolford Amendment’s proposal to extend Rose Crossing from Whitefish Stage Road to Highway 93 at Wolford’s expense provides a positive transportation improvement for the County and helps remediate the Growth Policy’s concern regarding a lack of suitable east-west traffic movement.
¶32 Further, one of the policies states that “[ajdditional commercial development in the Planning Jurisdiction along Highway ... 93 ... should be discouraged.” The Planning Office seemingly justified deviation from this policy by concluding that it “is far better to locate potential projects of the scale contemplated by this change within a jurisdiction that is planned, has development standards, and is virtually adjacent to the largest existing city in Flathead County and adjacent to similar uses such as the Mountain View Plaza and the Spring Prairie Center.” The Planning Office’s report concluded that the “proposed amendment is consistent with the intent of the existing Growth Policy Plan policies and goals.”
¶33 The Planning Board then adopted the Planning Office’s report as findings of fact and passed a resolution recommending that the Board adopt the Wolford Amendment. The Board did not explicitly adopt the report as findings of fact. The Planning Office’s report did identify the policies relevant to the Wolford Amendment. The report further analyzed the compliance, or lack of compliance, of the Wolford Amendment with the relevant policies. As discussed above, however, the Planning Office prepared the report before the Board opened the proposal to public comment. The Board received more than 4,400 comments from the public regarding the Wolford Amendment. The Board closed the public comment period on October 31, 2003, and amended the Growth Policy just five days later on November 5, 2003. ¶34 Nothing can be found in the record that discloses what issues, aside from calls from the public to put the Wolford Amendment to a public vote, were raised through the public participation process. As the Dissent notes, the Board expressed appreciation for the public comments and thanked its clerk for preparing a tally of the comments. Dissent, ¶ 76. Commissioner Howard Gipe referenced a newspaper article that reported various organizations and individuals supported the change, and estimated that the breakdown for and against the Wolford Amendment was “about 50-50.” The Board then denied the public’s request to vote on the Wolford Amendment. The Board adopted the amendment immediately thereafter. Aside from these comments and the Board’s vague reference to having “considered the information presented to it since the adoption of [the] resolution of intent” nothing in the record demonstrates that the Board, the Planning Board, or the Planning Office ever considered any issues, other than denying the public the opportunity to vote on the Wolford Amendment, raised through the more than 4,400 written public comments.
¶35 The Board failed to address the public comments in its decision-making and thereby, failed “to flesh out the pertinent facts upon which [its] decision [was] based in order to facilitate judicial review.” Annex Books, 333 F. Supp. 2d at 782. Accordingly, we cannot know whether the public raised novel issues not addressed by the Planning Office’s report and whether the Board appropriately responded to those issues. The public participation statutes contemplate more than merely eliciting public comment. Section 76-1-603, MCA. Further, the Board must equip reviewing courts with a record of the facts it relied upon in making its decision to avoid judicial intrusion into matters committed to the Board’s discretion. Annex Books, 333 F. Supp. 2d at 782.
¶36 We conclude that the Board’s reliance upon the Planning Office’s report was justified and appropriate to an extent. The Board’s sole reliance on the report, prepared before over 4,400 members of the public voiced their concerns, however, renders its decision to amend the Growth Policy unreasonable and an abuse of discretion. See Schanz, 182 Mont. at 336, 597 P.2d at 70. The Board has an obligation to consider the public comments and incorporate those comments into its decision-making process.
¶37 The District Court granted summary judgment based on the fact that the Board did not abuse its discretion in amending the Growth Policy. The District Court failed to account, however, for the issue of whether the Board considered matters raised through the 4,400 public comments. Absent any indication in the record that the Board considered these public comments, the Board cannot demonstrate that it satisfied its duty to flesh out the pertinent facts upon which it relied in approving the Wolford Amendment.
¶38 The District Court must evaluate whether the Board satisfied this obligation by requiring the Board to demonstrate what issues, if any, were raised through the public comment process that were not addressed by the Planning Office’s report. The Board must further demonstrate to the District Court that it evaluated such issues with the requirements of the Growth Policy. As the parties initially filed cross-motions for summary judgment, the District Court on remand likewise must allow Neighbors to present evidence to refute the Board’s assertions. We reverse and remand to the District Court for this limited purpose. Schanz, 182 Mont. at 336, 597 P.2d at 71. If the District Court determines that the Board failed to satisfy its obligation, or if the record proves insufficient to determine whether the Board complied, it should send the case to the Board for development of the factual record that it relied upon in making its decision to amend the Growth Policy.
B. Zoning Regulations
¶39 Neighbors next contend that the zoning statutes and the Zoning Regulations require the Board to issue findings of fact in support of its decision to amend the zoning ordinance. Neighbors assert that the Board’s failure to issue findings of fact entitles them to summary judgment voiding and setting aside the Board’s zoning decision.
¶40 Section 76-2-205, MCA, provides the process for amending a zoning ordinance. A board of county commissioners must publish a notice of a public hearing on the proposed zoning regulation amendment and provide the public an opportunity to be heard at the hearing. Section 76-2-205(1) and (2), MCA. A board then must review the recommendation from the planning board and make any revisions or amendments it deems proper based on the public comments received. Section 76-2-205(3), MCA. A board of county commissioners may then pass a resolution of intent to adopt the amendment. Section 76-2-205(4). If a board passes a resolution of intent to adopt an amendment to the zoning regulations it must publish notice of the resolution, and provide for a 30-day protest period. Section 76-2-205(5), MCA. A board must pass a final resolution adopting the amendment unless 40 percent of the landowners within the zoning district protest the amendment within the 30-day protest period. Section 76-2-205(6), MCA.
¶41 Neighbors further assert that Flathead County’s own Zoning Regulations require the Board to issue independent findings of fact. Section 2.08.040 of the Zoning Regulations state that when “considering an application for amendment to the provisions of these regulations or the Zoning Districts, the Planning Board and the Board ... shall be guided by and adopt findings of fact based upon [the following 12 criteria].” The 12 criteria in § 2.08.040 of the Zoning Regulations mirror the criteria for considering a zoning amendment from § 76-2-203, MCA. ¶42 The Board must make zoning amendments in accordance with the 12 statutory and Zoning Regulation criteria. Section 76-2-203, MCA. Wolford’s application to amend the zoning regulations addressed all 12 of these criteria at length. The Planning Office also addressed the 12 statutory criteria and issued a report outlining the Zoning Amendment in the context of the criteria. The Planning Board discussed the amendment, voted to recommend approval, and adopted the Planning Office’s report as findings of fact.
¶43 The Board then held a public hearing on the proposed Zoning Amendment. The Board passed a resolution of intent to adopt the Zoning Amendment following the public hearing. The Board adopted a final resolution approving the Zoning Amendment at the conclusion of the required protest period, wherein it stated that it based its decision upon the recommendation of the Planning Board and public testimony. The resolution further stated that the Board made its decision in accordance with § 76-2-205, MCA. The Board did not expressly adopt the Planning Office’s report as findings of fact. The Board did state, however, that it adopted the Zoning Amendment based upon the Planning Board’s recommendation, and the Planning Board adopted the report as findings of fact. Further, the plain language of § 2.08.040 requires only that the Planning Board and the Board “be guided by and adopt findings of fact....” Nothing requires that the Board separately issue its own independent factual findings.
¶44 The applicable standard of review is whether the information upon which the Board based its decision “is so lacking in fact and foundation” that “it is clearly unreasonable and constitutes an abuse of discretion.” Schanz, 182 Mont. at 335-36, 597 P.2d at 71. The Board reviewed the Planning Board’s recommendation. The Planning Board discussed the Zoning Amendment, voted unanimously to recommend approval, and adopted the Planning Office’s report as findings of fact. The Board considered public comment, including a statement by Sharon DeMeester, President of Neighbors, wherein she reviewed the 12 statutory criteria, and made its decision based upon these considerations. The Board thus followed the proper statutory and regulatory procedure for adopting zoning amendments and had sufficient evidence before it to make an informed decision.
¶45 Neighbors finally argue that this Court’s decisions in Lowe and Schanz mandate reversal of the Board’s decision because of the Board’s failure to consider the 12 statutory criteria. Lowe and Schanz require governing bodies to consider the 12 statutory criteria from what is now § 76-2-203, MCA, before making changes to zoning regulations. Lowe, 165 Mont. at 40, 525 P.2d at 552; Schanz, 182 Mont. at 336, 597 P.2d at 71. The Planning Office’s report outlines each of the 12 statutory criteria in detail as they relate to the Wolford’s Amendment. The Planning Board adopted the report as findings of fact and recommended approval to the Board. The Board considered the Planning Board’s recommendation. The Board also heard public comment on the 12 statutory criteria, and, unlike the amendment to the Growth Policy, expressly considered those public comments before approving the Zoning Amendment. The Board therefore followed the requirement articulated in Lowe and Schanz before making changes to the Zoning Regulations. We agree with the District Comb that the Board did all that the law required.
¶46 2. Whether the Growth Policy documents suffer from fatal internal inconsistencies.
¶47 Neighbors argue that the Growth Policy suffers from a fatal flaw because it contains internal inconsistencies. Neighbors allege that the Board failed to reconcile vast discrepancies when it combined the City-County Plan of 1986 with the County Plan of 1987 to create the new Growth Policy in August of2003. Specifically, Neighbors point to three such inconsistencies.
¶48 Neighbors first argue that the Board premised its approval of the Stillwater Plan upon annexation of the area into the city of Kalispell and the area obtaining city services. Neither contingency has been realized. The City-County Plan likewise contains objectives of adopting a municipal annexation program. The County Master Plan, on the other hand, has no stated requirement that developments be annexed into the City. Second, Neighbors allege that the City-County Plan stresses joint administration between the City and County while the County Plan lacks any goals of joint administration. Finally, Neighbors point to the fact that the City-County Plan contains a table projecting future land use needs for the plan area in a number of categories, but the County Plan contains no such projection.
¶49 Neighbors rely on BCPOA v. Planning & Zoning Com’n (1995), 270 Mont. 160, 175, 890 P.2d 1268, 1277, for the proposition that “in order to effectively plan for the development of a planning and zoning district, the planning documents which comprise the development pattern must be internally consistent as well as consistent with companion planning documents.” A clear conflict existed in BCPOA. The general plan and the zoning map specifically excluded single family housing in the base area. The zoning ordinance and base area plan, by contrast, contained a provision for high density subdivision in the same area. BCPOA, 270 Mont. at 167, 890 P.2d at 1272. The inconsistencies within the planning documents made it impossible to determine the appropriate population densities for the area. BCPOA, 270 Mont. at 173, 890 P.2d at 1276.
¶50 The alleged inconsistencies within the Growth Policy do not rise to the level of the inconsistencies in BCPOA. The annexation objective in the City-County Plan on which Neighbors rely provides for the adoption of “a municipal annexation program which coordinates with the Extension of Services Plan to aggressively deal with fringe developments setting the stage for immediate or future annexation so as to preserve the tax base of the city and eliminate future barriers to orderly growth.” Neighbors assert that the Board premised its approval of the Stillwater Plan upon annexation into the City, but that the County Plan contains no objectives for annexation. Wolford counters that the Board considered annexation to be a future possibility, not an immediate requirement.
¶51 The Board amended both the City-County Plan and the County Plan by revising the Stillwater Plan in 1992. The 1992 Stillwater Plan Amendment contains an objective to “provide for public sewer services.” As part of the strategy to provide for public sewer services, the 1992 Stillwater Plan Amendment calls for development of an onsite engineered sewer system for the first 200 users. Only when use exceeds 200 users does the 1992 Stillwater Plan Amendment state that connection to the city of Kalispell sewage collection would occur and that the developer would seek annexation. We therefore agree with Wolford that the Board considered annexation to be a future possibility rather than an immediate requirement in approving the Stillwater Amendment. The Wolford Amendment to the Stillwater Plan also contains no requirement of annexation or hook up to city sewer services. Neighbors cannot establish that the alleged inconsistencies regarding annexation rise to the level of contradiction apparent in BCPOA, and thereby impede the planning process.
¶52 Neighbors next argue that the City-County Plan requires joint administration while the County Plan contains no such requirement. The City-County Plan contains a “goal” for administration wherein the city and county “jointly cooperate in promoting, guiding, and directing the planning jurisdiction’s growth and development.” The City-County Plan defines goals as “very long range statements about the future of a community, they give direction. They are, in essence, what the people of the Kalispell Planning Jurisdiction are striving for in terms of neighborhood and community environment, growth, community services, etc.” The County Plan contains a similar goal for joint cooperation, wherein “[i]ntergovernmental cooperation between the three cities of Whitefish, Kalispell, and Columbia Falls and Flathead County should be encouraged ....” The Court must pause to scratch its collective heads and ponder whether the City-County Plan’s “goal” for joint administration conflicts with the County Plan’s goal of “encouraging” intergovernmental cooperation. We are hard pressed to conclude that the City-County Plan and County Plan conflict on the topic of joint administration to such a degree as to impede the planning process.
¶53 Neighbors finally argue that the City-County Plan contains a table projecting future land use needs, while the County Plan does not. Once again, the City-County Plan’s projections represent projections of future needs rather than binding criteria. Neighbors do not explain how this alleged inconsistency impedes the planning process. Both the City-County Plan and County Plan discuss similar goals in the areas of residential, commercial, and industrial development. We fail to see how the County Plan’s omission of a future land needs projection impedes the planning process in light of the County Plan’s discussion of goals in these same areas of residential, commercial, and industrial development. These goals largely mirror in relevant part the future land needs projections.
¶54 We recognize the City-County Plan and the County Plan are not identical. They do not suffer from internal inconsistencies, however, to such a degree that render them inherently unreliable. BCPOA, 270 Mont. at 173, 890 P.2d at 1276. The lack of significant inconsistencies arises from the intentionally vague and sometimes open-ended language employed in the two documents. The local elected officials in Flathead County have chosen to adopt planning documents that contain these ambiguities. BCPOA requires that the two plans be sufficiently consistent to allow public officials to follow them. BCPOA, 270 Mont. at 174, 890 P.2d at 1276. The Growth Policy, comprising the City-County Plan and the County Plan and all amendments thereto, despite the presence of much vague and open-ended language, provides sufficient consistency for the Board to follow. The Board therefore did not exceed its authority or jurisdiction in amending the Growth Policy.
¶55 3. Whether the Wolford Amendment is consistent with the Flathead Growth Policy,
¶56 Neighbors next argue that the Wolford Amendment to the Growth Policy does not substantially comply with the Growth Policy, and therefore must be annulled and set aside. Section 76-1-601(4)(a), MCA, provides that growth policies may contain neighborhood plans. If a growth policy contains a neighborhood plan, such as the Stillwater Neighborhood Plan, such a plan must be consistent with the growth policy. Section 76-1-601(4)(a), MCA. We therefore note that the proper standard is not whether the Wolford Amendment substantially complies with the Growth Policy, as the parties have framed the issue, but whether the Wolford Amendment proves consistent with the Growth Policy.
¶57 Neighbors contend that the City-County Plan slated the area of the proposed Mall for annexation to the City. Neighbors further contend that the Board “has gone to great lengths to ensure that this massive development... is not annexed into the City and does not get connected to city water and sewer services” without providing any supporting authority for such a statement. As we already have determined that the Board did not premise its approval of the Stillwater Plan upon annexation into the city, and that the Wolford Amendment neither required nor precluded annexation into the city, we focus on the two other inconsistencies alleged by Neighbors.
¶58 Neighbors argue that the Wolford Amendment conflicts with the Growth Policy’s goals pertaining to commercial development in the Kalispell area. Neighbors rely, in part, on a Planning Office report from 2001 for a previous application submitted by Wolford to locate the mall in the Evergreen area. Neighbors further rely on the 1987 County Plan’s statement that “additional development in the planning jurisdiction along Highway ... 93 should be discouraged.” Neighbors finally argue that the development of agricultural land at the proposed Mall site conflicts with the Growth Policy.
¶59 The 2001 Planning Office report noted that “the development will cannibalize downtown Kalispell commercial operations, force vacancies in the existing business and redirect growth into the unincorporated portions of Flathead County.” The Planning Office prepared this report in 2001 for location in a different part of Flathead County. More importantly, factors on the ground have changed significantly since 2001. The area has seen significant population growth. The proposed Mall now comports with the prevailing uses in the area. Thirty-six businesses surround the proposed Mall in all directions, including large box retailers such as Target, Home Depot, TJ Maxx, Lowes, Ross, Borders Books, and Costco. The proposed Mall admittedly may not serve to preserve downtown Kalispell retail operations, a fear expressed by the 2001 report. It will at least be located, however, among other “cannibalizing” sprawl developments that the Board previously had determined to be appropriate for the arear
¶60 We find similarly unpersuasive Neighbors’s next contention that the Wolford Amendment conflicts with the Growth Policy because the County Plan discourages additional developments along Highway 93. The County Plan encourages development “toward existing commercial areas either as expansion or infill.” The Planning Office noted, however, that the County planned that area in 1992 (via the 1992 Amendment to the Stillwater Plan) for “future growth because of significant population growth and development in the Kalispell area....” Flathead County thus amended the County Plan nearly fifteen years ago through enactment of the Stillwater Plan to create a new policy objective-one that allows for commercial development in the location of the proposed Mall. The Planning Office report noted that the surrounding areas were slated for large retailers and box stores, projects that have since been completed. The proposed Mall will be sited in an “existing commercial area.”
¶61 Neighbors’s final argument, that the development of agricultural land at the proposed site conflicts with the Growth Policy, fails to recognize that the Stillwater Plan, and the zoning in effect before the Wolford Amendment, also allowed for significant commercial and residential development at the proposed Mall location. The Wolford Amendment and Zoning Amendment designate 141 acres north of the proposed Mall for suburban agricultural zoning, an increase of 31 acres over the 2002 version of the Stillwater Plan.
¶62 We therefore conclude that the Wolford Amendment is consistent with the Growth Policy. We farther conclude that the Board complied with this Court’s directive in Little. Little dealt with zoning amendments that conflicted with the master plan. We noted that we were “aware that changes in the master plan may well be dictated by changed circumstances occurring after the adoption of the plan. If this is so, the correct procedure is to amend the master plan rather than to erode the master plan by simply refusing to adhere to its guidelines.” Little, 193 Mont. at 354, 631 P.2d at 1293. Here, the Board amended the Growth Policy directly, rather than attempting to erode it through zoning amendments. We remain mindful of the concerns regarding the pitfalls of piecemeal amendments to comprehensive planning documents expressed by Justice Leaphart and Justice Nelson in Ash Grove Cement, 283 Mont. at 500-01, 943 P.2d at 94-95 (Leaphart, J., and Nelson, J., specially concurring). Nevertheless, the Board followed the procedure we established in Little in amending the Growth Policy and we have not abandoned the Little standard.
¶63 4. Whether the Zoning Amendment constitutes illegal spot zoning.
¶64 Wolford moved for summary judgment on whether the Zoning Amendment constituted illegal spot zoning. Neighbors failed to present any evidence to the District Court to support its position. The District Court addressed the claim despite this omission. Neighbors now argue on appeal that the Board’s decision to amend the Zoning Regulations constituted illegal spot zoning.
¶65 We consider three factors when determining whether a zoning amendment constitutes spot zoning. Little, 193 Mont. at 346, 631 P.2d at 1289. We first evaluate whether the requested use differs significantly from the prevailing use in the area. Little, 193 Mont. at 346, 631 P.2d at 1289. We next determine whether the area proposed for rezoning is small, although not solely in physical size. Little, 193 Mont. at 346, 631 P.2d at 1289. Finally, we evaluate whether the requested change resembles special legislation designed to benefit only one or a few landowners at the expense of the surrounding landowners or general public. Little, 193 Mont. at 346, 631 P.2d at 1289.
¶66 Wolford presented evidence to the District Court demonstrating that the proposed land uses in the Zoning Amendment were not significantly different from prevailing uses in the area. Neighbors did not refute Wolford’s assertions regarding the prevailing uses surrounding the proposed Mall. Thirty-six businesses surround the proposed Mall in all directions. One hundred and ten acres of commercially zoned property lies to the east of the area encompassing the proposed Mall. This area includes the Spring Prairie Center and retail establishments such as Lowes and Costco. Sixty acres make up the Mountain View Plaza Development to the south of the proposed Mall. The Mountain View Plaza includes Home Depot, Target, Ross, TJ Maxx and Borders. The 40-acre Semi-Tool complex also lies to the south and within 250 feet of the proposed Mall. The Semi-Tool area is zoned County 1-1 and allows for the same commercial uses that the Zoning Amendment allows, plus industrial uses.
¶67 The Zoning Amendment allows for zoning and uses consistent with the neighboring properties. The County zoned the Stillwater Plan area for residential, commercial, and agricultural uses. The Stillwater Plan allowed for 290 acres for High Density Residential and 50 acres for Resort Commercial. Extending a preexisting zone classification to include a larger area does not constitute spot zoning. State ex rel. Gutkoski v. Langhor (1972), 160 Mont. 351, 353, 502 P.2d 1144, 1146. Additionally, we may consider the current zoning when evaluating whether the requested use differs significantly from the prevailing use in the area. Greater Yellowstone Coal. v. Bd. Of Com’rs, 2001 MT 99, ¶ 23, 305 Mont. 232, ¶ 23, 25 P.3d 168, ¶ 23. Because the areas surrounding the Wolford Amendment are largely commercial, and because the existing zoning allowed for commercial development, we conclude that the Zoning Amendment does not allow for uses that differ significantly from the prevailing uses in the area.
¶68 We analyze the second and third elements of the Little test together. Boland v. City of Great Falls (1996), 275 Mont. 128, 134, 910 P.2d 890, 894. The number of separate landowners affected by the rezoning directly relates to whether the zoning constitutes special legislation designed to benefit only one person. Boland, 275 Mont. at 134, 910 P.2d at 894. Wolford is the sole owner of the parcel. Zone changes for property owned by one person, however, do not automatically equate to spot zoning. Greater Yellowstone Coal., ¶ 27. We also consider whether the zoning change occurred at the expense of surrounding landowners or the general public and whether the requested use accords with the comprehensive plan. Greater Yellowstone Coal., ¶ 21.
¶69 In Greater Yellowstone Coal, we evaluated whether the Gallatin County Commissioner’s decision to amend the zoning regulations to allow for a large planned unit development project constituted spot zoning. Greater Yellowstone Coal., ¶¶ 20-37. We concluded that the zoning request was in the nature of special legislation designed to benefit one or a few landowners at the expense of the surrounding landowners or general public. Greater Yellowstone Coal., ¶ 32. We relied in part on the publicly owned nature of the surrounding land. The public owned 59 percent of the surrounding area, including some of the most significant wildlife habitat in the country. Greater Yellowstone Coal., ¶ 32. Similarly, in Little we concluded that the Flathead County Commissioner’s decision to rezone land from medium-density residential to allow for a regional mall was done at the expense of the surrounding landowners. Little, 193 Mont. at 348, 631 P.2d at 1290. ¶70 Unlike Greater Yellowstone Coal, and Little, similar uses surround the location of the proposed Mall. As noted above, the surrounding properties are largely commercial, including large box retailers. We already have determined that the Zoning Amendment’s requested use comports with the Growth Policy. We therefore conclude that despite Wolford’s sole ownership of the parcel, the Board did not enact the Zoning Amendment at the expense of surrounding landowners or the general public. Greater Yellowstone Coal., ¶ 21.
CONCLUSION
¶71 We affirm the District Court’s determination that the Board adequately supported its decision to amend the Zoning Regulations with findings of fact. We affirm the District Court’s ruling that the Growth Policy documents do not suffer from fatal internal inconsistencies and that the Wolford Amendment is consistent with the Growth Policy. We further affirm the District Court’ determination that the Zoning Amendment does not constitute illegal spot zoning. We reverse and remand, however, for the District Court to evaluate whether the extensive public comments raised any new issues not addressed by the Planning Office’s report and to determine whether the Board considered any such issues.
JUSTICES LEAPHART, COTTER and NELSON concur.
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CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Daniel Kuykendall (Kuykendall) appeals from the judgment entered by the Twenty-First Judicial District Court, Ravalli County, on his convictions and sentences for felony criminal endangerment and misdemeanor resisting arrest. We affirm.
¶2 Kuykendall raises the following issues on appeal:
¶3 1. Did the District Court err when it imposed restitution without considering Kuykendall’s ability to pay restitution and without setting a payment schedule?
¶4 2. Did the District Court’s imposition of restitution violate the excessive fines clause of Article II, Section 22 of the Montana Constitution?
BACKGROUND
¶5 In January of 2005, the State of Montana (State) charged Kuykendall by information with assault with a weapon, a felony; assault on a peace officer, a felony; and resisting arrest, a misdemeanor. The charges stemmed from an altercation between Kuykendall and Richard Kordsmeier (Kordsmeier), a deputy marshal for the town of Darby, Montana. The State also filed notice of its intention to have the District Court designate Kuykendall a persistent felony offender.
¶6 Kuykendall and the State subsequently entered into a plea agreement whereby the State agreed to amend the assault with a weapon charge to felony criminal endangerment, dismiss the assault on a peace officer charge and withdraw its request to have Kuykendall designated a persistent felony offender. The State also agreed to recommend a 10-year sentence for the criminal endangerment offense and a sentence equivalent to the time Kuykendall served in the county jail for the resisting arrest offense. In exchange, Kuykendall agreed to plead guilty to the amended criminal endangerment charge, as well as the resisting arrest charge, and to admit to probation violations relating to a separate conviction. Kuykendall also agreed to pay restitution resulting from a knee injury suffered by Kordsmeier during the altercation. In March of 2005, the State filed its amended information and Kuykendall appeared before the District Court to plead guilty to the charges as provided in the plea agreement. The District Court accepted the guilty pleas, ordered preparation of a presentence investigation report (PSI) and scheduled a sentencing hearing for the following month.
¶7 At the sentencing hearing, Kordsmeier testified to the pecuniary losses he suffered as a result of his knee injury. The State then recommended the District Court sentence Kuykendall in accordance with the plea agreement. The District Court agreed with the recommendation and sentenced Kuykendall to 10 years with the Montana Department of Corrections on the criminal endangerment offense. The 10-year sentence was suspended on conditions which included that Kuykendall pay restitution in the amount of $10,198.35. The court also sentenced him to 88 days in the Ravalli County Detention Center on the resisting arrest offense, with credit for 88 days of time served. The District Court entered judgment and Kuykendall appeals.
STANDARD OF REVIEW
¶8 We review a sentence in a criminal case for legality only, determining whether the sentence falls within the parameters set by statute. State v. Mingus, 2004 MT 24, ¶ 10, 319 Mont. 349, ¶ 10, 84 P.3d 658, ¶ 10. Where a sentence falls within statutory parameters, it is not illegal. Mingus, ¶ 10.
DISCUSSION
¶9 1. Did the District Court err when it imposed restitution without considering Kuykendall’s ability to pay restitution and without setting a payment schedule ?
¶10 Kuykendall contends that his sentence is illegal because the District Court failed to consider his financial resources and future ability to pay restitution, and did not set forth a restitution payment schedule when imposing the restitution obligation. Kuykendall cites to State v. Brown (1994), 263 Mont. 223, 867 P.2d 1098, State v. Rinkenbach, 2003 MT 348, 318 Mont. 499, 82 P.3d 8, and State v. Mikesell, 2004 MT 146, 321 Mont. 462, 91 P.3d 1273, in support of his argument that §§ 46-18-112, -242 and -244, MCA, require that the PSI contain documentation of a defendant’s financial status and the victim’s pecuniary loss, and require the sentencing court to consider a defendant’s financial resources and ability to pay when imposing a restitution obligation.
¶11 We observe that the three cases on which Kuykendall relies all interpreted the requirements of restitution statutes in effect prior to 2003. As the State correctly points out, however, the Montana Legislature amended the statutes relating to restitution in 2003, and the amendments became effective on October 1, 2003. See 2003 Mont. Laws Ch. 272, Sec. 10. Kuykendall committed the offenses in this case, pled guilty and was sentenced in 2005. Therefore, we conclude that the 2003 amendments apply to the imposition of restitution here.
¶12 “[A] sentencing court shall, as part of the sentence, require an offender to make full restitution to any victim who has sustained pecuniary loss, including a person suffering an economic loss.” Section 46-18-241(1), MCA (2003). Section 46-18-242(1), MCA (2003), provides as follows:
Whenever the court believes that a victim may have sustained a pecuniary loss or whenever the prosecuting attorney requests, the court shall order the probation officer, restitution officer, or other designated person to include in the presentence investigation and report:
(a) a list of the offender’s assets; and
(b) an affidavit that specifically describes the victim’s pecuniary loss and the replacement value in dollars of the loss, submitted by the victim.
As we recently observed in State v. Workman, 2005 MT 22, ¶ 15, 326 Mont. 1, ¶ 15, 107 P.3d 462, ¶15, although earlier versions of § 46-18-242, MCA, required sentencing courts to consider a defendant’s financial resources and future ability to pay when imposing restitution obligations, the 2003 version of the statute only requires that the PSI contain a list of the defendant’s assets and an affidavit submitted by the victim describing the pecuniary loss and replacement value of the loss.
¶13 In the present case, the PSI prepared for Kuykendall’s sentencing hearing stated that Kuykendall was unemployed and had no current income, no assets and no debt. The PSI also included a statement and documents from Kordsmeier detailing his losses resulting from the knee injury he suffered during the incident with Kuykendall. We conclude that the PSI contains adequate information to meet the requirements of § 46-18-242, MCA (2003).
¶14 With regard to Kuykendall’s contention that the condition of restitution in his sentence is illegal because the District Court failed to establish a payment schedule, he again fails to recognize the significance of the 2003 amendments. Section 46-18-244(1), MCA (2001), provided that the sentencing court “shall specify the total amount to be paid and the method and time of payment and may permit payment in installments.” Following the 2003 amendments, however, the provision reads “[t]he court shall specify the total amount of restitution that the offender shall pay.” Section 46-18-244(1), MCA (2003). Thus, a sentencing court no longer is required to set a restitution payment schedule. Here, the District Court specified, both orally at the hearing and in the written judgment, that Kuykendall was required to pay $10,198.35 in restitution to the victim, Kordsmeier. This satisfies the requirement of § 46-18-244(1), MCA (2003).
¶15 We hold that the District Court did not err when it imposed restitution without considering Kuykendall’s ability to pay restitution and without setting a payment schedule.
¶16 2. Did the District Court’s imposition of restitution violate the excessive fines clause of Article II, Section 22 of the Montana Constitution?
¶17 Article II, Section 22 of the Montana Constitution provides that “[ejxcessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.” Restitution imposed as part of a criminal sentence is a “fine” within the purview of Montana’s excessive fines clause. State v. Good, 2004 MT 296, ¶ 22, 323 Mont. 378, ¶ 22, 100 P.3d 644, ¶ 22. A restitution award violates the excessive fines clause if the award is grossly disproportional to the gravity of the offense for which a defendant has been convicted. Good, ¶ 23. However, where the amount of restitution imposed is directly related to the amount of the victim’s loss resulting from the defendant’s offense, proportionality already is built into the order. In other words, when the restitution award simply makes the victim whole, it does not violate the excessive fines clause. Good, ¶ 25.
¶18 Kuykendall contends that the amount of restitution ordered by the District Court is grossly disproportional to the gravity of the offense for which he was convicted because the amount exceeds the actual amount of Kordsmeier’s losses resulting from the offense and Kuykendall does not have the financial resources with which to pay the restitution. On this basis, Kuykendall argues that the District Court’s restitution order violates Montana’s constitutional prohibition against excessive fines.
¶19 Kordsmeier testified at the sentencing hearing regarding the nature and amount of his asserted pecuniary losses. He also provided the District Court with documentation supporting his claimed losses. Kuykendall briefly cross-examined Kordsmeier on certain points of his testimony, but did not present any witnesses refuting the amounts claimed by Kordsmeier and made no argument to the District Court that the amounts claimed were excessive or not supported by the evidence. On appeal, Kuykendall contends that the amount of restitution imposed by the District Court was erroneous because it exceeded the actual amount of Kordsmeier’s losses. However, his arguments in this regard are purely speculative and not based on any evidence of record. The District Court’s restitution award was based on the only evidence presented to it at the sentencing hearing-Kordsmeier’s testimony and supporting documentation. We conclude that the amount of restitution ordered is directly related to the amount of Kordsmeier’s loss resulting from Kuykendall’s offense and, consequently, is not “grossly disproportional.”
¶20 With regard to the “financial resources” portion of Kuykendall’s argument, we determined above that, pursuant to the restitution statutes applicable to Kuykendall’s sentencing, his financial status and future ability to pay are not factors in determining whether to impose a restitution obligation. Furthermore, as the District Court observed, although Kuykendall was unemployed at the time of sentencing, he was capable of working and earning income in the future with which to pay restitution. We conclude that Kuykendall’s current lack of financial resources does not make the restitution imposed here “grossly disproportional.”
¶21 We hold that the District Court’s imposition of restitution does not violate the excessive fines clause of Article II, Section 22 of the Montana Constitution.
¶22 Affirmed.
JUSTICES NELSON, COTTER, WARNER and RICE concur.
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] |
JUSTICE WHEAT
delivered the Opinion of the Court.
¶1 Daniel Bushnell (Dan) appeals the District Court’s order requiring him to designate his former spouse, Rachel Bushnell (Rachel), as the beneficiary of his Survivorship Annuity in his Survivor Benefit Plan. The following issue is presented for review:
¶2 Did the District Court err by requiring Dan to name Rachel as the beneficiary of his Survivor Annuity under Dan’s Survivorship Benefit Plan?
¶3 We reverse.
BACKGROUND
¶4 Dan and Rachel were married in October of 2000. Dan filed a Petition for Dissolution of Marriage on June 25, 2009. The parties entered into a Parenting Plan and a Dissolution Settlement Agreement (Agreement), which were filed and approved by the District Court. The relevant portion of that Agreement provided:
8(e) Rachel shall receive 50% of Dan’s Army National Guard retirement that was earned during the marriage. That shall be defined as any points or retirement earned between the date of the parties’ marriage (October 14, 2000) and December 31,2010. The parties intend to insure that ten years of Dan’s service occurred during ten of the years that the parties were married. A separate order will be created to eifectuate this paragraph.
(h) Each party shall retain ownership of any life insurance policies on his or her life.
The Agreement also contained a mutual release:
In consideration of the execution of this agreement, and the terms and conditions hereof, each party hereto releases and forever discharges the other party and his or her personal representatives and assigns from any and all rights, claims, demands, and obligations except as herein provided, and each party is forever barred from having or asserting any such right, claim, demand, or obligation at any time hereafter for any purpose. It is hereby agreed that the personal obligations of the parties shall be and remain their respective obligations, and each party shall pay and hold the other free and harmless from any obligations for bills or merchandise or services separately incurred by the parties hereto, subsequent to the date of this agreement or not addressed in this agreement.
¶5 Rachel filed a Motion for Order to Show Cause alleging that Dan violated the Agreement, and the District Court held a hearing on October 25,2012. At the hearing, Rachel argued that her entitlement to Dan’s federal retirement benefits included a right to his Survivorship Benefit Plan (SBP). That plan included a Survivorship Annuity which paid out to a named beneficiary in the event of Dan’s death. Dan argued that Rachel was not entitled to the Survivorship Annuity because it was not contemplated by the Agreement, and he had not yet elected the benefit or signed up for the annuity. Further, Dan argued that he may desire to name his future spouse as a beneficiary to the annuity. Rachel proposed that she would pay all premiums for the annuities so that she could receive a pay-out from the annuity should Dan die in combat.
¶6 The District Court granted Rachel’s motion and issued an order requiring that Rachel be named as the spouse beneficiary of Dan’s Survivor Benefit Plan. The order also noted that Rachel would reimburse Dan for his monthly payments of the premium on the annuity.
STANDARD OF REVIEW
¶7 We review a district court’s conclusions of law regarding a division of marital assets to determine whether they are correct. In re Caras, 2012 MT 25, ¶ 18, 364 Mont. 32, 270 P.3d 48. The construction and interpretation of a written contractual agreement is a question of law that we review for correctness. Cole v. Valley Ice Garden, L.L.C., 2005 MT 115, ¶ 24, 327 Mont. 99, 113 P.3d 275.
¶8 The parties dispute the applicable standard of review in this case. Rachel argues that the federal code establishes an abuse of discretion standard in cases involving a survivorship annuity to a former spouse. See 10U.S.C.S. § 1450(f)(4) (Lexis 2014) (“Former spouse coverage may be required by court order. A court order may require a person to elect ... to provide an annuity to a former spouse (or to both a former spouse and child).”). Rachel is correct in arguing that a District Court may order the election of a former spouse as a beneficiary of a survivorship annuity. However, when a court’s discretionary award of a SBP conflicts with a settlement agreement, “the language of the settlement agreement controls.” Williams v. Williams, 37 So. 3d 1171, 1175 (Miss. 2010). The main issue in this case is not whether the court abused its discretion in awarding the SBP to Rachel, but whether it erred by failing to adhere to the language of the Settlement Agreement. The terms of a dissolution agreement are enforceable as contract terms, pursuant to § 40-4-201(5), MCA. The construction and interpretation of a contract is a question of law, which we review for correctness. Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 19, 338 Mont. 41, 164 P.3d 851 (citing Ophus v. Fritz, 2000 MT 251, ¶ 19, 301 Mont. 447, 11 P.3d 1192). Therefore, we examine a district court’s ruling to determine whether it correctly applied the law in interpreting and applying the Agreement.
DISCUSSION
¶9 In separations or marital dissolutions, parties may enter into a written agreement dividing any property owned by either spouse. Section 40-4-201(1), MCA. The terms of a dissolution agreement are enforceable as contract terms. Section 40-4-201(5), MCA. When an agreement fails to define a term, a court should interpret the terms as they are “understood in their ordinary and popular sense.” Section 28-3-501, MCA; Cole, ¶ 27. Unless SBP benefits have been automatically bestowed upon a spouse, the language of a property settlement agreement controls. Williams, 37 So. 3d at 1175.
¶10 We first turn to the Agreement to determine whether its terms award Rachel a portion of Dan’s survivor annuity. Rachel argues that the terms “retirement,” “retirement account,” and “retirement plan” include Dan’s survivor annuity benefit. Those terms are not defined in the Agreement. The plain meaning of a “survivorship annuity,” however, is “an annuity providing for continued payments to a survivor, usu[ally] a spouse, after the original annuitant dies.” Black’s Law Dictionary 99 (Bryan A. Garner ed., 8th ed., West 2004). This type of annuity, which pays-out upon the annuitant’s death, is distinguishable from retirement plans, benefits, or annuities, which cease upon the retiree’s death. Further, a survivorship annuity is closer to a life-insurance policy in form and function because it pays out upon an annuitant’s death, even if the annuitant has not reached retirement. See Briese v. Mont. Pub. Emples. Ret. Bd., 2012 MT 192, ¶¶ 26-27, 366 Mont. 148, 285 P.3d 550 (“Like life insurance, the [retirement plan] beneficiary designation is part of an agreement to pay monies on the death of the member and, like life insurance, the payment is not realized during the member's lifetime.”) (citations omitted); see also 10 U.S.C.S. §§1447-55 (Lexis 2014); 5 U.S.C.S. §§ 8331-51 (Lexis 2014). Because the Agreement here specifically held that “[e]ach party shall retain ownership of any Ufe insurance poUcies on his or her life,” the plain language of the agreement reflects the parties’ intent that Dan was to retain ownership of the Survivorship Annuity.
¶11 Rachel cites to numerous authorities in other jurisdictions that have recognized “survivorship annuities” to be included within retirement plans or benefits. See In re Marriage of Morris, 810 N.W.2d 880 (Iowa, 2012); Harvey v. Harvey, 905 S.W.2d 760 (Tex. App.—Austin 1995); Palmer v. Palmer, 142 P.3d 971 (N.M. App. 2006); In re Marriage of Payne, 897 P.2d 888 (Colo. App. 1995); Zito v. Zito, 969 P.2d 1144 (Alaska 1998). But even if we found “survivorship annuity” to be within the plain meaning of “retirement,” Rachel fails to address the effect of the phrase “earned during the marriage.” Although subsections 8(a) and 8(e) award Rachel 50% of Dan’s federal employment and National Guard retirement, that award of Dan’s benefits was limited to those benefits “earned during the marriage.” Dan’s survivor annuity did not exist during the marriage, and even at the time of the District Court’s hearing, Dan had not elected the benefit or purchased the policy. As such, the Agreement’s language clearly prohibits Rachel from claiming future benefits or annuities acquired by Dan after the dissolution of the marriage. In addition, the authorities cited by Rachel all concern a survivorship annuity that was acquired and gained value during the marriage, or had specifically included SBP in the dissolution agreement, and therefore, they are inapposite to the present facts. In re Morris, 810 N.W.2d at 882 (“Nearly all of [husband’s] retirement benefits accrued during their marriage.”); Harvey, 905 S.W.2d at 764 (“Although the original decree did not specifically mention ‘survivor benefits,’ it... awarded [wife] ‘45 per cent of the present value of [husband’s] accrued benefits,’ and stated that [wife] ‘may elect any form of payment of her portion of the available benefits.’ ”) (emphasis added); Palmer, 142 P.3d at 976 (“[T]he settlement agreement makes it clear that the division of the retirement benefits was through the ‘reserved jurisdiction,’ or ‘pay as it comes in’ method. The settlement agreement states: “Wife is entitled to a portion of the proceeds of the retirement as Husband receives such proceeds.’ ”) (emphasis in original); In re Payne, 897 P.2d at 889 (“[H]usband's right to receive military pension benefits was acquired almost entirely during the parties' marriage ....”); Zito, 969 P.2d at 1447 (“[S]urvivor benefits are an intrinsic part of ‘the retirement benefits earned dining the marriage’....”).
¶12 The same problem arises with Rachel’s reliance on In re Marriage of Bowman, 226 Mont. 99, 102, 734 P.2d 197, 202 (1986), to argue that the termination of a wife’s survivor benefits jeopardizes her investment in the marital estate. That case, like the out-of-state authorities cited by Rachel, concerns a survivorship benefit that existed and gained value during the marriage, not a survivorship annuity that does not yet exist and will gain value only after the dissolution. See In re Bowman, 226 Mont. at 108, 734 P.2d at 203. Unlike the parties in Bowman, Rachel’s “investment in the marital estate” has not been jeopardized because the annuity was never part of the marital estate. The Agreement was clear and unambiguous in holding that Rachel was not entitled to benefits or annuities gained by Dan after the dissolution.
¶13 Finally, Rachel argues that the Agreement was only meant to cover part of the marital estate, and that the parties understood that the SBP would be divided by a “separate order.” That is not supported by the plain language of the Agreement. The “separate order” was to address only the ten years of retirement earned by Dan during the marriage. The Agreement was silent as to any survivorship annuity, but expressly disclaimed all rights to each other’s life insurance policies, and the SBP fits that definition. The Agreement also contained a mutual release, which stated that, “[i]n consideration of the execution of this agreement, and the terms and conditions hereof, each party hereto releases and forever discharges the other party ... irom any and all rights, claims, demands, and obligations except as herein specifically provided....” Rachel’s claim to the SBP was a new demand outside the terms of the parties’ Agreement and therefore waived by the mutual release provision.
¶14 Because the Agreement was clear in its terms, the District Court could modify the Agreement’s terms only upon a finding of unconscionability. Section 40-4-201(3), MCA; In re Marriage of Blankenship, 210 Mont. 31, 35, 682 P.2d 1354, 1356 (1984). A district court commits reversible error by modifying a settlement agreement without first finding it to be unconscionable. In re Marriage of Franks, 275 Mont. 66, 70, 909 P.2d 712, 714-15 (1996). The District Court made no finding of unconscionability, so its modification of the terms of the Agreement constituted an error of law.
CONCLUSION
¶15 The District Court’s order requiring Dan to name Rachel as the beneficiary of the SBP annuity is reversed.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, RICE and BAKER concur.
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JUSTICE BAKER
delivered the Opinion of the Court.
¶1 Timothy Blixseth, Overlook Partners, LLC, and 395 Lampe, LLC, appeal an order of the Fifth Judicial District Court granting summary judgment to Greg LeMond. LeMond cross-appeals. Although the parties raise numerous contentions, we restate the dispositive issues as follows:
¶2 1. Whether the District Court erred when it dismissed Blixseth from this action.
¶3 2. Whether Overlook Partners and Lampe obtained their interests in the Overlook Lots subject to the outcome ofLeMond’s claim against Yellowstone Development.
¶4 3. Whether Overlook Partners or Lampe may challenge the stipulations between LeMond and Yellowstone Development’s bankruptcy Trustee.
¶5 4. Whether the District Court properly exercised its equitable powers in the entry of its final judgment.
¶6 We affirm in part, reverse in part, and remand.
PROCEDURAL AND FACTUAL BACKGROUND
¶7 This case involves a property dispute at the Yellowstone Mountain Club, a private ski and golf resort in Madison County. LeMond owned property at the Yellowstone Mountain Club and sought to purchase an adjacent property, Lot 11, from its owner, Yellowstone Development. Negotiations between LeMond and Yellowstone Development began in 1999 or 2000. Blixseth represented Yellowstone Development in the negotiations.
¶8 Blixseth sent an e-mail on behalf of Yellowstone Development on September 21, 2000. The e-mail stated, “The deal is that if Greg brought in 10 people who bought at the club, he would receive the lot.” The e-mail continued, “We did reach agreement that if after 5 years he had brought in less than the 10, he could pay the difference at the rate of $100,000 per person.” LeMond maintains that the e-mail memorialized an oral contract for the purchase of Lot 11 from Yellowstone Development for $1,000,000. The contract provided that LeMond would receive an offset of $100,000 for each new member whom LeMond was able to “bring in” to the Yellowstone Mountain Club. The offset was allowed up to the amount of the entire purchase price, so LeMond would receive the property without paying any money if he brought in ten new members.
¶9 Blixseth acknowledged that he engaged in negotiations on behalf of Yellowstone Development to this effect, but denied that a contract was ever created. The e-mail also stated that Blixseth wanted to “try to get [a contract] put together in the near future.” Later communications between Blixseth and LeMond occurred, but there was never a formal contract signed by both parties. LeMond engaged in various subsequent efforts to promote the Yellowstone Mountain Club. He claims that these efforts fulfilled his obligations under the alleged contract.
¶10 Yellowstone Development discovered that various civil engineering and entitlement issues likely rendered Lot 11 undevelopable. To remedy this, Yellowstone Development combined Lot 11 with twenty-three acres of additional undeveloped property in December 2005. The new, larger property was replatted as Lot 11A. In March 2006, Yellowstone Development traded Lot 11A to YSC, LLC, in exchange for Lot 102A, and subsequently subdivided Lot 102Ainto five new lots. These lots were named the Overlook Lots. In an affidavit, Blixseth claimed that the original Lot 11 was 5.09 acres and the total acreage of all five Overlook Lots is 28 acres.
¶11 LeMond filed his first complaint on January 23, 2007, against Yellowstone Development, Yellowstone Mountain Club, and Blixseth Group, Inc. On June 14,2007, LeMond amended his complaint to add several claims, including unjust enrichment and the creation of a constructive trust. LeMond argued, among other things, that Yellowstone Development was under an equitable duty to convey the Overlook Lots to LeMond based on its failure to covey Lot 11 pursuant to the contract. On the same day, LeMond filed a Notice of Lis Pendens on the Overlook Lots to notify potential purchasers of his constructive trust claim for title to the Overlook Lots. LeMond filed a second amended complaint on August 17,2007, adding Blixseth individually as a party.
¶12 On September 17, 2007, LeMond filed a motion for partial summary judgment on the issue whether a contract existed. Meanwhile, Yellowstone Development moved to expunge LeMond’s lis pendens. Following a hearing, both motions were denied in open court on April 14, 2008.
¶13 Blixseth and a partner formed Overlook Partners in March 2008 for the purpose of purchasing the Overlook Lots from Yellowstone Development. Overlook Partners bought the Overlook Lots for $15,000,000 on April 3, 2008. The deed conveying the Overlook Lots from Yellowstone Development to Overlook Partners stated that the conveyance was “SUBJECT, HOWEVER” to LeMond’s lis pendens and claim for title to the Overlook Lots against Yellowstone Development. After the purchase, Blixseth personally held a promissory note made by Overlook Partners for $15,000,000, which was secured by a mortgage on the Overlook Lots. Blixseth later assigned the note and the mortgage to Lampe.
¶14 In November 2008, both the Yellowstone Mountain Club and Yellowstone Development filed for bankruptcy in the U.S. Bankruptcy Court for the District of Montana. The bankruptcy proceedings were consolidated. On February 9,2009, due to the bankruptcy, the District Court stayed the proceedings in this case. LeMond filed a claim in the consolidated bankruptcy action for $15,000,000 based on the alleged breach of the Lot 11 contract. On March 20, 2009, Overlook Partners filed a claim in the bankruptcy action, asserting that it owned the Overlook Lots and that Yellowstone Development was obligated to defend and indemnify it against LeMond’s claim.
¶15 On June 2, 2009, the Bankruptcy Court adopted the Third Amended Plan of Reorganization. This plan called for the creation of the Yellowstone Club Liquidating Trust (YCL Trust) to manage the assets of Yellowstone Development and Yellowstone Mountain Club in bankruptcy. YCL Trust is the successor in interest to Yellowstone Development and Yellowstone Mountain Club. YCL Trust is responsible for liquidating the assets in and memaging claims against the Yellowstone Development and Yellowstone Mountain Club bankruptcy estates.
¶16 On January 26, 2010, YCL Trust and LeMond filed a stipulated motion in the bankruptcy action (referred to in this Opinion as the “Bankruptcy Stipulation”) to settle LeMond’s claim against Yellowstone Development. YCL Trust determined that LeMond’s claim should be allowed in the amount of $650,000 and agreed to lift the bankruptcy stay to allow LeMond to pursue title to the lots in the District Court action. YCL Trust stipulated that a contract for the sale of Lot 11 to LeMond existed, but YCL Trust retained the right to defend against LeMond’s claim in the District Court at its discretion. The bankruptcy court accepted the stipulation on June 15,2010.
¶17 On November 2, 2010, the U.S. District Court for the District of Montana reversed and remanded the Third Amended Plan of Reorganization in the appeal from the bankruptcy court. Meanwhile, in the recently rekindled action before the District Court, YCL Trust decided not to contest LeMond’s claim. On November 24, 2010, YCL Trust and LeMond filed a stipulated motion for entry of judgment in the District Court. Once again, YCL Trust stipulated to the existence of a contract with LeMond. This time, however, YCL Trust additionally stipulated to the existence of a constructive trust in favor of LeMond for the Overlook Lots and stipulated that LeMond’s claim took priority over any claims arising after June 14,2007, because of the lis pendens. For the sake of clarity, this stipulated motion before the District Court is referred to in this opinion as the “Constructive Trust Stipulation.’’ The District Court entered judgment on the same day the motion was filed, awarding LeMond a constructive trust to the Overlook Lots.
¶18 On January 21, 2011, Blixseth filed a motion for relief from the judgment pursuant to M. R. Civ. P. 60(b). On April 4,2011, the District Court denied the Rule 60(b) motion. LeMond filed a fourth amended complaint on April 28,2011, alleging a single count of quiet title to the Overlook Lots. LeMond added Lampe and Overlook Partners as defendants, but did not include Blixseth Group, Inc. Blixseth, individually, and Overlook Partners filed counterclaims against LeMond. On June 5,2012, LeMond moved for summary judgment on his quiet title claim against Overlook Partners and Lampe, arguing that the lis pendens barred the defendants from receiving title. LeMond also filed a motion to dismiss several affirmative defenses on August 3,2012, and a motion for summary judgment against Blixseth individually on August 14,2012.
¶19 On November 28, 2012, the District Court granted LeMond’s motion for summary judgment against Blixseth and granted LeMond’s request to prohibit the defendants from attacking the validity of the contract between Yellowstone Development and LeMond. In the same order, the District Court denied LeMond’s motion for summary judgment on the quiet title claim against Overlook Partners and LeMond. The court explained that summary judgment was not proper because a lis pendens cannot create substantive rights.
¶20 On March 22, 2013, LeMond filed another motion for summary judgment, this time clarifying that his substantive right to title did not depend on the lis pendens. LeMond argued that the lis pendens was significant only to show that the District Court’s order approving the stipulations between YCL Trust and LeMond took precedence over Overlook Partners’ purchase of the lots from Yellowstone Development. The District Court granted this motion at a May 13, 2013 hearing. Final Judgment was entered on June 21,2013, quieting title to all five Overlook Lots in favor of LeMond. Blixseth, Overlook Partners, and Lampe appeal. LeMond cross-appeals the District Court’s failure to cancel the appellants’ deed and mortgage in light of the quiet title judgment in his favor.
STANDARDS OF REVIEW
¶21 This Court reviews a district court’s grant of summary judgment de novo. N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450. S ummary judgment is appropriate if the evidence shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56.
¶22 Quiet title actions are actions in equity. Johnson v. Estate of Shelton, 232 Mont. 85, 88, 754 P.2d 828, 830 (1988). In reviewing a district court’s exercise of its equitable powers, this Court is required to review “all questions of fact arising upon evidence presented in the record” to determine if the court’s findings are clearly erroneous. Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 11, 307 Mont. 45, 36 P.3d 408 (citation omitted). We determine if the court’s interpretation of the law is correct. Kauffman, ¶ 11.
DISCUSSION
¶23 1. Whether the District Court erred when it dismissed Blixseth from this action.
¶24 The District Court dismissed Blixseth from this case on the basis that he does not claim title to the Overlook Lots and he has no individual standing to pursue any counterclaims. Blixseth does not own or hold any direct interest in the Overlook Lots. He also lacks a personal interest in the mortgage on the Overlook Lots currently held by Lampe.
¶25 Standing is a threshold requirement in every case. Baxter Homeowners Assn. v. Angel, 2013 MT 83, ¶ 14, 369 Mont. 398, 298 P.3d 1145. Standing to appeal requires “a direct, immediate and substantial interest in the subject which would be prejudiced by the judgment or benefited by its reversal.” Mont. Power Co. v. Mont. Dept. of Pub. Serv. Reg., 218 Mont. 471, 480, 709 P.2d 995, 1000-01 (1985). Although Blixseth appeals the disposition of the Overlook Lots to LeMond and makes many arguments regarding why he believes the District Court erred in this matter, he does not argue on appeal that his individual dismissal was improper. Blixseth argues instead that denyingproperty owners the right to a hearing is a deprivation of property without due process. Such a right applies, however, only to parties who assert an ownership interest in the property. Similarly, his challenges to the authority of YCL Trust and the court’s decision not to expunge the hs pendens cannot be raised absent a personal interest in the outcome of the litigation.
¶26 We agree with the District Court that Blixseth’s claims of a personal interest are not persuasive. Blixseth transferred all of his interests in the Overlook Lots to either Overlook Partners or Lampe. See Bar Ok Ranch Co. v. Ehlert, 2002 MT 12, ¶ 50, 308 Mont. 140, 40 P.3d 378; Hjartarson v. Hjartarson, 2006 MT 273, ¶¶ 52-54, 334 Mont. 212, 147 P.3d 164. The District Court did not err in dismissing Blixseth. Because he has no personal interest in this litigation, his arguments on appeal do not require further discussion.
¶27 2. Whether Overlook Partners and Lampe obtained their interests in the Overlook Lots subject to the outcome ofLeMond’s claim against Yellowstone Development.
¶28 A hs pendens preserves the status quo with regard to property interests throughout a legal action and binds third parties claiming an interest in property to the outcome of pending htigation. Fox v. Clarys, 227 Mont. 194, 196, 738 P.2d 104, 105 (1987). A hs pendens serves to “hold the subject matter of htigation within the jurisdiction and control of the court during the pendency of an action so that any final relief granted by the court would be at once binding and effective.” Fox, 227 Mont. at 196, 738 P.2d at 105; Conn. v. Doehr, 501 U.S. 1, 29, 111 S. Ct. 2105, 2122 (1991) (Rehnquist, J., concurring) (a notice of hs pendens causes the estabhshed interest to relate back to the date of the filing of the hs pendens). The doctrine of hs pendens provides the legal system the control and assurance that judgments may be carried out in favor of the prevailing party. Richard R. Powell, Powell on Real Property vol. 14, § 82A.01,6 (Michael Allan Wolf ed., LexisNexis 2014).
¶29 A hs pendens “generally renders third persons who subsequently purchase or encumber an interest in the subject property bound by the final disposition of the action.” Fox, 227 Mont. at 196, 738 P.2d at 105. The property still may be transferred, but the purchaser takes the property subject to the judgment in the pending htigation. Powell, Powell on Real Property, at § 82A.01,3. This means that the purchaser of property subject to a lis pendens receives only “ ‘whatever title remains in Ms vendor at the termination of the suit.’ ” See Hamman v. S.W. Gas Pipeline, Inc., 821 F.2d 299, 304 (5th Cir. 1987) (quoting 1 Tex.Jur.3d Actions § 289 (1979)); Gookin v. Huntley, 254 Mont. 302, 304-05, 837 P.2d 412, 414 (1992). “If the litigation is won by the grantor, the conveyance is effective. If not, the grantee may acquire notMng.” Hamman, 821 F.2d at 304.
¶30 As tMs authority makes clear, because Overlook Partners purchased the Overlook Lots after the lis pendens was recorded, it is "bound by the final disposition of the action.” Fox, 227 Mont. at 196, 738 P.2d at 105. Thus, although Overlook Partners acquired an interest in the lots before the Constructive Trust Stipulation was entered, once LeMond obtained judgment in Ms favor, LeMond’s title was considered recorded on the date of the lis pendens, wMch occurred before the sale to Overlook Partners. TMs makes the conveyance to Overlook Partners void. Section 70-21-304, MCA (Conveyance void as against other conveyance recorded first). Lampe’s ability to foreclose on its mortgage is contingent upon Overlook Partners’ valid title. Because the security interest in the Overlook Lots created by Lampe’s mortgage depends on Overlook Partners’ holding title to the lots, Lampe’s security interest in the lots also is void.
¶31 Overlook Partners argues that Montana’s Us pendens statute is unconstitutional because the filing of a lis pendens constitutes a taking in violation of both the Urnted States and Montana Constitutions. The Takings Clause of the Urnted States Constitution provides that private property shall not “be taken for public use, without just compensation.” U.S. Const, amend. V. The Montana Constitution states that “[p]rivate property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner.” Mont. Const, art. II, § 29. Overlook Partners claims that the lis pendens statute is “a prejudgment remedy that effectuates the taking of a property interest” by temporarily rendering the property unmarketable. In support of tMs argument, Overlook Partners cites to two cases that do not involve the filing of a lis pendens. Fuentes v. Shevin, 407 U.S. 67, 84, 92 S. Ct. 1983, 1996 (1972) (property deprivation based on a writ of replevin); N. Ga. Finishing v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719 (1975) (Georgia garnishment statute).
¶32 Overlook Partners’ argument fails because a lis pendens is not a remedy. A lis pendens only protects a party’s ability to recover if a judgment is in its favor. A lis pendens does not create substantive rights; it merely puts prospective purchasers on notice of a pending suit involving an issue of title to the real property. Doehr, 501 U.S. at 29, 111 S. Ct. 2122. Here, the lis pendens functioned exactly as intended. The lis pendens provided notice to potential purchasers of the property, including Overlook Partners, that LeMond claimed title to the Overlook Lots. Overlook Partners knowingly acquired only that interest held by Yellowstone Development at the termination of LeMond’s action. Because Overlook Partners took the property subject to LeMond’s claim, it was not deprived of a constitutionally-protected property interest.
¶33 Overlook Partners argues next that the District Court erred by allowing the lis pendens to remain on the property because “LeMond’s claim is grounded in money damages.” This Court has held that a “lis pendens is not a tool for a litigant to secure a potential money judgment by tying up a debtor’s real property.” West v. Club at Spanish Peaks L.L.C., 2008 MT 183, ¶ 61, 343 Mont. 434, 186 P.3d 1228 (citations omitted). In West, we observed that “[cjourts generally reject the notion that a lis pendens is appropriate in cases where no specific relief is sought which affects in some way the title, possession, use, or incidents of real property.” West, ¶ 61. In West, we upheld the determination that a lis pendens was improper when filed solely on the basis that a property transfer gave rise to the plaintiffs claim for damages for lost business opportunities and revenues. We have not, however, strictly construed this limitation on the lis pendens statute. Rather, we have held that an “actual claim to title or possession of the subject property” is not required when the action underlying a lis pendens might affect the title or right of possession of real property. Paulson v. Lee, 229 Mont. 164, 168, 745 P.2d 359, 361 (1987).
¶34 Overlook Partners’ argument misses its mark because LeMond’s claim for a constructive trust alleged facts that, if successful, actually would affect “in some way the title, possession, use, or incidents of real properly.” West, ¶ 61. LeMond asserted that his contract with Yellowstone Development contemplated his acquisition of title to land if he fulfilled his obligations, which he claimed that he did. The District Court correctly rejected Overlook Partners’ argument.
¶35 Lampe argues that summary judgment against it should be set aside because the Constructive Trust Stipulation, upon which the court relied in granting judgment, does not “bind” Lampe. Lampe asserts that it was not named as a party when the November 24, 2010 judgment was entered and therefore is not bound by the judgment. Lampe’s argument misunderstands the effect of the lis pendens and of the judgment on its claim to the Overlook Lots. Lampe does not dispute that it accepted assignment of the note and mortgage on the Overlook Lots after LeMond’s lis pendens was filed. Because Lampe’s security interest in the Overlook Lots is conditioned on Overlook Partners holding title to the Overlook Lots, Lampe’s contractual interest in the lots disappears along with that of Overlook Partners, regardless of when Lampe was added as a defendant in this action.
¶36 Overlook Partners and Lampe decry the unfairness of their property interests being subject to YCL Trust’s decision to settle. This Court has noted that the doctrine of lis pendens “often provides harsh results and generally has not been extended by courts without strict necessity.” Fox, 227 Mont. at 196-97, 738 P.2d at 105. Here, however, the lis pendens is necessary to protect LeMond’s interests, which could be recorded only by way of a lis pendens as there was no written contract. Overlook Partners and Lampe both acquired their interests with notice of LeMond’s claim, a fact confirmed by the express language in the agreements conferring those interests. Thus, Overlook Partners and Lampe knowingly put themselves in a position where their interests were subject to prior litigation in which they were not parties and over which they had no control. The purchaser of property who has notice of another claim through a lis pendens proceeds at its own risk. See Hamman, 821 F.2d at 304; Hidden Meadows Dev. Co. v. Mills, 590 P.2d 1244, 1247 (Utah 1979). The District Court correctly held that Overlook Partners took title to the Overlook Lots subject to LeMond’s lis pendens.
¶37 3. Whether Overlook Partners or Lampe may challenge the stipulations between LeMond and Yellowstone Development’s bankruptcy Trustee.
¶38 Overlook Partners and Lampe assert various challenges to the stipulations between LeMond and YCL Trust. Overlook Partners argues that YCL Trust is judicially estopped from asserting claims different from those asserted by Yellowstone Development, that the alleged contract between LeMond and Yellowstone Development does not satisfy the statute of frauds, and other issues regarding possible corruption or YCL Trust’s inability to stipulate. Lampe argues similarly that the Constructive Trust Stipulation was the result of misconduct between YCL Trust and LeMond.
¶39 First, Overlook Partners argues that judicial estoppel prevents YCL Trust from making claims different from those previously asserted by Yellowstone Development. The purpose of judicial estoppel is to protect the integrity of the judicial system. Kauffman, ¶ 15. The doctrine of judicial estoppel binds a party to its judicial declarations and precludes a party from taking a position inconsistent with previously made declarations in a subsequent action or proceeding. Kauffman, ¶ 15. The elements of judicial estoppel are:
1) the party being estopped must have knowledge of the facts at the time the original position is taken;
2) the party must have succeeded in maintaining the original position;
3) the position presently taken must be actually inconsistent with the original position; and
4) the original position must have misled the adverse party so that allowing the estopped party to change its position would injuriously affect the adverse party.
Traders State Bank v. Mann, 258 Mont. 226, 243, 852 P.2d 604, 614 (1993), overruled on other grounds by Turner v. Mt. Eng’g & Constr., 276 Mont. 55, 59, 915 P.2d 799, 802 (1996).
¶40 The second element has not been satisfied here. Yellowstone Development did not “succeed” in contesting facts later stipulated by YCL Trust. To satisfy this element, a party “must have been at least successful in arguing its original position against the party asserting the estoppel.” Mann, 258 Mont. at 243, 852 P.2d at 614-15 (citing DeMers v. Roncor, Inc., 249 Mont. 176, 180-81, 814 P.2d 999, 1002 (1991)). The record contains no evidence that Yellowstone Development successfully maintained its original arguments before the District Court prior to the bankruptcy filings and stay of the proceedings. As Yellowstone Development’s successor in this litigation, YCL Trust became vested with the authority to make decisions on Yellowstone Development’s behalf, including decisions regarding settlement and stipulations to resolve factual disputes.
¶41 Overlook Partners makes arguments based on LeMond’s failure to satisfy the Statute of Frauds and on YCL Trust’s lack of authority to stipulate regarding the alleged contract on behalf of Yellowstone Development. The trouble with these arguments — and with other arguments the Appellants raise regarding the contract between LeMond and Yellowstone Development — is that the existence of a contract already has been conclusively established by the Bankruptcy Court. The doctrine of the law of the case is the practice of courts “ ‘generally to refuse to reopen what has been decided.’ ” Houden v. Todd, 2014 MT 113, ¶ 45, 375 Mont. 1, 324 P.3d 1157 (quoting McCormick v. Brevig, 2007 MT 195, ¶ 38, 338 Mont. 370, 169 P.3d 352). The law of the case doctrine applies to coordinate courts, including federal court decisions in related litigation. Houden, ¶ 45 (citing Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure vol. 18B, § 4478.4, 770 (2d ed., West 2002)). Allowingthe Appellants to relitigate issues already determined by the bankruptcy court “disregards the comity afforded to a coordinate court.” Houden, ¶ 45.
¶42 Blixseth and Overlook Partners raised the same arguments before the Bankruptcy Court, attacking the stipulation that a contract existed. After a careful review of the facts and consideration of the applicable law, the Bankruptcy Court determined that the Bankruptcy Stipulation between LeMond and YCL Trust was fair and equitable, including the stipulation that a contract for LeMond’s acquisition of Lot 11 existed. The Bankruptcy Court made its decision after considering the probability of LeMond’s success in the litigation, the difficulties involved in the matter of collection, the complexity of the litigation involved, and the paramount interest of the creditors and a proper deference to their reasonable views of the premises. In re Yellowstone Mt. Club, LLC, 2010 Bankr. LEXIS 2000, 2010 WL 2483986 (Bankr. D. Mont. June 15, 2010) (citing Martin v. Kane (In re A & C Properties), 784 F.2d 1377, 1380-81 (9th Cir. 1986)). The validity of the Bankruptcy Stipulation, regarding the existence of a contract with LeMond, already has been established by the Bankruptcy Court and is the law of the case. This Court is not a proper forum for appellate review of the Bankruptcy Court. The only issues remaining in the reinitiated District Court action were whether LeMond was entitled to a constructive trust, the scope of that trust and whether the trust took priority over other interests acquired after the lis pendens. When the stay of the District Court proceedings lifted, the question whether a contract existed between LeMond and Yellowstone Development was no longer at issue.
¶43 Overlook Partners and Lampe also assert misconduct by YCL Trust and LeMond in entering the Constructive Trust Stipulation once the case returned to the District Court. The Bankruptcy Court’s order allowed LeMond “to reinitiate the Madison County Case and prosecute it to a judgment regarding LeMond’s right to the Overlook Lots.” In re Yellowstone Mt. Club, 2010 Bankr. LEXIS at 4. The order further provided that the Trustee, in his discretion, “may choose to defend against such efforts or may allow such efforts to proceed without objection.” In re Yellowstone Mt. Club, 2010 Bankr. LEXIS at 4. A bankruptcy trustee is vested with the exclusive power to raise legal claims on behalf of the estate. Est. of Spirtos v. One San Bernardino Co. Superior Ct. Case Numbered SPR 02211, 443 F.3d 1172, 1175 (9th Cir. 2006). The Trustee, already having conceded the existence of a contract, decided to allow LeMond’s efforts in this District Court case to proceed without objection. By proceeding with the Constructive Trust Stipulation, the Trustee was exercising the discretion expressly afforded him by the Bankruptcy Court’s order. Finally, Overlook Partners and Lampe waived any claim that the Constructive Trust Stipulation was the product of collusion between LeMond and the YCL Trustee when they failed to raise an affirmative defense to that effect. M. R. Civ. P. 8(c)(1); Meadow Lake Ests. Homeowners Assn. v. Shoemaker, 2008 MT 41, ¶ 31, 341 Mont. 345, 178 P.3d 81; see Johnson v. Allstate Ins. Co., 262 S.W.3d 655, 667 (Mo. Ct. App. 2008) (collusion must be raised as an affirmative defense to validity of agreement).
¶44 We are not persuaded by the Appellants’ arguments. YCL Trust is not judicially estopped from asserting claims different from those asserted by Yellowstone Development; the contract arguments already have been settled by the Bankruptcy Court; the Trustee acted within his authority and discretion in choosing not to defend against LeMond’s complaint; and any suggestion of possible collusion between YCL Trust and LeMond was not properly raised. The District Court correctly held that Overlook Partners and Lampe may not challenge the stipulations of LeMond and YCL Trust.
¶45 4. Whether the District Court properly exercised its equitable powers in the entry of its final judgment.
¶46 In its final judgment, the District Court quieted title in favor of LeMond to all five Overlook Lots on the basis of the Constructive Trust Stipulation between LeMond and YCL Trust. “A court creates a constructive trust ‘to work an equitable result.’ ” N. Cheyenne Tribe, ¶ 32 (citing Eckart v. Hubbard, 184 Mont. 320, 326, 602 P.2d 988, 991 (1979)). In matters involving equity, this Court has a duty to determine all of the issues of the case and to do complete justice. Section 3-2-204(5), MCA; Kauffman-Harmon, ¶ 11. The final issue we must consider is whether the District Court properly exercised its equitable powers.
¶47 A constructive trust may be imposed where a person wrongfully disposes of the property of another knowing that the disposition is wrongful and acquires in exchange other property. Restatement (First) of Restitution § 202 (1937). “[Cjonstructive trusts are involuntary in nature and arise by operation of law.” Johnson v. Kenneth D. Collins Agency, 263 Mont. 137, 140, 865 P.2d 312, 313 (1993). A constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground that the person holding title would be unjustly enriched if he or she were permitted to retain it. Section 72-38-123, MCA; N. Cheyenne Tribe, ¶ 30. The imposition of the constructive trust is a remedy for the unjust enrichment. N. Cheyenne Tribe, ¶ 39.
¶48 Unjust enrichment is “[t]he retention of a benefit conferred by another, without offering compensation, in circumstances where compensation is reasonably expected.” Owen v. Skramovsky, 2013 MT 348, ¶ 25, 372 Mont. 531, 313 P.3d 205 (quoting Black’s Law Dictionary 1536 (Bryan A. Garner ed., 7th ed., West 1999)). “The theory of unjust enrichment requires that a person who has been unjustly enriched at the expense of another must make restitution to the other.... The measure of this equitable restitution interest is either the quantum meruit value of plaintiffs labor and materials or the value of the enhancement to the defendant’s property.” Robertus v. Candee, 205 Mont. 403, 408, 670 P.2d 540, 542 (1983) (citations omitted); Owen, ¶¶ 31-32.
¶49 Where the defendant’s gain is the product not solely of the plaintiffs interest but also of contributions made by the defendant, the measure of restitution is particularly difficult. “There are no easy formulas by which such problems may be decided; instead, the court must resort to general considerations of fairness, taking into account the nature of the defendant’s wrong, the relative extent of his contribution, and the feasibility of separating this from the contribution traceable to the plaintiffs interest.” George E. Palmer, The Law of Restitution vol. 1, § 2.12,161 (Aspen 1978).
¶50 The District Court did not provide adequate insight into the equitable considerations involved in granting LeMond title to the five Overlook Lots. The District Court focused on the fact that Overlook Partners and Lampe acquired their interests with notice, stating that “the fundamental equitable consideration here is that the Defendants pursued the course of action that they determined upon in 2008 having already been subject to notice of LeMond’s claims in 2007.” The court also stated that it was “hard pressed to find that substantial inequity is done in connection with [Blixseth’s] personal interest” based on other litigation. The District Court, relying on YCL Trust’s decision not to defend the action, did not consider whether the stipulations it approved provided an appropriate measure of unjust enrichment between Yellowstone Development and LeMond.
¶51 A constructive trust is created through the court’s equitable powers. LeMond’s constructive trust encompasses property only “if, in equity and conscience, it belongs to [him].” Dan B. Dobbs, Law of Remedies vol. 1, § 4.3(2), 590 (West 1993). LeMond’s contract was for the purchase of Lot 11, a five-acre parcel that the parties valued at $1,000,000. Yellowstone Development combined twenty-three acres of additional property with Lot 11 to create Lot 11A, which eventually became the Overlook Lots. The actual value of the Overlook Lots has not been established, but Blixseth claims that each of the five Overlook Lots comprises five acres, individually worth between $2,000,000 and $3,000,000. It is clear from the Bankruptcy Court’s order that Yellowstone Development was obligated to transfer Lot 11 to LeMond and was unjustly enriched by failing to do so. However, LeMond is entitled to enforce a constructive trust worth only the equitable value of the parties’ bargain.
¶52 The “equity of the transaction must shape the measure of relief.” Beatty v. Guggenheim Exploration Co., 389, 122 N.E. 378, 381 (N.Y. 1919). Without adequate findings by the District Court, the question whether the Overlook Lots are the equitable equivalent of Lot 11 cannot be answered. This Court looks favorably on settlements. Tripp v. Jeld-Wen, Inc., 2005 MT 121, ¶ 48, 327 Mont. 146, 112 P.3d 1018. We affirm the court’s decision to establish a constructive trust in favor of LeMond, but the court must consider whether the trust constitutes the appropriate measure of unjust enrichment, even when the parties have stipulated to the result. Findings must be sufficient to permit review without speculation into the district court’s reasoning. In re the Marriage of Crowley, 2014 MT 42, ¶ 26, 374 Mont. 48, 318 P.3d 1031. The District Court did not support the award of title to all five Overlook Lots with sufficient findings for us to determine whether the court’s unjust enrichment determination was equitable. We reverse the judgment and remand for additional findings on the measure of unjust enrichment. The court may, in its discretion, receive additional evidence on this issue.
CONCLUSION
¶53 For the reasons explained above, LeMond’s claim is superior to the claims of Blixseth, Overlook Partners and Lampe. In exercising its equitable powers, however, the District Court must provide sufficient findings to explain the scope of the restitution awarded. In light of the possibility that the restitution awarded to LeMond may change on remand, LeMond’s cross-appeal, which requests that the District Court cancel the Appellants’ deed and mortgage, is not yet ripe for review.
¶54 Affirmed in part, reversed in part, and remanded.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, RICE and McKINNON concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 The Eleventh Judicial District Court, Flathead County, partially denied A.S.M.’s motion to modify a transfer order under § 41-5-208, MCA (§ 208 order). A.S.M. appeals. We affirm.
¶2 A restatement of the dispositive issue on appeal is:
¶3 Did the District Court err when it did not modify the § 208 order to suspend A.S.M.’s sentence and terminate supervision by the Department of Corrections?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 A.S.M. is presently a 21 year-old male who has been diagnosed with significant developmental disabilities and mental illnesses, including Autism Spectrum Disorder (Asperger’s syndrome). On February 16,2007, A.S.M. admitted that he had committed the offense of sexual intercourse without consent, a felony, while he was a minor. The Youth Court declared A.S.M. a delinquent youth and a serious juvenile offender. A.S.M. was placed on formal probation until the age of 18 and until all conditions were met. The Youth Court ordered A.S.M. to successfully complete sex offender treatment, and between June 2007 and May 2010, he attended treatment programs in Texas and Colorado. However, he failed to successfully complete treatment.
¶5 On May 6,2011, the Youth Court issued a § 208 order transferring jurisdiction over A.S.M. from the Youth Court to the District Court and transferring supervisory responsibility of A.S.M. to the Department of Corrections (DOC). Pursuant to the order, A.S.M. was transferred from Pine Hills Youth Correctional Facility to Montana State Prison (MSP) on his eighteenth birthday. A.S.M. was not eligible for parole until he completed phases one and two of MSP’s sexual offender program. The District Court retained jurisdiction over the matter until A.S.M. reached the age of 25.
¶6 On December 7,2012, A.S.M. filed a motion to modify the § 208 order. A.S.M. requested that the court (1) give the DOC authority to place him in an appropriate residential treatment and educational program and (2) recommend that the DOC send him to Whitney Academy in Massachusetts (the Academy). The Academy is a private residential school and treatment facility that specializes in providing special education instruction and related services to adolescent and young adult males with developmental disabilities and trauma histories who have exhibited sexually abusive behavior. The State opposed A.S.M.’s motion, arguing that the court did not have the authority to grant the requested relief under § 41-5-208(5), MCA, which states in relevant part that “the district court may order that the youth... (a) be incarcerated in a state adult correctional facility, boot camp, or prerelease center; or (b) be supervised by the department.”
¶7 The court held a hearing on the motion on January 18,2013. At the hearing, expert witnesses testified that placement at the Academy was appropriate for A.S.M. The Director of Admissions at the Academy testified that A.S.M. had been screened for admission and accepted by the Academy. A DOC probation and parole officer testified that commitment to the DOC with placement at the Academy would be difficult, and that the transfer process to Massachusetts could take months. He further testified that if the court granted A.S.M.’s motion, A.S.M. would be immediately released from MSP even though it was unclear whether appropriate supervision would be available.
¶8 After receiving a request on behalf of A.S.M. for a due process hearing against the DOC, the Office of Public Instruction appointed Hearing Officer Leslie Halligan (Halligan) to determine whether A.S.M. was being denied a free appropriate public education while incarcerated. On May 15, 2013, Halligan issued an order concluding that A.S.M. had been denied a free and appropriate education by the DOC in violation of the Individuals with Disabilities Education Improvement Act of 2004, and that he was entitled to an award of compensatory services.
¶9 On June 10, 2013, the District Court issued its findings of fact, conclusions of law, and order on A.S.M.’s motion. The court found that A.S.M. was an untreated sex offender. The District Court took judicial notice of Halligan’s order but determined that remedial education issues were not within its jurisdiction, and that Halligan’s recommendations were purely advisory. The court concluded modification of the § 208 order was appropriate given A.S.M.’s difficulties in completing sex offender treatment; the court accordingly removed the parole restriction requiring A.S.M. to complete phases one and two of the sexual offender program. According to the District Court, this would “allow the [DOC] and Parole Board to fashion an appropriate program that protects the community, provides [A.S.M.] with the treatment he needs, and complies with the remedial education requirements imposed by Hearings Officer Halligan.” The court noted that “the DOC is now required to provide [A.S.M.] compensatory educational services, whether that be placement at Whitney Academy or services within the State of Montana or elsewhere,” and that “[r]elease on parole does not necessarily preclude attendance at Whitney Academy, but rather ensures that, through the DOC and the Parole Board, an appropriate plan is in place at all times.”
¶10 A.S.M. timely appealed the court’s order. A.S.M. seeks a remand of the case with instructions that the District Court modify its order to facilitate A.S.M.’s placement at the Academy by: (1) suspending his sentence on the condition that he participate in treatment at the Academy and in any recommended aftercare; and (2) terminating supervision by the DOC. A.S.M. concedes that release to the community is not appropriate for him. A.S.M. argues the District Court abused its discretion by keeping him in the adult corrections system, which may limit his chances of being accepted for supervision by Massachusetts. A.S.M. further argues the District Court’s decision was contrary to the express purposes of the Youth Court Act, was not based on the evidence in the record, and was based on a mistake of law, namely the court’s conclusion that imposition of the disposition sought by A.S.M. would require A.S.M.’s immediate release without conditions for appropriate supervision and treatment.
¶11 The State counters that the District Court had no statutory authority to release A.S.M., an untreated sex offender, from MSP without an appropriate discharge plan to ensure community safety. According to the State, the court’s June 10,2013 order “represents an act of grace to which A.S.M. may not have been entitled in the first place” and actually facilitates A.S.M.’s placement at the Academy. The State maintains that the court reasonably found that MSP was the only appropriate placement for A.S.M. to comply with his youth disposition and complete sex offender treatment. The State contends that A.S.M. should retain his adult inmate status, and that the court’s decision not to impose a supervisory disposition requiring A.S.M.’s immediate release from MSP to the DOC adult probation services was not in error.
STANDARD OF REVIEW
¶12 This Court reviews conclusions of law to determine if they are correct. In re M.W., 2012 MT 44, ¶ 9, 364 Mont. 211, 272 P.3d 112 (citation omitted).
DISCUSSION
¶13 Did the District Court err when it did not modify the § 208 order to suspend A.S.M.’s sentence and terminate supervision by the Department of Corrections?
¶14 As an initial matter, we emphasize that the District Court did in fact modify the order by eliminating the parole eligibility requirement. However, A.S.M. argues the District Court should have gone even further and modified the order to remove A.S.M. from the adult corrections system. We note that A.S.M. has never been convicted as an adult and is only in the adult corrections system because of the § 208 order.
¶15 A district court’s authority, including authority to modify an order, is dictated by the state and federal constitutions and by statute. In the absence of a specific grant of authority, a lower court does not have the jurisdiction to act. See e.g. State v. Ringewold, 2001 MT 185, ¶ 21, 306 Mont. 229, 32 P.3d 729 (citations omitted) (“[A] district court’s authority to impose sentences in criminal cases is defined and constrained by statute,” and “a district court has no power to impose a sentence in the absence of specific statutory authority.”); State v. Nelson, 1998 MT 227, ¶ 24, 291 Mont. 15, 966 P.2d 133. A transfer of jurisdiction and supervisory authority under § 41-5-208, MCA, terminates a youth court’s jurisdiction. State v. Andersen-Conway, 2007 MT 281, ¶ 15, 339 Mont. 439, 171 P.3d 678 (citing § 41-5-205(2)(a), MCA). However, § 41-5-1422(1), MCA, provides: “An order of the [youth] court may be modified at any time.” When the youth is committed to the DOC, “an order pertaining to the youth may be modified only upon notice to the department and a subsequent hearing.” Section 41-5-1422(2), MCA.
¶16 Though § 41-5-1422, MCA, is within the Youth Court Act, the plain language of the statute does not preclude a district court from modifying a youth court order following the appropriate hearing. It is consistent with the scheme of the Youth Court Act that a dispositional order may be modified, including by a district court, even though the youth is no longer a minor. See e.g. § 41-5-208(4), MCA (allowing a district court to impose conditions if a youth violates a disposition previously imposed by a youth court); § 41-5-102(2)(b), MCA (The Youth Court Act must be interpreted and construed to “[provide] a program of supervision, care, rehabilitation, detention, competency development, and community protection for youth before they become adult offenders.”). Because the May 6,2011 order was “[a]n order of the [youth] court,” the District Court had authority to modify the order pursuant to § 41-5-1422(1), MCA.
¶17 The District Court did not err by refusing to further modify the § 208 order, however. There is no evidence in the record that A.S.M. has been approved for transfer to Massachusetts through the interstate compact process, which is a prerequisite to his placement at the Academy. The District Court heard testimony that if the court modified the order as requested, A.S.M. would be immediately released from MSP, possibly before appropriate arrangements could be made by the DOC. The court heard further testimony that if Massachusetts denied supervision, A.S.M. would be in the community, perhaps without appropriate treatment options.
¶18 When a case involves a youth offender who was sentenced pursuant to the Youth Court Act, a court may consider the “express legislative purposes” of the Act, even after a § 208 transfer. See e.g. In re D.A.S., 2008 MT 168, ¶ 11, 343 Mont. 360, 184 P.3d 349 (citing § 41-5-102(2)(b), MCA). The court’s order is consistent with the Youth Court Act policy of ensuring there is oversight over a youth completing treatment. See § 41-5-102(2)(a)-(b), MCA. The District Court clearly fashioned a remedy in light of the facts and circumstances before it, balancing the youth’s need of treatment and the safety and protection of the community. Our review of the record clearly indicates that A.S.M. is not ready for release into the community and requires further treatment. Importantly, the court’s order does not preclude attendance at the Academy or at an alternative program such as Opportunities Resources, Inc. in Missoula. Halligan noted that “[t]he roadblock to implementation of this appropriate and necessary remedy [of placement at the Academy] is the District Court Order that places A.[S.]M. at MSP and requires that he complete Phases one and two of the sex offender program at MSP before he is eligible for parole.” This roadblock no longer exists. We conclude the District Court did not err by partially modifying the order to remove the parole eligibility requirement but refusing to further modify the order.
CONCLUSION
¶19 For the foregoing reasons, we affirm the District Court’s order partially modifying the § 208 transfer order.
CHIEF JUSTICE McGRATH, JUSTICES WHEAT, RICE and McKINNON concur.
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Appellant, Coleman Construction, Inc. (Coleman), appeals from the judgment of the Thirteenth Judicial District Court, Yellowstone County, awarding the successful Defendant, Beverly F. Kudrna, her attorney fees under § 70-24-442(1), MCA, a part of the Montana Residential Landlord and Tenant Act of 1997 (MRLTA).
¶2 This case arose from a February 11, 2002, fire that started in Kudrna’s mobile home and spread to destroy Coleman’s nearby trailer. Kudrna had leased her mobile home to an unrelated third-party, and she had rented the space adjacent to the mobile home to Coleman where its trailer was parked. Coleman used its trailer as a field office and as lodging for several employees.
¶3 Coleman sued Kudrna alleging that she was negligent in inspecting and maintaining the chimney and the coal-fire heater in her mobile home, and that her negligence caused the fire that destroyed Coleman’s trailer and its contents. Coleman also claimed at trial that Kudrna violated her duties of inspection and maintenance under the MRLTA and sought to recover its attorney fees under § 70-24-442(1), MCA. Coleman claimed damages of approximately $85,000. Kudrna offered to settle for $27,500, but Coleman declined.
¶4 The case went to trial and the jury found in favor of Kudrna. Kudrna moved the District Court to award her attorney fees and costs under the reciprocal provisions of § 70-24-442(1), MCA. The District Court awarded Kudrna attorney fees of $22,866.50 plus costs. Kudrna’s insurance company, which was not a party to the suit, paid for her defense. Coleman appeals the award of attorney fees.
¶5 Coleman does not contest that Kudrna was the prevailing party or the amount of the fees, but challenges Kudrna’s right to collect them as an insured landlord under the MRLTA. Thus, the issue on appeal is whether an insured defendant may recover attorney fees, under § 70-24-442, MCA, incurred in a successful defense of an action by a tenant. We review a trial court’s conclusion of law to determine whether it was correct. Paulson v. Flathead Conservation Dist., 2004 MT 136, ¶ 17, 321 Mont. 364, ¶ 17, 91 P.3d 569, ¶ 17.
¶6 Section 70-24-442, MCA, states:
(1) In an action on a rental agreement or arising under this chapter, reasonable attorney fees, together with costs and necessary disbursements, may be awarded to the prevailing party notwithstanding an agreement to the contrary.
(2) As used in this section, “prevailing party” means the party in whose favor final judgment is rendered.
¶7 Under the plain meaning of the statute, the district court may award attorney fees to the prevailing party. Section 70-24-442, MCA; Whalen v. Taylor (1996), 278 Mont. 293, 304, 925 P.2d 462, 468. The statute makes no distinction between insured and uninsured parties. The role of the Court is to interpret the meaning of the terms included in a statute, not to insert what has been omitted. Section 1-2-101, MCA; City of Billings v. Gonzales, 2006 MT 24, ¶ 13, 331 Mont. 71, ¶ 13, 128 P.3d 1014, ¶ 13. We decline to add a provision to the statute here that only uninsured landlords may recover attorney fees.
¶8 Coleman argues that if insured landlords are permitted to recover under § 70-24-442, MCA, the Court should extend Tripp v. Jeld-Wen, Inc., 2005 MT 121, 327 Mont. 146, 112 P.3d 1018, and require that a successful defendant show that the plaintiffs action was frivolous, unreasonable, or without foundation, before recovering attorney fees.
¶9 In Tripp, we held that, under the Montana Consumer Protection Act (MCPA), a court may only award attorney fees to a successful defendant, “upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Tripp, ¶ 37 (quoting Christianburg Garment Co. v. EEOC (1978), 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657). We concluded that the MCPA had a preference for protecting the plaintiff. Tripp, ¶ 37. Thus, under Tripp, the defendant in an action under the MCPA is afforded less protection than the plaintiff, and must meet a higher standard to recover fees. Tripp, ¶ 37.
¶ 10 The MCPA’s preference for protecting the interests of the plaintiff, over those of the defendant, is evidenced by the Act’s treble damages provision, which allowed only plaintiffs to recover treble damages. Tripp, ¶ 37. Conversely, the MRLTAprovides such protections for both the tenant and the landlord, as it allows a landlord to recover treble damages as well as a tenant. Section 70-24-422(f)(5), MCA.
¶11 Coleman also argues that the MRLTA was created to provide tenants with greater protection than landlords because landlords often have more economic resources than tenants. Coleman cites Whalen for this notion, claiming in its brief that a goal of the MRLTA was to “level the playing field between Landlords and Tenants; to provide equal access to justice.” In Whalen, we affirmed the District Court’s award of attorney fees, under § 70-24-442, MCA, to a plaintiff that had been represented by pro bono counsel. Whalen, 278 Mont. at 304, 925 P.2d. at 468-469. We concluded that allowing pro bono attorneys to recover fees would promote equal access to justice as it would encourage such attorneys to assist indigent clients. Whalen, 278 Mont. at 304, 925 P.2d at 468-69. However, at no point in Whalen did we conclude that a plaintiffs interests should be preferred over that of a defendant’s. Thus, Whalen does not support the argument that the Tripp standard should be extended to the MRLTA. If anything, Whalen would support the opposite conclusion, as we allowed a “prevailing party,” that had not paid for his own counsel, to recover attorney fees under § 70-24-442, MCA. Therefore, we do not extend the Tripp standard, for a successful defendant to collect attorney fees under the Montana Consumer Protection Act, to § 70-24-442, MCA, of the Montana Residential Landlord and Tenant Act.
¶12 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER and MORRIS concur.
This is an “intermediate” standard, as it falls between a “bad faith” and a “prevailing party” standard. Tripp, ¶ 33.
|
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Kelly Worthan (Worthan) appeals the judgment of conviction for two counts of sexual intercourse without consent, two counts of incest, and one count of tampering with a witness or informant entered in the Twenty-First Judicial District Court, Ravalli County. We affirm.
¶2 We address the following issues on appeal:
¶3 Did the defendant’s trial counsel render ineffective assistance of counsel, depriving him of a fair trial?
¶4 Did the District Court abuse its discretion when it denied counsel’s motions to withdraw and to appoint new counsel?
BACKGROUND
¶5 Worthan was charged by amended information filed February 10, 2004, with two counts of sexual intercourse without consent, two counts of incest, and one count of tampering with a witness or informant.
¶6 On March 22, 2004, Worthan’s appointed counsel, Kelli Sather (Sather), made a motion to withdraw from her representation of Worthan and to appoint new counsel. Sather had previously represented Worthan in a related civil matter, and it was her understanding that Worthan was planning to appeal the court’s decision therein, making a claim of “ineffective assistance of counsel” relating to her representation. Accordingly, Sather argued that by remaining Worthan’s counsel she would be in violation of Rule 1.7(b), M.R.Prof.Cond., relating to conflicts of interest between lawyers and clients.
¶7 The District Court held a hearing on the motion on April 1, 2004. The District Court pointed out that ineffective assistance was a criminal standard, not a civil standard, and that the Rules of Professional Conduct had changed, negating Sather’s argument under Rule 1.7(b). Sather nevertheless maintained that Worthan’s potential claim against her, whether ineffective assistance or malpractice, created a conflict in her representation of him in the criminal case. Sather also asserted that Worthan had sought advice from other attorneys and that she and Worthan had difficulty communicating. In addition, Worthan told the District Court that he found it difficult to contact Sather and that she did not keep him adequately informed of the progress of the case. The District Court concluded that Worthan’s complaints were “simple office management concerns” and that Sather’s representation was competent, despite her misgivings:
I’m only interested in, if I appoint an attorney, ensuring that attorney stays on the case unless I’m hearing there’s been a complete breakdown in communication.
And I have to hear more than the magic words complete breakdown in communication. I have to see substantively that the work is not getting done, and in this file the work is getting done.
The motion was denied.
¶8 During a hearing on May 26,2004, to consider various motions by the State, the foster mother to Worthan’s daughters testified that Sather had improperly questioned one of the children during an examination by the defense’s expert witness. Sather briefly broached the issue of withdrawing as counsel at a hearing on May 27, 2004, but she did not pursue a definitive ruling from the District Court. On June 7,2004, Sather filed a second motion to withdraw and for appointment of new counsel. Sather denied the foster mother’s allegation, but she asserted in her motion that she was now a necessary witness at trial and could not continue to represent Worthan without violating Rule 3.7(a), M.R.Prof.Cond., prohibiting lawyers from advocating at trials in which they are likely to be necessary witnesses unless certain exceptions apply. In its opinion and order dated June 9, 2004, the District Court determined that Sather’s assertions that she was a necessary witness at trial and that her withdrawal would work no substantial hardship against Worthan-whose trial was scheduled for June 14, 2004-were unsubstantiated. The District Court stated that it was unable to evaluate whether there was merit to Sather’s speculation that she would be a necessary witness at trial, and it noted that Sather failed to address why she delayed filing the motion until a mere five days before trial. The District Court also stated that this may be a situation where the general prohibition on an attorney for the defendant testifying at trial is outweighed by the potential detriment to the client should the attorney be replaced so close to trial. Ultimately, the District Court denied the motion but said it would consider appointing co-counsel, if Worthan were to request it. Worthan did not file a motion to appoint co-counsel, nor did he request a continuance of the trial. No evidence was admitted at trial regarding the incident other than the child’s testimony that she could not remember whether Sather had questioned her during the examination.
¶9 Prior to trial, the District Court denied a motion by the State requesting that evidence of other crimes, wrongs, or acts be admissible. During cross-examination at trial, however, Sather had the following exchange with Shelly Verwolf, a community social worker supervisor with the Department of Public Health and Human Services, Child and Family Services Division:
Q. [by Ms. Sather] Okay. You stated you received the central intake report out of Helena on April 25th, 2003; correct?
A. [by Ms. Verwolf] Uh-huh.
Q. So, were there any other reports made before April 25?
A. Yes, there was. We had received a report in March of 2003 alleging that Kelly Worthan-
Q. Okay. I just wanted to know if there was another report.
After an in-chambers conference and ruling, the State was able to ask this follow-up question:
Q. [by Mr. Fulbright, counsel for the State] Was that earlier report to central intake in March of 2003 an allegation that the defendant was involved in a separate or unrelated matter of sexual abuse?
A. [by Ms. Verwolf] Yes, it was.
¶10 On the afternoon of the second day of trial, Sather cross-examined Dr. Ruggiero, the children’s therapist. Sather had scheduled Dr. Vernon Whitley to testify that day concerning his physical examinations of the children because he would be unavailable later. However, Sather chose to continue her cross-examination rather than call Dr. Whitley to the stand. As a result, Dr. Whitley did not testify, but his reports were admitted into evidence by stipulation.
¶11 During the defense case-in-chief, Sather called David Stube (Stube) as an expert witness to criticize the therapy of the children and to testify about the children’s suggestibility. However, during voir dire, doubt was raised about Stube’s credentials and qualifications. Specifically, the State questioned whether Stube’s doctoral degree from Columbia Pacific University was valid in light of a court order finding that the school was operating illegally prior to its issuance of a degree to Stube. Also, Stube admitted to misrepresenting to a mental health center where he had been employed that he had a master’s degree. Stube later reimbursed the mental health center for refunds it made to clients who were improperly billed as a result of his misrepresentation. Additionally, though Stube is a licensed clinical counselor, the State argued that he was not qualified to criticize the work of the licensed psychologists who had testified for the State. Ultimately, the District Court disqualified Stube as a witness.
¶12 The jury returned a verdict of guilty on all counts, and Worthan was sentenced to a total of 130 years imprisonment with sixty years suspended. Worthan appeals.
STANDARD OF REVIEW
¶13 To prevail on a claim of ineffective assistance of counsel, a defendant must show that his “counsel’s performance fell below an objective standard of reasonableness” and he must demonstrate prejudice, i.e., “the existence of a reasonable probability that the result of the proceeding would have been different absent counsel’s unprofessional errors.” State v. Harris, 2001 MT 231, ¶¶ 18-19, 306 Mont. 525, ¶¶ 18-19, 36 P.3d 372, ¶¶ 18-19 (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
¶14 In addition,
The trial record must adequately document a challenged act or omission of defense counsel for a defendant to raise an ineffective assistance claim on appeal. In addition to documenting the error, the record available to this Court on appeal must afford sufficient understanding of the reasons for counsel’s act or omission to answer the threshold question of whether the alleged error expresses a trial strategy or tactical decision. If the record does not supply the reason for counsel’s act or omission, the claim must be raised by petition for post-conviction relief.
Harris, ¶ 21 (citations omitted).
¶15 “It is within the sound discretion of the district court to rule on requests for substitution of appointed counsel, and absent an abuse of discretion, we will not overrule such a ruling.” State v. Gallagher, 2001 MT 39, ¶ 4, 304 Mont. 215, ¶ 4, 19 P.3d 817, ¶ 4. “In evaluating discretionary rulings, this Court considers whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” Gallagher, ¶ 4 (quotation marks omitted).
DISCUSSION
¶16 Did the defendant’s trial counsel render ineffective assistance of counsel, depriving him of a fair trial?
¶17 Worthan asserts several grounds for concluding that Sather provided ineffective assistance of counsel. Worthan argues that Sather’s failure to call Dr. Whitley to the stand, her failure to discover the deficiencies in Stube’s qualifications as an expert, her elicitation of Verwolf s testimony regarding another report of sexual abuse, and her failure to investigate a list of potential witnesses that Worthan had provided her constitute, individually and collectively, ineffective assistance.
¶18 The State argues that Sather’s failure to discover Stube’s questionable qualifications was not objectively unreasonable because Stube had testified in court approximately fifty times in the previous twenty-one years, had held himself out as a “Ph.D.,” and, in the words of the District Court at a post-trial hearing, was “facile and artful in holding out his qualifications to be more than they actually were.” However, “[o]nly when the record will fully explain why counsel took, or failed to take, action in providing a defense for the accused may this Court review the matter on direct appeal.” State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, ¶ 20, 30 P.3d 340, ¶ 20. Here, there is no record of Sather’s decision-making process relating to offering Stube as an expert witness. Accordingly, we conclude that the record is insufficient to evaluate Sather’s reasonableness in calling Stube as a witness, and the matter is therefore more appropriate for consideration in a petition for postconviction relief.
¶19 Likewise, the “record is insufficient to determine whether counsel’s performance fell below an objectively reasonable standard,” State v. Grixti, 2005 MT 296, ¶ 27, 329 Mont. 330, ¶ 27, 124 P.3d 177, ¶ 27, regarding Sather’s decision not to call Dr. Whitley to the stand and Sather’s alleged failure to investigate witnesses. Worthan cites to no portion of the record that indicates why Sather did not call Dr. Whitley to the stand or whether (or why) she failed to investigate Worthan’s list of potential witnesses. Therefore, we again conclude that the matter is more appropriate for consideration in a petition for postconviction relief. See White, ¶ 20.
¶20 The State also contends that Sather effectively mitigated the possible harm that her “opening of the door” to evidence of prior reports of sexual abuse may have had. In a conference out of the jury’s presence, after argument by the parties, the District Court ruled that the State should not be able to explore the content of the previous report of sexual abuse any further than to ask whether it involved a separate or unrelated matter. During the same conference, Sather gave her tactical reason for eliciting the testimony from Verwolf: “I wanted to get in that Melissa Worthan [the defendant’s wife] had gone in and made a report on the 24th before this report even came in on the 25th.”
¶21 “Counsel’s trial tactics and strategic decisions cannot be the basis upon which to find ineffective assistance of counsel.” Grixti, ¶ 25. It is clear from the record that the testimony Sather educed from Verwolf was the result of a considered tactical decision. Accordingly, we conclude that Sather did not render ineffective assistance by drawing out this testimony.
¶22 Did the District Court abuse its discretion when it denied counsel’s motions to withdraw and to appoint new counsel?
¶23 “A defendant’s right to assistance of counsel at public expense extends through an original appeal of right, but the accused does not have the right to counsel of his or her choice.” State v. Zackuse (1991), 250 Mont. 385, 385, 833 P.2d 142, 142. “If the trial court determines that the defendant and his counsel have a conflict so great that it results in a total lack of communication or if counsel is failing to render effective assistance, new counsel should be appointed.”Zackuse, 250 Mont. at 385, 833 P.2d at 142.
¶24 Worthan argues that the District Court allowed concerns of judicial administration to outweigh “the necessity of trust between client and attorney.” Worthan contends that the denial of the motions to withdraw were “comparable to a denial of a motion to continue trial” because “disruption of the Court’s schedule seemed paramount in the Court’s decisions to deny trial counsel’s requests to withdraw.” Relying on State v. Garcia, 2003 MT 211, 317 Mont. 73, 75 P.3d 313 (reversing the trial court’s denial of defendant’s motion to continue trial so the defendant’s newly retained private counsel that replaced appointed counsel ten days prior to trial would have time to prepare), Worthan argues that the expeditious administration of justice is not cause to deny the motions of counsel to withdraw. Worthan asserts, “There is simply no other reason the Court denied the motion of trial counsel to withdraw than to appease the desire to keep the Court’s calendar in order.” Consequently, Worthan argues that the District Court abused its discretion by denying the motions.
¶25 In Garcia, our reversal of the trial court’s ruling was predicated upon the principles that a defendant has the right to decide who best can conduct the case and that this “right to counsel also means that counsel shall be given a reasonable time to prepare before trial.” Garcia, ¶ 13 (quoting State v. Blakeslee (1957), 131 Mont. 47, 54, 306 P.2d 1103, 1106). “Failure to respect these rights constitutes a denial of due process.” Garcia, ¶ 13. However, Garcia drew a distinction between “those individuals with the means to secure private representation,” Garcia, ¶ 13, and defendants who have counsel appointed: ‘Within the context of appointed counsel, a defendant may not insist upon appointment of specific counsel or demand dismissal or substitution of counsel so long as appointed counsel renders effective assistance.” Garcia, ¶ 13.
¶26 Despite his statement to the District Court that he had difficulty communicating with Sather, Worthan has failed to demonstrate that there was a “total lack of communication,” Zackuse, 250 Mont. at 385, 833 P.2d at 142, with his trial counsel at the time the motions were made. At the hearing on the first motion to withdraw, the District Court specifically noted that Sather was “performing an adequate job here and ... surpassing the minimum professional standards for representation of Mr. Worthan,” and that “the motions that Ms. Sather has filed have been well-briefed.” In addition, Worthan, speaking directly with the judge, asserted that Sather had not subpoenaed the witnesses he had requested in the civil case in which she had represented him, that it was difficult to confer with Sather due to frequent cancellations of appointments, and that he had belatedly received copies of the motions filed in the criminal case. The District Court interpreted these complaints as “part of the constant stresses and strains of a busy lawyer running a busy law office,” and we are not persuaded by Worthan that the District Court’s assessment of Sather’s representation was incorrect.
¶27 The second motion to withdraw, rather than addressing client-attorney communication, focused on the possible conflict between Worthan and Sather that could have occurred had Sather been called to testify. However, as the District Court discussed in its ruling, Sather was unable to substantiate that she was likely to be a necessary witness at trial, and she was unable to demonstrate that her disqualification at such a late date would not work substantial hardship on her client. See Rule 3.7, M.R.Prof.Cond. Moreover, the District Court suggested that Worthan could request the appointment of co-counsel as means of alleviating the uncertainties surrounding the potential for Sather to become a witness at trial. As it happened, Worthan suffered no prejudice from the ruling because Sather did not testify at trial. Given the circumstances, we cannot conclude that the District Court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Further, we deem unpersuasive Worthan’s argument that Sather’s second motion to withdraw was equivalent to a motion to continue, and we do not construe it as such. Therefore, we conclude that the District Court did not abuse its discretion by denying counsel’s motions to withdraw.
CONCLUSION
¶28 Worthan’s arguments regarding the effectiveness of his counsel’s assistance in relation to the decisions whether to call Dr. Whitley and Stube as witnesses and whether to investigate his list of potential witnesses are best addressed in a petition for postconviction relief and not on direct appeal. With respect to the evidence elicited by Sather of a previous report of sexual abuse, we conclude that counsel did not provide ineffective assistance.
¶29 The District Court did not abuse its discretion by denying counsel's motions to withdraw and to appoint new counsel.
¶30 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES WARNER, COTTER and LEAPHART concur.
This statement of the law was not entirely correct. In In re A.S., 2004 MT 62, 320 Mont. 268, 87 P.3d 408 (decided March 16, 2004), we acknowledged that in cases involving the termination of parental rights parents have a right to effective assistance of counsel. Though the label is the same, the standards for effective assistance of counsel differ between criminal cases and termination of parental rights cases.
In. support of his argument, Worthan has submitted in the appendix to his brief Exhibits B and D containing information not on the District Court record. The State has moved to strike the exhibits based on Rule 9(a), M.R.App.P., which provides that the “original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases.” The motion is well taken, and we do not consider Exhibits B and D.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Jack Jenkins appeals an Order of the District Court for the Twenty-First Judicial District, Ravalli County, denying his Petition for Writ of Certiorari or Supervisory Control. We affirm.
¶2 We address the following issue on appeal: Did the District Court abuse its discretion when it denied Jenkins’ Petition for Writ of Certiorari or Supervisory Control?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The District Court entered the following statement of facts in its May 24, 2005 Opinion and Order denying Jenkins’ petition.
It appears undisputed that pursuant to a number of Darby City Court judgments in 1997, 1998 and 2002, Mr. Jenkins was assessed fines totaling $2,875.00 and was ordered to complete the ACT program and pay the cost thereof in the sum of $200.00. The fines and fees were to be paid in full by March 11, 2003. Jenkins filed an appeal of his convictions to this Court on September 11, 2002, but subsequently moved to dismiss his appeal. The appeal was dismissed by this Court and the case remanded to Darby City Court on October 23, 2002. On November 18, 2002, Jenkins was arrested for Felony DUI and other charges. He ultimately pled guilty to that charge and on June 4, 2003 was sentenced to thirteen (13) months in State custody, plus five (5) years as a persistent felony offender and five (5) years probation.
On July 30,2003, Jenkins was sentenced to the Montana State Prison. He has a parole eligibility date of September 11,2005, and a discharge date of June 16, 2009.
On September 24,2003, the Darby City Court issued a “Fail to Comply Warrant” directing that Jenkins be arrested and brought before the Darby City Court to show cause why he should not be held in contempt of court for failure to pay the assessed fines and fees.
Jenkins has applied for a pre-release center placement, but the Montana Department of Corrections refused consideration of a pre-release placement due to the outstanding warrant from Darby City Court.
According to the pre-sentence investigation report dated June 3, 2003, in Cause No. DC-02-170, Jenkins is in good health and has a work history including employment as a logger, and various other jobs in Montana, Washington, Nevada and Idaho.
Jenkins filed a “Motion to Dismiss and Request to Enter into Payment Agreement” with the Darby City Court, by which he sought to have the Court recall/dismiss the warrant in exchange for a time pay agreement which would allow him to qualify for a pre-release placement. The City Attorney opposed the motion and the Court entered its order denying the motion on January 24, 2005.
¶4 As the State points out in its brief on appeal, many of the facts stated above are not substantiated in the record now before this Court because they come from other sources such as Jenkins’ Department of Corrections (DOC) file. However, the State further notes that the Statement of Facts in Jenkins’ opening brief indicates that he does not disagree with the District Court’s findings.
DISCUSSION
¶5 Did the District Court abuse its discretion when it denied Jenkins’ Petition for Writ of Certiorari or Supervisory Control ?
¶6 A Writ of Certiorari, or a Writ of Review, may be granted by this Court or a district court or any judge of those courts “when a lower tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of the tribunal, board, or officer and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy.” Section 27-25-102, MCA. Moreover, this Court will not overturn a district court’s denial of a writ unless an abuse of discretion is shown. Schaefer v. Egeland, 2004 MT 199, ¶ 11, 322 Mont. 274, ¶ 11, 95 P.3d 724, ¶ 11 (citing Shiplet v. Egeland, 2001 MT 21, ¶ 5, 304 Mont. 141, ¶ 5, 18 P.3d 1001, ¶ 5). “An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason.” Schaefer, ¶ 11 (citing Bailey v. Beartooth Communications Co., 2004 MT 128, ¶ 10, 321 Mont. 305, ¶ 10, 92 P.3d 1, ¶ 10).
¶7 Jenkins claims the Darby City Court exceeded its jurisdiction by denying him due process and speedy trial rights and unfairly denying his ability to qualify for community corrections programs while in the custody of the Department of Corrections. The State argues that the fact that the City Court denied Jenkins’ motion does not mean that the City Court Judge exceeded her jurisdiction, which is the standard for certiorari.
¶8 We agree with the District Court’s conclusion that while the existence of a warrant may place Jenkins in an escape-risk classification that impacts his placement within the DOC, Jenkins has not shown that the Darby City Court is -under some legal obligation to quash an otherwise valid warrant merely to facilitate Jenkins’ placement in a pre-release center or other community corrections program.
¶9 Moreover, Jenkins has not provided any authority to the effect that the City Court Judge exceeded her jurisdiction by denying his motion to quash the warrant. Although Jenkins cites to several decisions of this Court, none of those cases stand for the proposition that a city court judge exceeds her jurisdiction when she refuses, as a matter of discretion, to quash an outstanding warrant so as to render the petitioner eligible for alternative placement within the correctional system.
¶10 Accordingly, we hold that the District Court did not abuse its discretion when it denied Jenkins’ Petition for Writ of Certiorari or Supervisory Control.
¶11 Affirmed.
JUSTICES LEAPHART, RICE and COTTER concur.
|
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] |
JUSTICE WARNER
delivered the Opinion of the Court.
¶1 James C. Lohmeier, and the other named plaintiffs and appellants, referred to as Appellants, appeal from an order of the Eighteenth Judicial District Court, Gallatin County, granting a Rule 12(c) motion to dismiss the consolidated complaints. Gallatin County and the Gallatin County Election Administrator are referred to together as the County. We affirm.
¶2 Appellants make numerous arguments why the District Court erred in dismissing their complaints. However, because we determine that Appellants do not have standing to bring these consolidated lawsuits, it is unnecessary to address such arguments.
¶3 We restate the dispositive issue on appeal as: Did the District Court err by dismissing Appellants’ case for lack of general standing?
¶4 In August 2002, certain landowners in the Four Corners area of Gallatin County filed a Petition (Petition) with the Gallatin County Commission (Commission) to organize and incorporate a county water and sewer district to be named the Four Corners Water and Sewer District (District). The Commission held a hearing on this Petition on December 17, 2002, at which certain area residents, including some Appellants, requested that the Commission expand the District’s proposed boundaries to include them. The Commission denied this request.
¶5 On December 20, 2002, the Commission adopted a resolution approving the Petition and creating the District with the boundaries as stated in the Petition. On January 21, 2003, Appellants filed this suit, challenging the Commission’s creation of the District without enlarging its boundaries to include them. Appellants also applied for a preliminary injunction to stop the election process needed to establish the District. The District Court held a hearing and denied Appellants’ application for a preliminary injunction on April 15,2003.
¶6 The election for the creation of the District was held. Eighteen ballots were mailed to potential voters. Eleven voters both registered to vote in and residing within the District received ballots. Seven owners of property within the District, who were not registered to vote in the District, also received ballots. The County undertook a canvass of the votes on April 18, 2003. Four out of the eleven voters living in and registered in the District, and all seven of the voters who owned property in the District but did not live there, voted in favor of forming the District. On April 29, 2003, the County certified that the votes in favor of creating the District were sufficient. The County’s certification of the vote was sent to the Montana Secretary of State, who returned a certificate to the County certifying the incorporation of the District.
¶7 Appellants then filed another complaint challenging the election and certification process. The District Court granted Gallatin County’s request to consolidate the two suits. Gallatin County filed a Rule 12(c) Motion to Dismiss Consolidated Actions, which the District Court granted on October 25, 2004. Appellants appeal the District Court’s granting of the Motion to dismiss the consolidated actions. .
¶8 In considering a motion for judgment on the pleadings pursuant to Rule 12(c), M.R.Civ.P., the movant must establish that no material issue of fact remains and that the movant is entitled to judgment as a matter of law. Paulson v. Flathead Conservation Dist., 2004 MT 136, ¶ 17, 321 Mont. 364, ¶ 17, 91 P.3d 569, ¶ 17. “The pleadings are to be construed in the light most favorable to the nonmoving party, whose allegations are taken as true.” Paulson, ¶ 17. Because a motion for judgment on the pleadings is decided as a matter of law, we apply our standard of review for conclusions of law and determine whether the District Court’s decision is correct. Paulson, ¶ 17.
¶9 Appellants argue that because they are County taxpayers and voters they have standing to challenge the creation of the District. They say that their alleged injuries are particular to those who would benefit by inclusion in the District, because the economic and environmental impacts of the District would fall more heavily upon them. Appellants also allege infringement of their fundamental right to a clean and healthful environment because the District, with its current boundaries, would allow existing pollution sources to continue unabated.
¶10 Two criteria must be satisfied to establish standing to sue: the complaining party must (1) clearly allege past, present or threatened injury to a property or a civil right, and (2) allege an injury that is distinguishable from the injury to the public generally, though the injury need not be exclusive to the complaining party.
Fleenor v. Darby School Dist., 2006 MT 31, ¶ 9, 331 Mont. 124, ¶ 9, 128 P.3d 1048, ¶ 9; Geil v. Missoula Irrigation Dist., 2002 MT 269, ¶ 28, 312 Mont. 320, ¶ 28, 59 P.3d 398, ¶ 28. Persons who fail to allege any personal interest or injury, beyond that common interest of all citizens and taxpayers, lack standing. Fleenor, ¶ 9; Flesh v. Bd. of Tr. of J. Sch. Dist. 2 (1990), 241 Mont. 158, 162, 786 P.2d 4, 7. The challenged action must result in a “concrete adverseness” personal to the party staking a claim in the outcome. Fleenor, ¶ 9; Bryan v. Yellowstone County Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 20, 312 Mont. 257, ¶ 20, 60 P.3d 381, ¶ 20.
¶11 In cases concerning annexation to a municipality, this Court has held that one who does not reside or own land in the area affected does not have standing to challenge a proposed annexation as they do not have to pay increased taxes for increased services. Knudsen v. Ereaux (1996), 275 Mont. 146, 150-51, 911 P.2d 835, 838 (citing ODonnell Fire Serv. and Equip. v. City of Billings (1985), 219 Mont. 317, 320-21, 711 P.2d 822, 824). Appellants neither reside in, nor own property located in, the District. They will not have to pay any of the costs associated with the creation of or operation of the District. They suffer no economic detriment that is different from that of the public generally. Thus, they do not have standing to challenge the creation of the District.
¶12 Appellants’ status as County taxpayers and voters does not give them standing. Section 7-13-2212, MCA, allows only those residing in the proposed district, or owning taxable real property situated within the proposed district, to vote in an election to determine whether to create the new district. Considering the status of persons who are not entitled to vote for a proposal, the United States Supreme Court faced a similar argument as that of Appellants in United States v. Hays (1995), 515 U.S. 737, 115 S.Ct. 2431, 132 L.Ed.2d 635. In Hays, appellees sought to challenge the constitutionality of a redistricting plan because of alleged racial gerrymandering. The U. S. Supreme Court explained that voters alleging racial gerrymandering who do not live in the area in question cannot satisfy the standing requirement, because they could only assert a generalized grievance. Hays, 515 U.S. at 745, 115 S.Ct. at 2436, 132 L.Ed.2d at 643. Likewise, Appellants here, who do not live in, own property in, or have the right to vote in the election for creation of the District, can only assert a generalized grievance; the same as other voters not in the District. Thus, they do not have standing to challenge the creation of the District.
¶13 Appellants go on to argue that their fundamental right to a clean and healthful environment, provided by Article II, Section 3, of the Montana Constitution, will be infringed upon by the creation of the District, and this gives them standing to bring these actions challenging the creation of the District.
¶14 Appellants’ allegations fail to establish a violation of their fundamental right to a clean and healthful environment. The District will actually enhance the environment. In essence, Appellants only allege that the District does not protect the environment as much as it would if their property was included. While such is possible, this does not confer standing on Appellants to challenge the creation of the District.
¶15 The cases cited by Appellants are distinguishable from the present case. In both Missoula City-County Air Pollution Control Bd. v. Bd. of Envtl. Review (1997), 282 Mont. 255, 937 P.2d 463, and Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 1999 MT 248, 296 Mont. 207, 988 P.2d 1236, possible increases in the amount of pollution were at issue. In the present case, there is no increase in the amount of pollution alleged. The allegations of Appellants’ complaint do not establish a violation of their right to a clean and healthful environment sufficient to give them standing to maintain these suits.
¶16 Standing is a threshold jurisdictional question, especially in cases where a statutory or constitutional violation is claimed to have occurred. Fleenor, ¶ 7. Appellants have failed to allege facts which establish that the creation of the District has caused, or will cause, an injury that is personal to them, as distinguished from the community in general. The judgment of the District Court granting Gallatin County’s Rule 12(c) motion to dismiss is affirmed.
JUSTICES COTTER, LEAPHART, RICE and MORRIS concur.
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Richard Alfred Weitzel (Weitzel) appeals his conviction in the First Judicial District Court, Lewis and Clark County, for driving with an alcohol concentration of .10 or more (DUI Per Se) under § 61-8-406(a), MCA (2001). We affirm.
¶2 Weitzel claims that his conviction of DUI Per Se must be reversed because the City failed to present sufficient proof that his blood alcohol concentration (BAC) was .10 or more while driving. He argues that the test administered to determine his BAC, as defined by § 61-8-407, MCA, should not have been admitted into evidence, both because it was unreliable and because it was administered fifty-one minutes after he stopped driving.
¶3 On the evening of October 18, 2002, Helena Police Officer Cory Livesay (Livesay) observed two motorcycles that he thought were exceeding the speed limit. Livesay stopped Weitzel, smelled the odor of an alcoholic beverage, and observed Weitzel’s eyes as bloodshot and glossy. Weitzel initially denied drinking, but later admitted consuming one beer. Livesay administered field sobriety tests, and Weitzel unsatisfactorily performed the one-leg stand and the walk and turn tests. A portable breath test administered at the scene also detected alcohol. Livesay arrested Weitzel for driving under the influence (DUI).
¶4 At the detention center, Livesay waited fifteen minutes before asking Weitzel to submit to a breath test. The test, using an Intoxilyzer 5000 machine (Intoxilyzer) regularly used by the City for such purpose, was administered fifty-one minutes after Weitzel was stopped. The test indicated that Weitzel’s BAC was .129. Weitzel was charged with DUI, DUI Per Se, and Speeding.
¶5 Following his conviction in Helena City Court of DUI Per Se and Speeding, Weitzel appealed to the District Court. A District Court jury again convicted Weitzel of DUI Per Se and Speeding. At the trial, Officer Debora Drynan (Drynan) testified on cross-examination that the Intoxilyzer assumes a breath temperature of 34° Celsius, and she knew neither Weitzel’s breath nor his body temperature at the time he was tested. Drynan also agreed that a person’s BAC will rise for a period after drinking, the amount of food in a person’s stomach can affect alcohol absorption, and she did not know what or when Weitzel ate prior to the stop. She also testified that, once alcohol is introduced into the system, approximately .015 grams of alcohol per 210 liters of breath will be metabolized by the body every hour.
¶6 Livesay testified that nothing in terms of the environment of the test or Weitzel’s condition affected the test results. According to Livesay, a BAC of. 129 was consistent with his observations of Weitzel. He also said fifty-one minutes is an average time for processing. Livesay also testified that the rate at which a person metabolizes alcohol can depend on gender, body size, and whether the person ate. Livesay did not know when Weitzel last ate before he was stopped. Finally, Livesay agreed that, at the time of the test, he did not know whether Weitzel’s BAC was rising or falling.
¶7 In reviewing a criminal matter, this Court reviews a question concerning the sufficiency of the evidence to determine whether, after reviewing 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. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, ¶ 7, 119 P.3d 74, ¶ 7.
¶8 Weitzel argues that the City failed to prove that his BAC was . 10 or greater while he was driving. He first notes that the test occurred fifty-one minutes after the stop, and the State made no attempt to extrapolate this result to his BAC while he was driving fifty-one minutes earlier. Weitzel posits that it is unknown whether his BAC was rising or falling at the time of the test, and his BAC may have been lower while driving.
¶9 Weitzel goes on to claim that the BAC test result should not have been admitted into evidence because of the 10% margin of error allowed in the weekly calibration test of the Intoxilyzer. Also, Weitzel claims the evidence of the Intoxilyzer test should be excluded because the machine assumes a breath temperature of 34° Celsius, and his breath temperature was not measured.
¶10 Additionally, Weitzel complains that the Intoxilyzer assumes a blood/breath ratio of 2100 to 1, and this ratio varies between people. Finally, Weitzel argues that the Intoxalyzer evidence should have been excluded because the rate at which a person metabolizes alcohol depends on multiple factors including eating, and the State introduced no information regarding Weitzel’s eating.
¶11 Section 61-8-406(1)(a), MCA (2001), provided as follows:
(1) It is unlawful and punishable as provided in 61-8-442, 61-8-722, 61-8-723, and 61-8-731 through 61-8-734 for any person to drive or be in actual physical control of:
(a) a noncommercial vehicle upon the ways of this state open to the public while the person’s alcohol concentration, as shown by analysis of the person’s blood, breath, or urine, is 0.10 or more.
¶12 The current statute is identical, except the unlawful BAC is now 0.08. See § 61-8-406(1)(a), MCA (2005).
¶13 We recently addressed the question of whether the results of an Intoxalyzer test of a person’s breath administered 50 minutes after the person was arrested constituted evidence of a person’s BAC at the time he was driving. State v. McGowan, 2006 MT 163, ¶ 6, 332 Mont. 490, ¶ 6, 139 P.3d 841, ¶ 6. In McGowan, we agreed with the courts of those States which have determined that it was not necessary to prove through retrograde extrapolation evidence what a person’s BAC was at the time he was driving. McGowan, ¶ 21.
¶14 The legislature explicitly allows for the admissibility of breath tests in DUI Per Se proceedings. Section 61-8-404(1)(a), MCA. In this case, the State was entitled to introduce the results of the Intoxalyzer test administered fifty-one minutes later as evidence that Weitzel was driving with a BAC of .10 or more. Weitzel was also entitled to introduce evidence of the machine’s weaknesses, which he did through cross-examination of the State’s witnesses. He was thus able to argue that there was a reasonable doubt as to his guilt, which he did. However, we conclude that the points raised by Weitzel go to the weight of the test evidence, not the admissibility of the test results. See State v. Damon, 2005 MT 218, ¶ 24, 328 Mont. 276, ¶ 24, 119 P.3d 1194, ¶ 24 (questions raised by defendant of whether specific field conditions or protocols rendered results of Aleo-Sensor III unreliable went to weight, rather than admissibility, of evidence).
¶15 Section 61-8-406(1)(a), MCA, requires an analysis of a person’s blood, breath, or urine before the prosecution can establish a violation of the statute. In this instance, the City presented additional evidence tending to verify the test results. In its case against Weitzel the City presented the circumstantial evidence that Livesay smelled the odor of an alcoholic beverage when he stopped Weitzel, he observed Weitzel’s eyes as bloodshot and glossy, and he observed clues indicating alcohol intoxication when Weitzel failed to satisfactorily perform field sobriety tests. Further, Weitzel admitted to having ingested some alcohol, and a portable breath test also detected the presence of alcohol in his breath. Officer Livesay testified without objection that a BAC of .129 was consistent with his observations of Weitzel.
¶16 Considering the results of the Intoxilyzer breath test, along with the other evidence, we conclude that the City presented sufficient evidence to convict Weitzel of DUI Per Se.
¶17 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, MORRIS and RICE concur.
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JUSTICE RICE
delivered the Opinion of the Court.
¶ 1 Appellant Cynthia Boulton (Boulton) appeals from the order of the Eighth Judicial District Court revoking her two-year deferred sentence, and sentencing her to the Department of Corrections for three years with one year suspended. We affirm.
¶2 We consider the following issues on appeal:
¶3 (1) Do §§ 46-14-311 and -312, MCA (2001), addressing mental disease and defect in sentencing, apply to revocation proceedings?
¶4 (2) Did the District Court err in revoking Boulton’s deferred sentence?
BACKGROUND
¶5 Boulton was charged with fraudulently obtaining dangerous drugs in November of 1999. Thereafter, Boulton pled guilty to the charge and received a two-year deferred sentence. As conditions of her deferred sentence, the court required that Boulton be placed under the supervision of the adult probation and parole bureau, not use alcohol, complete 100 hours of community service, and pay $35.00 in fines to the District Court.
¶6 Boulton failed to satisfy the conditions of her probation. After a court-approved move to Spokane, Washington, she did not meet her probation officer on a monthly basis, did not complete, or even begin, her community service work, and failed to pay her fine. Consequently, the Cascade County Attorney petitioned the District Court to revoke Boulton’s deferred sentence on May 15, 2003, and a bench warrant issued for Boulton’s arrest. The Kalispell Police Department arrested an intoxicated Boulton outside a casino on May 26, 2004.
¶7 Following a defense motion for a confidential mental examination, which was granted, the District Court held an evidentiary and dispositional hearing to consider the petition to revoke Boulton’s deferred sentence. Boulton admitted to several violations, but denied others. At the hearing, the court heard evidence from Boulton’s psychiatrist, Dr. Michael Scolatti, regarding Boulton’s mental condition. Scolatti stated that Boulton suffered from, among other things, bipolar disorder, borderline personality disorder, and posttraumatic stress disorder. As a result of these disorders, Scolatti recommended that Boulton be placed in a structured setting, and confirmed that the State’s proposal to place Boulton in Connection Corrections, followed by either ISP or pre-release, would meet her needs. Scolatti did not believe that Boulton’s mental disorders warranted placement in the state mental hospital.
¶8 At the hearing, and critical for our purpose today, Boulton argued that, pursuant to §§ 46-14-311 and -312, MCA (2001), she suffered from a mental disease and defect which rendered her unable to conform her behavior to the requirements of the law, thus requiring, despite her violations, continuation of her probationary sentence, with intensive supervision. The State disagreed, arguing that the plain language of the statutes made them inapplicable in revocation proceedings. After a spirited discussion, the District Court concluded that the statutes did not apply, but also noted that, in any event, Boulton was not suffering from a mental disease or defect affecting her ability to conform to the law. Thereafter, the court revoked Boulton’s deferred sentence, and sentenced her to a three-year commitment to the Department of Corrections with one year suspended.
¶9 Boulton appeals.
STANDARDS OF REVIEW
¶10 “The standard for revocation of probation is whether the judge is reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty.” State v. Averill, 2001 MT 161, ¶ 22, 306 Mont. 106, ¶ 22, 30 P.3d 1059, ¶ 22. We review a district court’s decision to revoke a deferred sentence to determine whether the court abused its discretion. State v. Welling, 2002 MT 308, ¶¶ 5, 8, 313 Mont. 67, ¶¶ 5, 8, 59 P.3d 1146, ¶¶ 5, 8. Finally, we a review a district court’s conclusions of law de novo, to determine whether they are correct. State v. Ray, 2003 MT 171, ¶ 34, 316 Mont. 354, ¶ 34, 71 P.3d 1247, ¶ 34.
DISCUSSION
1. Do §§ 46-14-311 and -312, MCA (2001), addressing mental disease and defect in sentencing, apply to revocation proceedings?
¶11 As she did in the District Court, Boulton asserts that her probation violations were the result of her mental illnesses. As such, she argues that her commitment to the Department of Corrections was inappropriate pursuant to §§ 46-14-311 and -312, MCA (2001). The State argues that these provisions do not apply to revocation proceedings, but, instead, apply only to the original sentencing for the convicted offense-in this case, fraudulently obtaining dangerous drugs. ¶12 When interpreting and applying a statute, the role of the courts is to “ascertain the intent of the Legislature.” Friends of the Wild Swan v. DNRC, 2005 MT 351, ¶ 13, 330 Mont. 186, ¶ 13, 127 P.3d 394, ¶ 13; citing McCormick v. Brevig, 2004 MT 179, ¶ 40, 322 Mont. 112, ¶ 40, 96 P.3d 697, ¶ 40. If possible, the intent of the Legislature is to be determined from the plain language of the statute. McCormick, ¶ 40. If the intent can be determined from the plain language of a statute, a court “may not go further and apply any other means of interpretation.” McCormick, ¶ 40.
¶13 Section 46-14-311, MCA (2001), reads as follows:
Consideration of mental disease or defect in sentencing. Whenever a defendant is convicted on a verdict of guilty or a plea of guilty or nolo contendere and claims that at the time of the commission of the offense of which convicted the defendant was suffering from a mental disease or defect that rendered the defendant unable to appreciate the criminality of the defendant’s behavior or to conform the defendant’s behavior to the requirements of law, the sentencing court shall consider any relevant evidence presented at the trial and shall require additional evidence as it considers necessary for the determination of the issue, including examination of the defendant and a report of the examination as provided in 46-14-202 and 46-14-206. [Emphasis added.]
Section 46-14-312, MCA (2001), reads in pertinent part:
Sentence to be imposed. (1) If the court finds that the defendant at the time of the commission of the offense of which the defendant was convicted did not suffer from a mental disease or defect as described in 46-14-311, the court shall sentence the defendant as provided in Title 46, chapter 18.
(2) If the court finds that the defendant at the time of the commission of the offense suffered from a mental disease or defect as described in 46-14-311, any mandatory minimum sentence prescribed by law for the offense need not apply and the court shall sentence the defendant to be committed to the custody of the director of the department of public health and human services.... The authority of the court with regard to sentencing is the same as authorized in Title 46, chapter 18, if the treatment of the individual and the protection of the public are provided for. [Emphasis added.]
¶14 An examination of these statutes’ plain language shows that they allow a defendant to assert at sentencing that, at the time the convicted offense was committed, he or she suffered from a mental disease or defect. Thus, upon a homicide conviction, the defendant may assert that he or she suffered from mental disease or defect at the time of the killing. Likewise, upon conviction for fraudulently obtaining dangerous drugs, the defendant may assert that the drugs were fraudulently obtained while he or she suffered from a mental disease or defect. The intent of those statutes is to allow the defendant to show that he is not culpable for the crime for which he has been convicted, and as a result, should be committed to DPHHS rather than receive a prison term. Importantly, these statutes do not mention revocation proceedings. Consistent therewith, the revocation statute, § 46-18-203, MCA (2001), does not mention the mental disease and defect statutes.
¶15 In addition to being inconsistent with the plain language of §§ 46-14-311, 46-14-312, and 46-18-203, MCA, Boulton’s argument is contrary to the nature of probation and the revocation process. Probation is an act of grace by a sentencing court, intended to give the offender a chance to rehabilitate outside the prison setting. See State v. Robinson (1980), 190 Mont. 145, 148, 619 P.2d 813, 814 (“[t]he District Court’s initial decision to place Robinson on probation was a decision to forego complete denial of liberty in favor of a period of restricted and conditional liberty in hopes that the defendant’s freedom would best serve the purposes of rehabilitation”); State v. Kern (1985), 212 Mont. 385, 388, 695 P.2d 1300, 1301; State v. Rogers (1989), 239 Mont. 327, 329, 779 P.2d 927, 929. As such, when a petition to revoke probation is before a district court, the facts presented “need not establish guilt beyond a reasonable doubt.”Robinson, 190 Mont. at 148, 619 P.2d at 815. In fact, the defendant’s mental state is not necessarily an issue when the court determines the existence of a probation violation. Averill, ¶¶ 24-26. Instead, the question in a revocation proceeding is “whether the purposes of rehabilitation are being achieved, and whether, by virtue of subsequent criminal conduct or evidence that the defendant’s behavior was not in compliance with the rules and objectives of his probation, the purposes of probation are best served by continued liberty or by incarceration.” Robinson, 190 Mont. at 148, 619 P.2d at 815; Averill, ¶ 25. As such, it is generally irrelevant whether a probation violation may have been committed while suffering a mental disease or defect; if the conditions of probation have been violated, probation can be revoked.
¶16 For these reasons, revocation proceedings are generally considered “civil” in nature-“the action to revoke his previously suspended sentence is not a criminal adjudication.” State v. Watts (1986), 221 Mont. 104, 106, 717 P.2d 24, 25. Indeed, the term “offense,” used in §§ 46-14-311, and -312, MCA (2001), by definition does not include probation violations. “Offense” is defined in Title 46 as “a violation of any penal statute of this state or any ordinance of its political subdivisions,” § 46-1-202(15), MCA (2001), and does not include a probation violation in this context, since conditions of a deferred or suspended sentence are not penal statutes or ordinances. See Watts, 221 Mont. at 107, 717 P.2d at 26 (“[c]learly the District Court can revoke the suspension of a sentence, without that revocation constituting punishment for a new offense”); see also State ex. rel. Great Falls Tribune v. District Court (1989), 238 Mont. 310, 316-17, 777 P.2d 345, 348-49. As such, the clear application of the mental disease statutes to criminal proceedings further undermines Boulton’s argument that those statutes apply in revocation proceedings.
¶17 These conclusions do not mean that evidence of mental disease or defect is always irrelevant and inadmissible in a revocation proceeding. Pursuant to § 46-18-203, MCA (2001), when presented with evidence that a defendant serving a deferred or suspended sentence has violated conditions of probation, a court may (a) continue the deferred sentence without change, or (b) “impose any sentence that might have been originally imposed.” See § 46-18-203(7), MCA (2001). Thus, by its plain language, the revocation statute contemplates that probation violations may not warrant sentence revocation or imposition of a prison sentence. A mental disease or defect may constitute a circumstance where fundamental fairness might lead a court to continue or re-impose a probationary sentence. Section 46-18-203(7), MCA (2001), provides significant discretion to the sentencing court, which would include the ability to order mental evaluations and consider the impact of a defendant’s mental condition. Thus, while the alternative sentencing procedures of §§ 46-14-311 and -312, MCA (2001), are not applicable in revocation proceedings, evidence of mental disease and defect can appropriately be considered by the revoking court.
¶18 From our review of the statutes, as well as the purposes of probation and revocation, we conclude that §§ 46-14-311 and -312, MCA (2001), do not apply in revocation proceedings. Therefore, we affirm the District Court’s ruling.
2. Did the District Court err in revoking Boulton’s deferred sentence?
¶19 As noted above, we review a district court’s decision to revoke a deferred sentence for abuse of discretion. Welling, ¶ 8. A court abuses its discretion when it “acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Citizen Advocates for a Livable Missoula v. City Council, 2006 MT 47, ¶ 18, 331 Mont. 269, ¶ 18, 130 P.3d 1259, ¶ 18; citing State v. Riggs, 2005 MT 124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18. Here, Boulton pleaded true to multiple probation violations, and the court concluded that the evidence of Boulton’s mental disorders did not warrant her placement in the state mental hospital. This conclusion was consistent with the testimony of Boulton’s psychiatrist. Our review of the record herein permits no conclusion that the District Court abused its discretion in revoking Boulton’s sentence.
¶20 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES WARNER, LEAPHART and MORRIS concur.
We note that although Boulton argues that §§ 46-14-311 and -312, MCA (2001), apply in a revocation setting, she ultimately sought a probationary sentence and ISP following revocation, a sentence inconsistent with § 46-14-312, MCA, which requires a court to commit an offender to the custody of the Department of Public Health and Human Services if it finds the offender’s acts result from mental disease or defect.
|
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Plaintiff Robert Guest filed his complaint in the District Court for the Fourth Judicial District, Missoula County, on September 23,2004. He alleged that during 2001, Defendant MarkMcLaverty, an attorney, was negligent in his representation of Guest and he sustained damages as a result. McLaverty filed a Rule 12(b)(6), M.R.Civ.P., motion to dismiss the complaint based on the statute of limitations found at § 27-2-206, MCA. The District Court granted McLaverty’s motion and Guest now appeals. We affirm.
¶2 We review de novo a district court’s ruling on a motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P. Hall v. State, 2006 MT 37, ¶ 10, 331 Mont. 171, ¶ 10, 130 P.3d 601, ¶ 10. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pled allegations in the complaint. Hall, ¶ 10. The complaint is construed in the light most favorable to the plaintiff. Hall, ¶ 10. We will affirm the district court’s dismissal only if we conclude that the plaintiff would not be entitled to relief based on any set of facts that could be proven to support the claim. Hall, ¶ 10. The determination of whether a complaint states a claim is a conclusion of law, and the district court’s conclusions of law are reviewed for correctness. Hall, ¶ 10.
¶3 McLaverty represented Guest by appointment as a public defender in connection with his charges of felony aggravated kidnapping and two counts of felony assault with a weapon, in Ravalli County. The representation commenced April 6, 2001. The last work McLaverty did for Guest was August 22, 2001, when he and Guest appeared before the District Court; Guest entered a guilty plea and was then released from jail on his own recognizance.
¶4 Upon his release, Guest, having been displeased with the services of McLaverty for some time, retained other counsel on September 23, 2001. However, in Guest’s complaint he makes no allegation that McLaverty did anything that could be construed as negligent after August 22, 2001.
¶5 The statute of limitations applicable to legal malpractice actions is set forth in § 27-2-206, MCA:
An action against an attorney licensed to practice law in Montana ... based upon the person’s alleged professional negligent act or for error or omission in the person’s practice must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission....
One has discovered, or through the use of reasonable diligence should have discovered, the act, error, or omission, when one has information of circumstances sufficient to put a reasonable person on inquiry regarding the act or omission. Johnson v. Barrett, 1999 MT 176, ¶ 11, 295 Mont. 254, ¶ 11, 983 P.2d 925, ¶ 11. This test requires knowledge of the facts essential to the legal malpractice claim, rather than the discovery of legal theories. Johnson, ¶ 11. Specifically, the court determines whether the plaintiff had “the opportunity to obtain knowledge from sources open to his or her investigation at that time or shortly thereafter[.]” Johnson, ¶ 15 (internal quotation omitted).
¶6 Guest filed his malpractice complaint against McLaverty on September 23, 2004. This was more than three years after McLaverty performed his final services for Guest. Guest was aware of the majority of the underlying facts supporting his allegations of negligence, prior to August 22, 2001. However, Guest argues that he did not learn of several pertinent facts until his new attorney received his client file from McLaverty on November 2, 2001. Guest therefore claims the statute of limitations could not have started to run until his new attorney received the client file. Further, Guest argues that he could not be expected to have the professional legal experience to know he had a potential malpractice claim against McLaverty, prior to the time he retained a new attorney and was informed of the potential claims.
¶7 The allegations of the complaint make it clear that prior to August 22, 2001, Guest was aware that: McLaverty only visited him on a few occasions and each occasion for a short period of time; McLaverty would not accept telephone calls from Guest while he was incarcerated and instructed him to write letters instead; and finally, he repeatedly pled with McLaverty to perform his own investigation into the allegations. We determine that this was “sufficient to put a reasonable person on inquiry regarding an [act or] omission.” See Johnson, ¶ 15. It is clear from Guest’s complaint that he was dissatisfied with McLaverty by the time he was released from jail on August 22, 2001. This was further evidenced by the fact that he fired McLaverty and hired a new attorney shortly after being released from jail.
¶8 The fact that Guest, prior to hiring his new attorney, may have lacked the legal expertise to know he may have had a malpractice claim is irrelevant in this analysis. Johnson, ¶ 11. Thus, Guest’s contention that the statute of limitations cannot begin to run until he “realized the acts and omissions complained of constituted legal malpractice[,]” is incorrect.
¶9 Guest cites Watkins Trust v. Lacosta, 2004 MT 144, 321 Mont. 432, 92 P.3d 620, for the proposition that: “[i]f a legal transaction is beyond the understanding of a layperson and the date of discovery is disputed, summary judgment is not appropriate.” (Internal quotation omitted). He claims he did not understand that he had a malpractice claim, and thus the statute of limitations did not begin to run until he realized that he did. Watkins, however, is clearly distinguishable. The facts of that case involved highly complex issues in estate and tax planning. Watkins, ¶ 43. We concluded that a trustee, even though she had been provided with a copy of the trust, could not have known, as a matter of law, that her attorney had erred in telling her that the trust was revocable. Watkins, ¶ 43. The record in Watkins established that the trust involved “would be very difficult for the average layperson to understand!!,]” and farther “[the expert] testified that even as an estate and tax planning expert, he had to spend many hours reading the [t]rust agreement before he could understand it.” Watkins, ¶ 12. Thus, it was determined that the point at which the trustee should have known the facts at issue, was itself a question of fact. See Watkins, ¶ 41. Yet the analysis still focuses on “when the facts should have been knowable[;]” not when the trustee should have known that a potential malpractice claim existed. Watkins, ¶ 41. In this case, unlike the trustee in Watkins, Guest knew substantially all of the salient facts by the time McLaverty preformed his final services, on August 22, 2001.
¶10 Further, on August 22, 2001, Guest was released from jail, and thus, at least by this date, had the opportunity to obtain knowledge from sources open to his or her investigation at that time or shortly thereafter. See Johnson, ¶ 15. Section 27-2-206, MCA, gave him three years from August 22, 2001, within which to make inquiry and file a complaint. He did not do so.
¶11 Finally, McLaverty represented Guest by appointment as a public defender, under a contract between himself and Ravalli County to employ counsel to represent indigent defendants in criminal cases. Guest argues that, as a third party beneficiary of the public defender contract, he is entitled to damages as a result of McLaverty’s breach of such contract because he did not provide competent legal services. Thus, he claims that the District Court erred in dismissing his contract claim, as it was timely filed within the applicable statute of limitations.
¶12 However, § 27-2-206, MCA, specifically provides that an action based on an error or omission in a lawyer’s practice must be commenced witbdn three years. The claims against McLaverty are all based on alleged professional errors and omissions. A plaintiff cannot, simply by virtue of mislabeling a claim for relief, change the gravamen of the action and secure a longer period of limitation. Demarest v. Broadhurst, 2004 MT 147, ¶ 14, 321 Mont. 470, ¶ 14, 92 P.3d 1168, ¶ 14; see also Erickson v. Croft (1988), 233 Mont. 146, 153, 760 P.2d 706, 710 ("The gravamen of a claim, not the label attached, controls the limitations period to be applied to that claim).
¶13 Guest’s claims all sound in legal malpractice, and because they were not brought within three years of the time within which he discovered, or through the use of reasonable diligence should have discovered the acts, errors, or omissions constituting the alleged malpractice, they are barred by § 27-2-206, MCA.
¶14 Affirmed.
JUSTICES RICE, NELSON, COTTER and LEA PH ART concur.
In Watkins, we applied the “discovery rule.” Watkins, ¶¶ 40-41. Essentially, one’s failure to discover the attorney’s purported negligence may be excused because of the complexity of the legal transaction involved. Watkins, ¶ 41.
Guest does not specify which statute of limitations applies to his contract claim.
|
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JUSTICE MORRIS
delivered the Opinion of the Court.
¶1 Ronald Duane Keeney (Keeney) appeals from the denial by the District Court for the Fourth Judicial District, Missoula County, of his petition to reinstate his driver’s license. We affirm.
¶2 Keeney presents the following issue on appeal: Whether the Department of Justice (Department) could revoke Keeney’s driver’s license despite its failure to provide Keeney with the notice required by the former § 61-11-204(3), MCA (2001).
FACTUAL BACKGROUND
¶3 Keeney had a need for speed. This need manifested itself in him wracking up 10 speeding tickets within 30 months. The Department mailed to Keeney on July 27, 2004, a “Habitual traffic offender declaration and notice of revocation/appeal rights.” The notice informed Keeney that the Department’s records indicated that he had accumulated 30 or more conviction points related to use or operation of a motor vehicle within a three-year period. The Department informed Keeney that state law required it to declare him a habitual traffic offender and to revoke his driver’s license for a period of three years. The Department attached a certified copy of Keeney’s driving record to the notice. The certified copy of Keeney’s driving record reflected the fact that he had been convicted of 10 three-point speeding violations during the period of October 23, 2001, through April 21, 2004. In fact, Keeney accumulated 18 conviction points between October 23, 2001, and May 2, 2003.
¶4 Keeney contested the Department’s actions and filed a petition for judicial review asking that the habitual offender designation be revoked and that the Department reinstate his driver’s license. Keeney first argued to the District Court that Montana law, and not Idaho law, should apply to speed limits on Idaho highways. Keeney had received at least one of his speeding tickets while driving in Idaho. The District Court summarily dismissed his claim.
¶5 Keeney also argued to the District Court that Montana law as it existed on May 2,2003, the date on which he racked up his eighteenth conviction point within a two year period, required the Department to notify Keeney that he had accumulated 18 points within a two year period. The notice would have informed Keeney that the Department would suspend his license unless he completed a certified driver rehabilitation and improvement course. The District Court also rejected this claim. It noted that the legislature amended § 61-11-204, MCA, with an effective date of May 5, 2003, to eliminate the notification requirement. Idaho law enforcement stopped Keeney for speeding in April 2003. He forfeited bond on May 2, 2003. The State did not receive notification of Keeney’s May 2, 2003, conviction from Idaho, however, until May 28,2003. By that date, the notice statute no longer was in effect and the District Court concluded that the Department had correctly applied the law as it existed on May 5,2003. This appeal followed.
STANDARD OF REVIEW
¶6 The denial of a petition to reinstate a driver’s license presents mixed questions of fact and law. See Widdicombe v. State ex rel. Lafond, 2004 MT 49, ¶ 7, 320 Mont. 133, ¶ 7, 85 P.3d 1271, ¶ 7. We review a district court's findings of fact to determine whether they are clearly erroneous. In re McKenzie, 2001 MT 25, ¶ 5, 304 Mont. 153, ¶ 5, 19 P.3d 221, ¶ 5. We conduct plenary review of a district court’s conclusions of law to determine whether they are correct. City of Billings v. Gonzales, 2006 MT 24, ¶ 6, 331 Mont. 71, ¶ 6, 128 P.3d 1014, ¶ 6.
DISCUSSION
¶7 Section 61-11-203, MCA (2001), defined the term “driver in need of rehabilitation and improvement” as “a person who within a 2-year period accumulates 18 or more conviction points according to the schedule specified in subsection (3).” Section 61-11-204, MCA (2001), further provided that the Department shall notify such habitual offender “that -unless the person enrolls in and successfully completes, within 90 days of notification, a certified driver rehabilitation and improvement course” as provided by § 61-2-302, MCA, “the person’s driver’s license will be suspended for a period not to exceed six months or until the person has successfully completed the course, whichever occurs first.” The legislature repealed this notice requirement, effective May 5, 2003, pursuant to the enactment of 2003 Mont. Laws, Ch. 556, Sec. 11, 12. See Compilers Comments to §§ 61-11-203, 204, MCA (2003).
¶8 Keeney argues on appeal that the Department violated his due process rights by failing to provide him notice of his status as an habitual offender as former § 61-11-204(3)(b), MCA (2001), required. He contends that the date of his Idaho conviction on May 2, 2003, before the statutory amendment took effect, controls for purposes of his point accumulation and thereby obligated the Department to provide the requisite notice. He argues that “reasonable reliance” and “fair notice” counsel against applying the legislative amendment to his license revocation. He asserts that he and other Montana drivers possessed the statutory assurance that “they would know if and when they had accumulated enough conviction points to warrant modification of their driving behavior and how the accumulation of 18 conviction points would be evaluated by the department.” The State counters that Keeney couches his argument in terms of due process, but actually challenges what he considers to be the retroactive application of the repealed amendment set forth in 2003 Mont. Laws, Ch. 556. We agree.
¶9 “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.” Section 1-2-109, MCA. For purposes of this provision, “retroactive” means “a statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability, in respect to transactions already past.” Allen v. Atlantic Richfield Co., 2005 MT 281, ¶ 16, 329 Mont. 230, ¶ 16, 124 P.3d 132, ¶ 16. A retroactive or retrospective law “gives a transaction a different legal effect from that which it had under the law when it occurred.” St. Vincent Hosp. v. Blue Cross (1993), 261 Mont. 56, 60, 862 P.2d 6, 9.
¶10 Keeney argues that he possessed a valid Montana driver’s license and once issued, he has an important interest in retaining it. As a result, he contends that his driver’s license cannot be suspended or revoked without the procedural due process guaranteed by the Fourteenth Amendment. See Dixon v. Love (1977), 431 U.S. 105, 112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172. Keeney’s argument hinges on the assumption that he possessed a substantive right to receive the notice. We decline to recognize such a substantive right.
¶11 In Williams v. Wellman-Power Gas, Inc. (1977), 174 Mont. 387, 390-91, 571 P.2d 90, 92, we concluded that application of an amendment extending the statute of limitations to claims not already barred at the time that the amendment took effect would not constitute retroactive application, because "[n]o vested rights are taken away or impaired." We rejected a property owner’s claim that she had a vested property interest to operate a bar on her property in Germann v. City of Whitefish, 2006 MT 130, ¶ 33, 332 Mont. 303, ¶ 33, 137 P.3d 545, ¶ 33. The property owner premised her § 1983 claims on the fact that the City could not take her right to operate a bar on her property through a local ordinance. We dismissed the claims based on her lack of a substantive right to operate a bar when the Department of Revenue had received, but had not yet approved her application. Germann, ¶¶ 31, 33. We likewise rejected a claim of a protected property interest by a mining company in possession of a State mineral lease in Seven Up Pete Venture v. State, 2005 MT 146, ¶ 26, 327 Mont. 306, ¶ 26, 114 P.3d 1009, ¶ 26. We held that a voter-approved initiative enacted while the permit application was pending did not deprive the mining company of a protected property interest in the yet to be obtained mining permit. Seven Up Pete, ¶ 33. Keeney possesses no vested or substantive right to have the Department treat him as a “driver in need of rehabilitation improvement” and to receive procedural notice of his deficiency.
¶12 We have held that new legislation that affects only procedural matters and does not relate to a parties’ substantive rights falls outside the ambit of § 1-2-109, MCA. State Compensation Ins. v. Sky Country (1989), 239 Mont. 376, 379, 780 P.2d 1135, 1137. As recognized by the District Court, the 2003 legislative repeal of the notice requirement did not affect Keeney’s substantive rights “any more-so than the change in the law concerning lifetime offenses of driving under the influence of alcohol versus convictions in the last five years.” The legislature amended the laws pertaining to driving while intoxicated in 1995 to create a felony sanction for fourth or subsequent offense DUI. See § 61-8-714(4), MCA (1995). The amendment making a fourth or subsequent DUI a felony offense became effective on October 1, 1995.
¶13 We first addressed the legislative changes to the DUI statutes and their potential retroactive application in State v. Brander (1996), 280 Mont. 148, 930 P.2d 31. We held that the application of the 1995 amendments did not constitute a retroactive application of the law to earlier convictions that occurred before the amendments took effect. Brander, 280 Mont. at 154-55, 930 P.2d at 35. We reaffirmed that decision in State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37. We noted in Pratt that the legislature enacted the felony DUI statute to punish repetitive behavior more severely rather than to punish defendants for prior convictions. Pratt, 286 Mont. at 170, 951 P.2d at 45.
¶14 Similar logic applies here. The Department did not change the method by which it calculated the points for Keeney’s speeding infractions that occurred before the effect of the legislative amendment. The Department did not punish Keeney for speeding or traffic violations that occurred before the legislative repeal. Instead the Department properly considered these previous violations as points against his driving record when he finally accumulated 30 points for driving offenses.
¶15 The Dissent cites no authority for the proposition that Keeney’s possession of a driver’s license amounted to a substantive right to a particular process. As noted by the Court in State ex rel. Majerus v. Carter (1984), 214 Mont. 272, 276, 693 P.2d 501, 504, in a driver’s license revocation proceeding “[t]he question is how much process is due. The answer is not as much as in a criminal case.” It is important to remember that the Department did not revoke Keeney’s license when he wracked up the eighteen points in a two-year period. The Department did not act until Keeney earned four additional speeding tickets in the next year. Once Keeney reached the thirty-point plateau in a three-year period, the Department sent Keeney a notice of revocation. Similar to Carter, the statutory scheme then afforded Keeney judicial review of the Department’s revocation. Procedural due process requires nothing more in this instance as Keeney “need not be advised of his continuing duty to act as a law-abiding citizen.” Carter, 214 Mont. at 279, 693 P.2d at 505.
¶16 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART and WARNER concur.
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Kerry Ann Schwarz pled guilty in the Twentieth Judicial District Court to criminal possession of dangerous drugs, a felony in violation of § 45-9-102, MCA. The dispositive issue on appeal is whether the District Court correctly determined that law enforcement had legal authority to search Schwarz’s home after her thirteen-year-old daughter provided the officers permission to enter when Schwarz was not home?
¶2 We reverse.
BACKGROUND
¶3 On February 27,2004, Sanders County Deputy Sheriff Joe Brown enlisted the assistance of Thompson Falls City Police Officer Chris Nichols in arresting Jonathan Lowe. After Officer Nichols learned that Lowe was staying at the defendant’s residence in Thompson Falls, the two officers, along with Reserve Deputy Bronner, drove to Schwarz’s home to effect an arrest. Brittany Glazier, Schwarz’s thirteen-year-old daughter, who had just arrived home from the movies with two girlfriends, answered the door. The three friends had been watching a video while waiting for one girl’s ride home; the other friend had permission to spend the night at Brittany’s house. Brittany testified that she did not recognize either of the officers, although, apparently she had met Officer Brown at a Girl Scout event. Officer Brown explained to Brittany, whom he believed to be either thirteen or fourteen years old, that he was looking for Lowe. The record is in dispute as to whether Brittany invited the officers to search the home, or whether the officers directly asked permission to enter. Either way, the officers entered with Brittany’s consent. No one made an effort to contact Schwarz; nor did law enforcement obtain a search warrant.
¶4 During the course of the search, Officer Nichols discovered a marijuana pipe and a small plastic container containing a white substance, later determined to be methamphetamine. At some point, Schwarz, who was out bowling, called home and learned of the officers’ presence. She immediately drove home. Upon Schwarz’s arrival, Officer Nichols indicated that he had discovered drugs. Schwarz admitted to owning the pipe and marijuana and provided written consent to another search of the entire house. Officer Nichols arrested Schwarz and drove her to the police station, obtaining further admissions from Schwarz along the way.
¶5 Schwarz filed a motion to suppress the evidence and statements obtained by the officers, arguing that law enforcement illegally searched her home in violation of Article II, Sections 10 and 11 of the Montana Constitution. After hearing testimony on the motion, the District Court denied it, noting that because Brittany and her friend were home alone on a Friday night, “all the parents had confidence in these girls to exercise good judgment.” Schwarz entered a conditional plea preserving her right to appeal the suppression issue.
STANDARD OF REVIEW
¶6 The standard of review of a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. McLees, 2000 MT 6, ¶ 9, 298 Mont. 15, ¶ 9, 994 P.2d 683, ¶ 9.
DISCUSSION
¶7 Did officers have legal authority to search Schwarz’s home based on consent from Schwarz’s thirteen-year-old daughter?
¶8 Since Article II, Section 11 of the Montana Constitution mirrors the Fourth Amendment to the United States Constitution, we analyze most search and seizure issues by applying traditional federal principles. McLees, ¶ 23. Unlike its federal counterpart, however, Montana’s constitutional scheme affords citizens broader protection of their right to privacy. See Article II, Section 10. In Montana, therefore, we analyze search and seizure issues in light of our citizens’ enhanced right to privacy. McLees, ¶ 28.
¶9 In McLees, ¶ 10, this Court noted that “[w]arrantless searches conducted inside a home are per se unreasonable, subject only to a few specifically established and well-delineated exceptions.” (Citations omitted.) One such exception is a search conducted pursuant to a consent given freely and voluntarily. McLees, ¶ 10. We have previously cited the United States Supreme Court’s decision in United States v. Matlock (1974), 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-50, for the proposition that “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Emphasis added.) See McLees, ¶ 10, and State v. Sorenson (1979), 180 Mont. 269, 275, 590 P.2d 136, 140. The Matlock court specifically clarified that “common authority” does not necessarily flow from mere property interest.
The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Matlock, 415 U.S. at 171, n.7, 94 S.Ct. at 993, n.7, 39 L.Ed.2d at 250, n.7.
¶10 A decade and a half after the Matlock decision, the Supreme Court addressed the issue of apparent authority in Illinois v. Rodriguez (1990), 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 159-60, concluding that “[b]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” (Citation omitted.) In McLees, ¶ 32, this Court explicitly rejected the Rodriguez holding, “refus[ing] to extend the doctrine of apparent authority based on ... [Montana’s] increased right to privacy under Article II, Sections 10 and 11.” We held “that for third-party consent to be valid as against the defendant, the consenting party must have actual authority to do so.” McLees, ¶ 32 (emphasis added).
¶11 The question now before this Court is whether a third-party youth can provide legal consent to a search. Several courts have addressed this issue, with the majority concluding that “there is no per se rule that all minors lack the authority to consent to a search.” Abdella v. O’Toole (D. Conn. 2004), 343 F.Supp.2d 129, 135. Typically, the consenting party’s youth will be one of many factors considered when the trier of fact analyzes the legality of a minor’s consent. See State v. Tomlinson (Wis. 2002), 648 N.W.2d 367, 376 (“[w]hether the child possesses such authority will depend on a number of factors, and courts must look at the totality of the circumstances to make such a determination”); State v. Butzke (Neb. App. 1998), 584 N.W.2d 449, 458 (the court must analyze voluntariness and common authority over the premises, or whether law enforcement reasonably believed the child had apparent authority); State v. Kriegh (Kan. App. 1997), 937 P.2d 453, 457 (“[a]lthough age is a factor to consider in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent”); State v. Will (Or. App. 1994), 885 P.2d 715, 720 (“age is merely one factor to be considered in determining the scope of the minor’s authority to consent and whether the minor’s consent was knowing and voluntary” (citation omitted)); Saavedra v. State (Fla. 1993), 622 So.2d 952, 956 (“the State must show by clear and convincing evidence from the totality of the circumstances that the minor gave free and voluntary consent”); Davis v. State (Ga. 1992), 422 S.E.2d 546, 549 (a court must “examine a child’s mental maturity and his ability to understand the circumstances in which he is placed, and the consequences of his actions”); and People v. Jacobs (Cal. 1987), 729 P.2d 757, 764 (“[a]s a child advances in age she acquires greater discretion to admit visitors on her own authority”).
¶12 In addressing this issue, we recognize that other jurisdictions have chosen not to create a per se rule that all youths lack the authority to consent to a search. However, just as we chose not to adopt Rodriguez’s apparent authority doctrine in light of Montana’s greater right to privacy, so too do we now opt not to march in step with our sister states and the federal courts on the issue of minor consent. Importantly, several of their decisions incorporated the doctrine of apparent authority. Since this Court has explicitly rejected that doctrine, we need only address the narrower question of whether a youth has actual authority to consent to a search of her parent’s home. We hold that she does not.
¶13 In reaching this conclusion, we observe that in general, a youth does not have authority equal to that of a parent or guardian regarding their shared property. As the Supreme Court of Wisconsin noted, “[a] minor child who lives in the same home with his or her parents or guardians obviously shares use of the property with the parents or guardians to some extent. However, it should also be obvious that a child generally does not share mutual use of the property with a parent to the same extent that such use might be shared between spouses or between cohabitating adults.” Tomlinson, 648 N.W.2d at 376. Similarly, the Supreme Court of California opined that even if a parent chooses to grant her minor children joint access and mutual use of the home, “parents normally retain control of the home, as well as the power to rescind the authority they have given.” Jacobs, 729 P.2d at 763. The California court farther observed that a parent has not surrendered the privacy of his home to the discretion of a child, but rather, the child has privacy at the discretion of the parent. In other words, “a child cannot waive the privacy rights of her parents.” Jacobs, 729 P.2d at 763.
¶14 We agree with the above comments and further conclude that in light of Montana’s enhanced right to privacy under Article II, Section 10, consent, as an exception to the warrant requirement, must be narrowly construed. Accordingly, we hold that a youth under the age of sixteen does not have the capacity or the authority to relinquish her parents’ privacy rights. We find further persuasive authority for this conclusion in the Legislature’s enactment of § 41-5-331(2), MCA, which states that a youth under the age of sixteen can only waive her right against self-incrimination with parental permission or with the advice of counsel. Although § 41-5-331, MCA, only addresses a youth’s constitutional right against self-incrimination, it nonetheless supports the principle that a minor who cannot waive her own rights without parental permission or legal counsel, cannot waive her parent’s privacy rights. See State v. Allen (1980), 188 Mont. 135, 612 P.2d 199, involving § 41-5-303, MCA (which referenced all “constitutional rights”), the predecessor to § 41-5-331, MCA, wherein we held that a sixteen-year-old youth could not, without the agreement of her parents or advice of counsel, consent to a search of her own apartment. Accordingly, we now adopt a per se rule that a youth under the age of sixteen lacks the capacity or the authority to consent to a search of her parents’ home. ¶15 Reversed and remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE GRAY, JUSTICES COTTER, NELSON and MORRIS concur.
Section 41-5-303, MCA (1980), read:
When a youth is detained for investigation or questioning upon a matter which could result in a petition alleging that the youth being detained is either delinquent or in need of supervision, the following requirements must be met:
(1) The youth shall be immediately and effectively advised of his constitutional rights and his rights under this chapter.
(2) The youth may waive such rights under the following situations:
(a) when the youth is under the age of 12 years, the parents of the youth may make an effective waiver;
(b) when the youth is over the age of 12 years and the youth and his parents agree, they may make an effective waiver; and
(c) when the youth is over the age of 12 years and the youth and his parents do not agree, the youth may make an effective waiver only with advice of counsel.
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Lisa Pumphrey (Pumphrey) sued Rick Lee Pagitt and Empire Lath and Plaster (collectively, Empire) for negligence. A jury awarded Pumphrey $3.9 million. Empire now appeals. We affirm.
¶2 The dispositive issues on appeal are:
¶3 (1) whether the District Court erred in denying Empire’s motion for an independent medical examination pursuant to Rule 35, M.R.Civ.P.; and
¶4 (2) whether the District Court had authority to reconvene and re-poll the jury after discharging the jurors.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 This cause of action arose out of an automobile accident, wherein Pagitt, while in the course of his employment for Empire, negligently drove a pickup truck into the rear end of Pumphrey’s stopped SUV. The collision propelled Pumphrey’s SUV into the vehicle of her thenfiancé, Sean Pumphrey. The collision totaled all three vehicles and injured Pumphrey.
¶6 Pumphrey suffered injury to her neck and back and was later diagnosed with two herniated discs and dislocated ribs. A doctor testified that Pumphrey would likely endure life-long pain due to her injuries. Witnesses testified that the chronic pain that Pumphrey suffered ultimately caused her to withdraw from law school and has prevented her from pursuing gainful employment. Additionally, according to her own testimony and that of her doctors, Pumphrey cannot even exercise, let alone participate in the recreational activities-backpacking, kayaking, mountain biking, andrunning-that she had so enjoyed before the accident.
¶7 In January 2004, Empire admitted that Pagitt negligently caused the accident. Therefore, as Empire acknowledges on appeal, “[t]he central issues at trial were causation and damages.” Indeed, Empire identified only three issues of fact in the pre-trial order: the degree of severity and permanency of Pumphrey’s injuries; whether the accident caused Pumphrey’s present injuries; and the proper measure of damages.
¶8 On May 7,2004, the court filed a scheduling order, setting a trial date of January 3, 2005. The court set October 11, 2004, as the deadline for disclosing experts, pursuant to Rule 26(b)(4)(A)(i), M.R.Civ.P. The court set October 25, 2004, as the deadline for disclosing rebuttal experts and November 8, 2004, as the close of discovery. The scheduling order provided that these deadlines “may be modified upon mutual agreement of the parties, in writing.”
¶9 On October 8, 2004, in accordance with the scheduling order, Pumphrey filed expert disclosures with the court. Pumphrey identified six potential expert witnesses and, in accordance with Rule 26(b)(4)(A)(i), MCA, specified the subject matter on which each would testify, the substance of the facts and opinions to which each would testify, and provided the bases for such opinions.
¶10 Meanwhile, on October 6, 2004, Empire’s counsel sent a letter to Pumphrey’s counsel, requesting that Pumphrey submit to an independent medical examination (IME) by Dr. John Taylor, a neurologist. Pumphrey’s counsel refused the following day, at which point Empire had four days remaining to disclose Dr. Taylor as an expert, or eighteen days within which to disclose him as a rebuttal expert. Empire did neither. On October 28, 2004, Empire moved the court to order Pumphrey to submit to an IME as well as to extend the deadline for disclosure of rebuttal experts so that Empire could properly disclose the anticipated testimony of Dr. Taylor, following his examination of Pumphrey. In its motion, Empire noted that “the entire case may ultimately turn on two issues: (1) the severity and extent of [Pumphrey’s] claimed injuries; and (2) whether her claimed injuries were, in fact, actually caused by the accident at issue.”
¶11 By the deadline for disclosing rebuttal experts, Empire had not formally disclosed Dr. Taylor as an expert witness pursuant to Rule 26(b)(4), M.R.Civ.P. Consequently, the court denied Empire’s motion for an IME and extension of the disclosure deadline, noting that Empire failed to provide sufficient justification for its failure to meet the scheduling deadline and that Pumphrey would suffer hardship if forced to prepare a response to the IME shortly before trial. The court indicated that “the main reason for the court-imposed deadlines” is preventing the difficulties inherent in coordinating an IME at the last minute. Although Empire argued that Pumphrey’s counsel “led [Empire] to believe that an IME would be permitted,” and that the deadline for an IME would be extended, the court noted that Empire did not point to any writing evincing that purported inclination.
¶12 After a two and a half day trial, the jury returned a verdict in favor of Lisa Pumphrey, awarding her $3.9 million in special damages. After the court announced the verdict, counsel for Empire requested that the court poll the jury, pursuant to § 25-7-501, MCA. The clerk then reread the verdict and addressed each juror in turn. The clerk asked each of the first two jurors, “is that your verdict, [Jane Doe]?” As to the remaining nine jurors, the clerk simply read their names. According to the poll, eleven jurors agreed to the verdict and only one disagreed. The judge then discharged the jurors, informing them:
now you can talk to anybody you wish about the case and you can tell them anything you wish about the case. The attorneys or their representatives might contact you and it is fine for you to talk to them, and in fact, you can talk to them about things you discussed.... Again I want to thank you very much for your time and work in this case.... Court is in recess.
¶13 A short while after the jury had been discharged and several jurors had left the courtroom, some jurors told the bailiff that they had misunderstood the polling question. Their confusion stemmed from the clerk’s use of the ambiguous possessive pronoun “your.” According to the foreperson, some of the jurors thought that they were being asked whether the verdict, as read in court, correctly reflected the verdict that the entire jury had reached, rather than whether they personally agreed with the verdict. The court then reconvened and reassembled ten of the jurors for the purpose of re-polling them. Two jurors had already left the premises. Counsel for Pumphrey quarreled with the court over the legality of this procedure, observing that the defendants had not objected to the initial polling process and that in the absence of any objection, “[i]t was my understanding that the jury was dismissed and that the record was closed as far as the trial is concerned.” Nevertheless, the court reassembled the remaining jurors and, at the suggestion of Empire’s attorney, proposed immediately re-polling the ten jurors who were present. With respect to the court’s suggestion to proceed with re-polling in this particular manner-immediately re-polling ten of the twelve jurors-Pumphrey’s counsel expressed no objection. The re-polling resulted in six persons voicing agreement with the verdict and four voicing disagreement with the verdict.
¶14 The following day, the court reconvened to re-poll the two absconding jurors. At the outset of the proceedings, counsel for Pumphrey “[i]n an abundance of caution ... reiterate[d her] objection on the record.” She noted that “[t]he correct and valid verdict was entered in this case yesterday. At the Defendant’s request, the jury was polled, the verdict was affirmed, and therefore the verdict was complete. This Court then appropriately discharged the jury.... [T]hese proceedings are unnecessary and contrary to law.” Counsel for Empire indicated that he had shared an elevator with these two individuals following the discharge of the jury and “did engage both jurors in a brief conversation” about the damages calculation in the case. Counsel later characterized this interaction as “a several minute conversation [that] constituted substantial interaction between counsel and jury members ... before the re-polling took place.” Nevertheless, the two were re-polled, and one of them agreed with the verdict and the other disagreed, bringing the total tally in the second poll to seven jurors in agreement and five in disagreement with the verdict.
¶15 The court then decided to re-poll the jury once more. The court reassembled all twelve jurors and, over objection from both parties, re-polled them. Nine expressed agreement with the verdict and only three expressed disagreement. The court accepted this as a valid poll of the jury, denied Empire’s subsequent motion for a new trial and entered judgment in favor of Pumphrey for $3.9 million.
STANDARDS OF REVIEW
¶16 We employ an abuse of discretion standard when reviewing a district court’s ruling on a request for an IME, pursuant to Rule 35, M.R.Civ.P., Henricksen v. State, 2004 MT 20, ¶ 51, 319 Mont. 307, ¶ 51, 84 P.3d 38, ¶ 51, and when reviewing the sanction a district court imposes for violation of a scheduling order, McKenzie v. Scheeler (1997), 285 Mont. 500, 507, 949 P.2d 1168, 1172. “A court abuses its discretion if it acts arbitrarily without employment of conscientious judgment or exceed[s] the bounds of reason resulting in substantial injustice.”McDermott v. Carie, 2005 MT 293, ¶ 10, 329 Mont. 295, ¶ 10, 124 P.3d 168, ¶ 10 (quotations omitted, alteration in original).
¶17 We review a district court’s conclusions of law to determine whether the district court’s interpretation of the law is correct. Chase v. Bearpaw Ranch Ass’n, 2006 MT 67, ¶ 14 331 Mont. 421, ¶ 14, 133 P.3d 190, ¶ 14. Whether a discharged jury retains authority to revisit, alter or amend its verdict is a question of law.
¶18 We review a district court’s denial of a motion for a new trial for a manifest abuse of discretion. Bailey v. Beartooth Communications Co., 2004 MT 128, ¶ 10, 321 Mont. 305, ¶ 10, 92 P.3d 1, ¶ 10.
DISCUSSION
Issue 1: Whether the District Court erred in denying Empire’s motion for an independent medical examination pursuant to Rule 35, M.R.Civ.P.
¶19 Empire argues that the central issues at trial were causation and damages, specifically the extent and severity of Pumphrey’s injuries and whether they resulted from the collision with Pagitt. Empire notes that Pumphrey placed her physical condition in controversy; therefore, Rule 35, M.R.Civ.P., provides that Empire may conduct an IME. Empire contends that its request for an IME, submitted prior to the close of discovery, was timely and proper under Henricksen. Finally, Empire maintains that it informally requested an IME and informally identified Dr. Taylor as the expert who would perform the IME before the deadline for expert disclosure.
¶20 Pumphrey argues that the District Court properly exercised its broad discretion in enforcing the scheduling order. Pumphrey notes that Empire agreed to the scheduling order in May 2004. Pumphrey distinguishes Henricksen because there the State timely disclosed its expert. Finally, Pumphrey suggests that Dr. Taylor, an undisclosed expert, could not have testified at trial, so there was no reason for him to perform an IME.
¶21 Empire sought to have Dr. Taylor perform a neurological examination of Pumphrey. Given that the sole issues at trial were causation and damages, we presume that Dr. Taylor would have focused on these issues. It is beyond cavil that a witness who performs a neurological examination and testifies concerning the results thereof, deducing the potential causes of injuries and extrapolating long-term health effects therefrom, qualifies as an expert witness.
¶22 Pursuant to the scheduling order, Empire had until October 25, 2004, to disclose Dr. Taylor as a rebuttal expert. On October 6, 2004, Empire did provide Pumphrey with informal notice that it wished to have Dr. Taylor perform an IME. Given that it was not served on Pumphrey, filed with the court, made under oath or subject to sanctions provided for by Rule 11, M.R.Civ.P., such informal notice does not comply with the scheduling order, which contemplates formal disclosure, pursuant to Rule 26(b)(4)(A)(i), M.R.Civ.P. Empire never formally disclosed Dr. Taylor as an expert. Indeed, not until three days after the deadline for disclosing rebuttal experts did Empire actually move the court to order an IME, thereby first informing the court (albeit indirectly) of its intention to call Dr. Taylor as an expert witness.
¶23 Relying on Henricksen, Empire argues that the District Court abused its discretion by declining to order an IME when Empire submitted its formal request for such an order prior to the close of discovery. Empire’s reliance on Henricksen is inapposite. In Henricksen, we held that the District Court abused its discretion when it declined to order an IME despite the State’s having formally issued a request for such nine days before the close of discovery. ¶ 55. We noted that “[a]n IME need not be conducted by the date set for expert disclosures.” Henricksen, ¶ 59. Our holding in Henricksen, however, was premised on the fact that the State was surprised by Henricksen’s last-minute revelation that she would seek to recover on the basis of suffering from post-traumatic stress disorder. ¶ 55. Moreover, Henricksen presupposes that the party requesting an IME has, pursuant to Rule 26(b)(4)(A)(i), M.R.Civ.P., formally and timely disclosed the expert who will conduct the IME. ¶¶ 53, 59, 60.
¶24 Here, in contrast, Empire never formally disclosed Dr." Taylor as an expert and alleges no surprise concerning the nature ofPumphrey’s injuries. Accordingly, the court did not err in denying Empire’s motion requesting an IME. See Miranti v. Orms (1992), 253 Mont. 231, 235, 833 P.2d 164, 166 (allowing two undisclosed experts to testify constitutes an abuse of discretion, notwithstanding plaintiff s assertion that defendant “knew” that they would testify as experts); see also United First Fed. S & L v. White-Stevens (1992), 253 Mont. 242, 247-48, 833 P.2d 170, 173-74 (allowing undisclosed experts to testify constitutes abuse of discretion). Because the court could have properly prevented Dr. Taylor from testifying, ordering Pumphrey to undergo an IME performed by Dr. Taylor would serve no conceivable purpose.
¶25 Assuming, arguendo, that Empire formally disclosed Dr. Taylor when it moved the court to order Pumphrey to submit to an IME, such an untimely formal disclosure would only enable Dr. Taylor to testify if the delay were attributable to surprise caused by Pumphrey or some other good cause. See, e.g., Mason v. Ditzel (1992), 255 Mont. 364, 370, 842 P.2d 707, 711-12 (allowing an untimely disclosed psychiatric expert to testify for the defendant because the plaintiffs failure to fully disclose her past medical providers contributed to the defendant’s tardy realization that testimony from a psychiatric expert would prove useful); see also Rule 16(b), M.R.Civ.P. (“[a] schedule shall not be modified except by leave of the judge upon a showing of good cause”); McKenzie, 285 Mont. at 507, 949 P.2d at 1172 (bestowing discretion on a district court to impose sanctions for violations of a scheduling order). Empire asserts no surprise as to the extent or severity ofPumphrey’s injuries, nor does it provide any other good cause for not complying with the scheduling order. While this Court may have imposed a different sanction, we cannot say that the District Court abused its discretion by denying Empire’s request for an IME in response to Empire’s disregard of the scheduling order.
¶26 Empire never formally disclosed Dr. Taylor as an expert pursuant to Rule 26(b)(4), M.R.Civ.P. Even if we treated Empire’s motion requesting an IME as an untimely formal disclosure, Empire does not attribute the tardiness of such “disclosure” to surprise or any other good cause. Accordingly, we hold that the District Court properly exercised its discretion when it denied Empire’s motion for an IME.
Issue 2: Whether the District Court had authority to reconvene and re-poll the jury after discharging the jurors.
¶27 Empire argues that the court properly reassembled and re-polled the jury. Empire maintains that Pumphrey, by failing to object to re-polling the jury, acquiesced to the process and waived any right to appeal the issue. Based on caselaw from other jurisdictions, Empire suggests that even if Pumphrey had objected, the court had authority to re-poll the jury, notwithstanding counsel’s ex parte contact with individual jurors. Empire insists that only the second jury poll represented a valid poll. Thus, Empire suggests, the District Court should have declared a mistrial, rather than poll the jurors for a third time.
¶28 Pumphrey argues that the District Court correctly entered the verdict initially announced by the jury and confirmed by the initial poll of the jurors. Pumphrey stresses that she immediately objected to the court’s decision to reconvene the ex-jurors for further polling. Pumphrey maintains that once the jury was discharged, it lost authority to alter the verdict-the twelve individuals no longer comprised a jury.
¶29 Whether a trial court has authority to reassemble and poll jurors after previously discharging the jury is a question of first impression in Montana. Our resolution of this issue is aided by recognition that re-polling the jury potentially results in altering the verdict.
¶30 In light of the novelty of the situation she faced, we consider Pumphrey’s protestations against the proposed reassembly and re-polling of the jurors to constitute an adequate objection. We will consider an objection sufficient if it specifies the reason for disagreement with the procedure employed by the court. See, e.g., Adams and Gregoire, Inc. v. National Indemnity Co. (1962), 141 Mont. 103, 110, 375 P.2d 112, 116 (“mere objection without assignment of the specific reason for the objection is not a proper objection”). Although she did not utter the magic word “objection,” Pumphrey’s counsel clearly expressed her disagreement with the procedure and adequately specified the basis therefore-that Empire had not objected to the initial poll of the jurors and that the court had consequently discharged the jury, marking completion of the trial. Only after it became apparent that the court would re-poll the jurors, did Pumphrey indicate that she did not object to the specific proposal to immediately poll ten of the twelve jurors. We conclude that Pumphrey did not waive her right to appeal the propriety of reassembling and re-polling the jurors following their discharge.
¶31 It is evident that the statute authorizing a district court to poll jurors presupposes that the jury remains impaneled at all times before it is polled. Section 25-7-501(2), MCA, provides:
Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his [or her] verdict. If upon such inquiry or polling more than one-third of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case.
The statute plainly contemplates that jury polling will precede the discharge of the jury. Although it has been re-enacted many times during the past century, the Legislature last amended this statute in 1895. At that time, the law provided that the jury’s authority terminated upon discharge. See Morris v. Burke (1895), 15 Mont. 214, 215, 38 P. 1065, 1066 (quoting In re Thompson (1890), 9 Mont. 381, 388, 34 P. 933, 934) (“[w]hen the verdict is rendered and recorded, and the jury discharged, the jury is functus officio. Prior to that time the verdict is in control of the jury in some respects. After those events the province of the jury is exhausted”). We presume that the legislature is cognizant of existing law. Matter of Investigative Records (1994), 265 Mont. 379, 382, 877 P.2d 470, 472. Had the legislature intended to modify existing law in order to provide courts with authority to poll a jury after discharging the jurors, it would have provided for this contingency when it amended the statute.
¶32 Subsequent to 1895, this Court has consistently held that the court effectively nullifies a jury’s authority when it discharges the jurors. See Fauver v. Wilkoske (1949), 123 Mont. 228, 236-37, 211 P.2d 420, 425 (“[t]he time for correcting an insufficient verdict is ... before the jury has been discharged from the case”); see also Poor v. Madison River Power Co. (1910), 41 Mont. 236, 243, 108 P. 645, 648 (“[the jury] had been finally discharged from consideration of the case, with the result that they had become again members of the community at large, freed from the obligations of their official oaths, and could not have been recalled except upon consent of all the parties”); cf. Gilmore v. Mulvihill (1940), 109 Mont. 601, 98 P.2d 335 (affirming the court’s alteration of a facially deficient verdict following the discharge of the jury). Moreover, we have explained that “[i]f after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath ....” Estate of Spicher v. Miller (1993), 260 Mont. 504, 507, 861 P.2d 183, 185 (ruling on the admissibility of juror affidavits to impeach a verdict, pursuant to Rule 606(b), M.R.Evid.). This rationale applies equally to polling discharged jurors who have dispersed.
¶33 In ascertaining the court’s authority to reassemble discharged jurors in order to revisit the verdict, we abide by this Court’s existing precedent and supporting rationale, while seeking further guidance from other courts. In Spears v. Mills (Ark. 2002), 69 S.W.3d 407, after the court announced a verdict, neither party requested that the court poll the jurors and the court discharged the jurors. Subsequently, the jurors alerted the bailiff that there had been a misunderstanding that affected the validity of the verdict, and the court reassembled the jury. The foreman indicated that the jury had not had contact with any non-juror. The polling revealed that a majority of jurors disagreed with the verdict. The court sent the jury back for additional deliberations, and they returned with an amended verdict. Spears, 69 S.W.3d at 409-10. The Supreme Court of Arkansas held that the trial court erred in polling the jurors following their discharge and dispersal. The court declared “paramount” its concern that the jury remain “free from even the appearance of taint or outside influences.” Spears, 69 S.W.3d at 413. Consequently, the court held, once discharged, a jury may only correct or amend its verdict if it has “not left the presence of the trial court and mingled with bystanders.... [MJingling occurs once the individual jurors have been discharged from their oath and duties as jurors and have left the presence, control, and supervision of the court.” Spears, 69 S.W.3d at 412.
¶34 The rule articulated in Spears comports with existing Montana law, but provides a narrow exception in cases where the jury could not have been subjected to any outside influence after being formally discharged. This exception strikes the proper balance between the pursuit of substantive justice and the need to maintain confidence in the sanctity of jury verdicts by ensuring that the “fountain of justice” remains pure. Melton v. Commonwealth (Va. 1922), 111 S.E. 291, 293. Finally, it embraces the rationale this Court expressed in Estate of Spicher. Therefore, we adopt the rule that a jury lacks any authority to revisit, alter or amend its verdict-including via juror polling-after the trial court has discharged the jurors and any of them have left the presence, control and supervision of the court.
¶35 Indeed, several of the non-Montana cases that Empire cites, which it claims support the court’s authority to re-poll the jurors after discharging the jury, resonate generally with Spears. The majority of these courts allow a jury to alter its verdict only if the jurors have not dispersed or commingled with non-jurors after being discharged. See Newport Fisherman’s Supply Co. Inc. v. Derecktor (R.I.1990), 569 A.2d 1051, 1053 (allowing a discharged jury to amend a verdict when the jurors had not contacted either party and “remained an undispersed unit within the control of the court” because no “extratrial influence [could have infected] the sanctity of the jury’s secrecy between the time of discharge and reassembly”); see also Lapham v. Eastern Mass. St. Ry. Co. (Mass. 1962), 179 N.E.2d 589, 591 (permitting the jury to reassemble and correct a defective verdict after being discharged and separating “if the judge determines that nothing prejudicial to the cause of justice occurred during the separation”); Sierra Foods v. Williams (Nev. 1991), 816 P.2d 466, 467 (creating an exception to the general rule that “a trial court is without authority or jurisdiction to reconvene a jury once it has been dismissed,” in situations “when the jury has not yet dispersed or lost its separate identity and when the [party opposed to reconvening the jury] has presented no proof of outside influence”); McCauley v. Charter Oak Fire Ins. Co. (Tex. Ct. App. 1984), 660 S.W.2d 863, 865 (“[s]ince the jurors were still assembled in the courtroom and were under the control of the court, it is our view that the jury had not been discharged”). Empire also relies on two cases from jurisdictions whose law irreconcilably conflicts with existing Montana law on the jury’s lack of authority to alter a verdict after it has been discharged. See Drop Anchor Realty Trust v. Hartford Fire Ins. Co. (N.H. 1985), 496 A.2d 339, 345 (relying on Dearborn v. Newhall (N.H. 1884), 63 N.H. 301, 302-03, for the proposition that an error in a verdict can be corrected after discharge of the jury “whether the jury had or had not separated”); see also Indus. Savings Bank v. Mitchell (Ala. 1932), 140 So. 449, 452 (relying on Alabama’s rule that a verdict has not been rendered until it has been accepted by the court to allow the jury to amend a facially defective verdict that had not yet been accepted by the court). To the extent that the non-Montana authorities on which Empire relies do not directly conflict with the existing Montana law, they fail to support Empire’s position in this case.
¶36 Here, the jury rendered its verdict, which the court subsequently confirmed by polling the jurors. The court then discharged the jury, and the jurors left the courtroom. Two of the jurors conversed with Empire’s counsel about the calculation of damages-a central issue in the case. Not only had the jurors left the presence and control of the trial court (allowing at least the appearance of taint) two of them had actually been subjected to the most pernicious of outside iniluences-ex parte discussion of the verdict with Empire’s counsel. Having left the “presence, control, and supervision of the court,” Spears, 69 S.W.3d at 412, the jurors could no longer correct their verdict. Consequently, the trial court erred as a matter of law when it reassembled the jury and polled the jurors for a second time.
¶37 Nevertheless, the District Court eventually polled the jury for a third time and ultimately entered the $3.9 million verdict initially reached by the jury. On the basis of this final poll of the jurors, and the propriety of its earlier denial of Empire’s request for an IME, the District Court denied Empire’s motion for a new trial. We will not reverse a district court that reaches the correct result, even if for the wrong reason. Palmer v. Bahm, 2006 MT 29, ¶ 20, 331 Mont. 105, ¶ 20, 128 P.3d 1031, ¶ 20. Accordingly, we affirm the District Court’s entry of the verdict and denial of Empire’s motion for a new trial.
CONCLUSION
¶38 Empire never formally disclosed Dr. Taylor as an expert witness. To the extent that Empire did provide formal, albeit indirect, notice that it would offer expert testimony from Dr. Taylor, it nonetheless failed to establish surprise or any other good cause for circumventing the court’s scheduling order. Consequently, the District Court did not abuse its discretion when it declined to order Pumphrey to submit to an IME.
¶39 As soon as any discharged juror left the presence, control and supervision of the District Court, the court lost authority to re-empanel the jury and poll the jurors. The District Court erred in twice re-polling the jurors. Nevertheless, the court ultimately arrived at the correct result when it entered the initial verdict rendered by the jury and denied Empire’s motion for a new trial.
¶40 We affirm.
JUSTICES WARNER, COTTER, MORRIS and RICE concur.
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Kirk D. Sunday (Sunday) appeals from an Order of the Eighth Judicial District Court, Cascade County, declaring that he does not have an easement across property owned by Donald Harboway and Tina Harboway (Harboways). Harboways cross-appeal from another part of the District Court’s Order which declares that an easement exists around the perimeter of one parcel of Harboways’ property, which is a part of this litigation, but that Sunday cannot access it. We affirm.
¶2 We restate and address the following issues on appeal:
¶3 1. Did the District Court err in concluding that Sunday does not have an easement for a road across Harboways’ property?
¶4 2. Did the District Court err in concluding that an easement existed for a road around the perimeter of a part of Harboways’ property?
¶5 3. Are Harboways entitled to attorney fees on appeal?
BACKGROUND
¶6 The land at issue is located in Cascade County in the area commonly known as Sudden Valley. Prior to July 23, 1971, all of the land in question was owned by John L. and Anna Barrett. The Barretts conveyed this land to Harold Poulsen, subject to easements visible on the property. Mr. Poulsen and his wife conveyed the land to James R. Gist (Gist) and Carl Heishman (Heishman). Gist and Heishman divided the land into multiple parcels. Three parcels were eventually acquired by Harboways and one parcel was eventually acquired by Sunday.
¶7 The land owned by Harboways is separated from that owned by Sunday by a tract owned by Darrel Evert (Evert), who is not involved in this litigation.
¶8 The property in question, the Alleged Road, and the 30 foot easement in question, are generally depicted as follows:
¶9 Gist and Heishman conveyed Parcel A to Marlin J. Dimmer and Joy M. Dimmer (Dimmers), “subject to all... easements ... appearing of record against said land or now visible....” Harboways acquired Parcel A by separate conveyances from the Dimmers, neither of which was subject to visible easements.
¶10 Gist and Heishman conveyed Parcel B to L. Kent Poulsen and Mary Kay Poulsen (Poulsens), “subject to all... easements... appearing of record against said land or now visible....” The Poulsens in turn conveyed Parcel B to Harboways. This conveyance was not subject to visible easements.
¶11 Gist conveyed Parcel C to Timothy F. Valerie and Anna H. Valerie (Valeries), “free from all incumbrances except all visible road easements and hereditaments.” This conveyance was made September 24, 1976, nearly two years before Sunday’s predecessors in interest, the Scotts, purchased Parcel D. The deed from Gist to Valeries specifically contained the language: “reserving unto the Grantor, his heirs, successors and assigns, however, a Thirty (30) foot wide easement on all sides of the inside perimeter of the said described property for the purposes of construction, maintenance and use of roads, water, sewer, and utility facilities.” Harboways acquired Parcel C following four conveyances that were not subject to visible easements.
¶12 By contract for deed made December 23,1976, Gist sold to Evert’s predecessor in title, Dwight A. Darrah, Annie Bell Darrah, Harry C. Darrah, and Esther L. Darrah (Darrahs), Parcel E. On May 8, 1978, Gist conveyed Parcel D to Calvin B. Scott and Judy R. Scott (Scotts). Sunday subsequently acquired Parcel D. Thus, prior to the time that Sunday’s predecessor in interest, Scotts, acquired Parcel D from Gist, the 30 foot easement on Parcel C could not provide access to Sunday’s land. There is no record of an easement across Parcel E for access to Parcel D.
¶13 Sunday sometimes traveled over Harboways’ land using the way depicted above as the Alleged Road. He refers to this route as a road, while Harboways refer to it as an indistinct two-rut trail. Harboways blocked the Alleged Road with a fence. Sunday sued, claiming an easement giving him the right to cross Harboways’ land on the Alleged Road. He first claimed the Alleged Road constitutes an easement that was visible at the time of conveyances to Harboways’ predecessors in interest. Alternatively, Sunday claimed an easement by prescription over the Alleged Road.
¶14 Sunday’s claims were tried to the District Court sitting without a jury. On December 22, 2004, the District Court filed its Findings of Fact, Conclusions of Law and Order (Order). The District Court concluded that Sunday failed to establish the Alleged Road as a visible easement reserved in prior deeds, and further that he did not establish a prescriptive easement over it to access his property.
¶15 Also in its Order, the District Court concluded that “a 30 foot easement was created on Harboways’ property by the Gist to Valerie deed. However, Sunday does not have an easement across the northern portion of Harboways’ land (original Kent and Poulsen property, original Dimmer and Calvert property) to access this ‘road’ easement.” This appeal and cross-appeal followed.
¶16 Harboways have moved this Court for an injunction pending resolution of this appeal. Harboways claim Sunday is preparing to build a road along the 30 foot easement. This Opinion renders the motion for an injunction moot.
STANDARD OF REVIEW
¶17 We review the findings of a district court sitting without a jury to determine if they are clearly erroneous. Tomlin Enters., Inc. v. Althoff, 2004 MT 383, ¶ 12, 325 Mont. 99, ¶ 12, 103 P.3d 1069, ¶ 12. We will consider the findings to be clearly erroneous if they are not supported by substantial credible evidence, if the district court misapprehended the effect of the evidence, or if a review of the record leaves us with the definite and firm conviction that a mistake has been committed. Tomlin, ¶ 12. We review a district court’s conclusions of law for correctness. Tomlin, ¶ 12.
DISCUSSION ISSUE ONE
¶18 Did the District Court err in concluding that Sunday does not have an easement for a road across Harboways’ property?
¶19 The District Court specifically found credible a licensed engineer and surveyor presented by Harboways. He testified that no visible road existed at the times claimed by Sunday. The District Court also considered testimony concerning what roads and trails did exist, examined maps of the area, and testimony to the effect that the road claimed by Sunday never existed. The District Court also considered the witnesses and evidence presented by Sunday. It found that at least some of the testimony of Sunday’s witnesses was inaccurate as to the time of use, extent of use, and location of the road at issue. After reviewing conflicting evidence, the District Court found as a matter of fact that at the various times that Gist and Heishman conveyed the property traversed by the Alleged Road, there was no visible road in existence.
¶20 The essence of Sunday’s argument on appeal is that the District Court’s findings of fact are clearly erroneous as it ignored the testimony of several witnesses that the Alleged Road was visible and in use when Gist and Heishman conveyed it and reserved an easement for visible roads. The evidence is indeed conflicting. And, if Donald Harboway’s testimony is taken out of context as urged by Sunday, it could be said that he admitted that there was a trail across his property at one time. However, we conclude that the District Court’s findings are not clearly erroneous. They are supported by substantial credible evidence, the District Court did not misapprehend the effect of the evidence, and we are not left with the definite and firm conviction that a mistake has been committed. Tomlin, ¶ 12.
¶21 A party claiming an easement by prescription must prove each necessary element by clear and convincing evidence. See Brumit v. Lewis, 2002 MT 346, ¶ 15, 313 Mont. 332, ¶ 15, 61 P.3d 138, ¶ 15. Similarly to Sunday’s claim that a visible easement existed, the District Court examined the conflicting evidence presented concerning the Alleged Road. This evidence outlined the history of the property both before and since its acquisition by Harboways. Based upon this review, the District Court found that neither Sunday, nor any of his predecessors in interest, established a prescriptive easement on any of the three tracts now owned by Harboways prior to the time they purchased it. Further, the District Court found that after they acquired the land, Harboways zealously protected it and routinely refused others access, other than for a limited purpose with their permission. We conclude that these findings by the District Court are not clearly erroneous. Tomlin, ¶ 12.
ISSUE TWO
¶22 Did the District Court err in concluding that an easement existed for a road around the perimeter of a part of Harboways’ property?
¶23 Harboways contend that the District Court erred in its Conclusion of Law No. 9 that the Gist to Valerie deed created a 30 foot easement surrounding Parcel C, as this conclusion is contrary to this Court’s decision in Loomis v. Luraski, 2001 MT 223, 306 Mont. 478, 36 P.3d 862. They also claim that any such easement would not benefit Sunday.
¶24 Loomis is inapposite. In Loomis, we rejected an attempt by landowners to establish an easement which was not within their chain of title. Since the reservation was outside their chain of title, we determined that these landowners could not enforce it. Loomis, ¶¶ 28-30. However, in this case, Gist, who reserved the easement, is in Sunday’s chain of title. Thus, the rational of Loomis does not apply. However, Harboways are correct that Sunday has no right to cross their land using such easement.
¶25 Sunday’s property does not abut the easement in question. When Gist reserved an easement across Parcel C, he created a dominant tenement which was his remaining land, and Parcel C, which was burdened with the easement, became the servient tenement. However, at the time Gist conveyed Parcel D to Sunday’s predecessors, the Scotts, he had already conveyed Parcel E to Darrahs, and he reserved no easement across it. There is nothing in the record which shows that Sunday can cross Parcel E. An easement requires more than a burden on the servient tenement. It must be substantially beneficial to the dominant tenement. See Murphy v. Kerr (8th Cir. 1925), 5 F.2d 908, 911; 28A C.J.S. Easements § 6 (1996). There is no easement as far as Sunday’s land is concerned, because an easement requires a dominant tenement. See Burlingame v. Marjerrison (1983), 204 Mont. 464, 469, 665 P.2d 1136, 1139; § 70-17-103, MCA. While we express no opinion as to whether the 30 foot easement exists for the benefit of any other successor landowners to Gist, Sunday’s land is not a dominant tenement with the benefit of such easement.
ISSUE THREE
¶26 Are Harboways entitled to attorney fees on appeal?
¶27 Harboways ask this Court to award them attorney fees on appeal, arguing that Sunday failed to offer “anything substantial or even reasonable in support of [his] appeal.” See Rule 32, M.R.App.P.; Ponderosa Pines Ranch, Inc. v. Hevner, 2002 MT 184, ¶¶ 35-36, 311 Mont. 82, ¶¶ 35-36, 53 P.3d 381, ¶¶ 35-36. In Ponderosa Pines Ranch, the district court concluded that Cherie Hevner’s arguments were not well grounded in fact, and she made the same arguments to this Court. Ponderosa Pines Ranch, ¶ 35. In the present case, while Sunday made the same arguments on appeal that he made in the District Court, these arguments are supported by facts. Both sides presented evidence which the District Court had to weigh. While we affirm the District Court’s Order, in this instance we determine it is not appropriate to sanction Sunday for exercising his right to appellate review.
CONCLUSION
¶28 We affirm the District Court’s Order. Sunday owns no easement across Harboways’ land. We decline to award Harboways attorney fees. Harboways’ motion for an injunction is denied as moot.
CHIEF JUSTICE GRAY and JUSTICE COTTER concur.
The transcript of the trial reveals that Cheryl J. Wallinder (Wallinder) is deceased, but her name still appears in the title of this action. Mr. Sunday is the only appellant.
|
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Plaintiffs Denise Kunst (Kunst) and Charla Erpenbach (Erpenbach) (collectively “Plaintiffs”) appeal from the order of the District Court for the Eighteenth Judicial District, Gallatin County, denying their post-trial motion for attorney’s fees and costs. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
¶2 The issues raised on appeal are as follows:
¶3 1. Did the District Court err in denying Plaintiffs’ bill of costs as untimely?
¶4 2. Did the District Court err in denying Plaintiffs’ request for attorney’s fees?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Erpenbach, a tenant, and Kunst, her overnight guest, suffered carbon monoxide poisoning due to a furnace leak while staying at an apartment rented from Defendants Charles Pass and Shirley Pass. Plaintiffs filed a four-count complaint against Defendants. The caption of the first count alleged general negligence, and paragraph seven of that count stated that Plaintiffs were bringing that claim pursuant to § 27-1-701, MCA, and the Residential Landlord and Tenant Act, § 70-24-303(l)(d), MCA (the “Act”). The second count alleged breach of warranty of habitability and the third count alleged strict liability. Both of those counts also referenced the Residential Landlord and Tenant Act, § 70-24-303, et seq., MCA. Finally, the fourth count alleged res ipsa loquitur. While that count did not reference the Act, it incorporated by reference every allegation contained within the first three counts. Among the various damages requested, Plaintiffs requested costs of the suit and any other relief the court deemed just and proper.
¶6 The case proceeded to a jury trial on August 20,1996. After the presentation of the evidence, the Plaintiffs moved for a directed verdict on the liability issue pursuant to the Act. The presiding District Court Judge Larry Moran granted their motion and held that the jury would consider only the amount of damages to be assessed. At that same hearing, the Plaintiffs also requested costs and attorney’s fees pursuant to the Residential Landlord and Tenant Act. However, the court reserved its decision on the applicability of that Act and the attorney’s fees issue until the conclusion of the trial.
¶7 The jury returned a verdict for Plaintiffs on August 22, 1996, awarding them each $5,000 in damages. Plaintiffs filed a post-trial motion for attorney’s fees and costs on September 10, 1996. On that same date, the District Court formally entered judgment in the case. Subsequently, on December 6,1996, the District Court held a hearing on the issue of costs and attorney’s fees, and took the matter under advisement.
¶8 Before he had decided Plaintiffs’ motion, District Court Judge Moran retired on December 31, 1996. The case was thus reassigned to District Court Judge Mike Salvagni, who reheard the motion on February 14, 1997. On March 21, 1997, the court issued an order denying Plaintiffs’ request for both costs and attorney’s fees. It held that Plaintiffs’ motion for costs was untimely pursuant to § 25-10-501, MCA. The court also held that the request for attorney’s fees was untimely, because Plaintiffs had not placed Defendants on notice of a claim for attorney’s fees until after the court directed a liability verdict. Finally, it held that the Residential Landlord and Tenant Act did not apply, because the Plaintiffs had not limited their cause of action to a violation of that statute, and Plaintiffs had prevailed in the directed verdict solely under the general theory of negligence. Plaintiffs appeal.
ISSUE ONE
¶9 Did the District Court err in denying Plaintiffs’ bill of costs as untimely?
¶10 We review a district court’s conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶11 The law requires a prevailing party to file the bill of costs within five days after the jury renders its verdict. Section 25-10-501, MCA, states:
Bill of costs. The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, his attorney or agent, or the clerk of his attorney, stating that to the best of his knowledge and belief the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.
¶12 In this case, the jury verdict was signed and filed on August 22,1996. Plaintiffs filed their motion to tax costs with a memorandum of costs nineteen days later on September 10, 1996. Even allowing Plaintiffs two additional days for the weekend and three additional days for mailing, the Plaintiffs failed to file their bill of costs within five days of the jury verdict. The District Court thus properly denied Plaintiffs’ bill of costs as untimely.
¶13 Plaintiffs argue that at the August 22,1996 hearing where the court granted Plaintiffs a directed verdict, District Court Judge Moran also granted them an extension of the five-day time limit when it ordered that their bill of costs should be filed within twenty days after the conclusion of trial. But the transcript of the hearing contains no discussion about an enlargement of the time for filing the bill of costs, and the record does not reflect that such an order was ever entered. At the December 6,1996 hearing on the motion for attorney’s fees, Judge Moran himself did not specifically recall ever making such an order, although he conceded that it “sounds like something the Court would do,” and stated that he was “not going to dispute” that he gave the Plaintiffs twenty days to file that document.
¶14 Notwithstanding the court’s concession that it might have allowed the Plaintiffs’ an additional twenty days, the bill of costs is untimely. The five-day time limit provided for in the statute is mandatory: a party “must” file a memorandum of costs within five days after the verdict is entered. Section 25-10-501, MCA. Plaintiffs were thus tardy in filing that document.
¶ 15 Plaintiffs next contend that the five-day limit did not begin to run until the District Court entered the judgment on September 10, 1996. Because they filed their bill of costs that same day, they maintain that they were thus well within the statutory time period. But it is well-settled that where a case involves a jury trial, as opposed to a bench trial, the time period begins to run on the day following the jury verdict and not on the entry of the judgment. R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278, 288-89, 777 P.2d 338, 344. In Grover, this Court noted that in a bench trial, the judge has more latitude than a jury as to when it will render its decision. In such a case, the time period is computed from the day the court enters its judgment, and not when the court orally announces its decision. The oral announcement of a decision, which may be subject to changes when the court finally enters the judgment, is not comparable to the jury rendering its verdict. Thus, in a jury trial, the time limit begins to run on the day after the jury enters its verdict. Grover, 238 Mont. at 288-89, 777 P.2d at 344. See also Rocky Mountain Enterprises, Inc. v. Pierce Flooring Carpet Barn (1997), [286 Mont. 282], 951 P.2d 1326, 1337 (“[T]o claim costs under § 25-10-501, MCA, the plaintiffs had five days from the date of the jury verdict to file and serve upon the adverse party a verified memorandum of costs.”)
¶16 Plaintiffs maintain that this case should be treated as a bench trial for purposes of computing the time limitations, because the District Court granted Plaintiffs a directed verdict on the liability issue. Even so, however, the case still involved a jury trial and the jury rendered a verdict on the damages issue. When the court granted the directed verdict, it did not serve as the trier of fact, but instead directed liability as a matter of law.
¶ 17 We hold that the District Court did not err in denying Plaintiffs’ bill of costs as untimely.
ISSUE TWO
¶18 Did the District Court err in denying Plaintiffs’ request for attorney’s fees?
¶ 19 As previously stated, 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, 271 Mont. at 469, 898 P.2d at 686.
¶20 In denying the Plaintiffs’ motion for attorney’s fees, the District Court stated that the Defendants’ “liability was limited to the general theory of negligence as Judge Moran concluded.” After considering the allegations of the complaint, the directed verdict, and the jury verdict on damages, the court reasoned that Plaintiffs prevailed solely under a general theory of negligence and not under the Residential Landlord and Tenant Act, § 70-24-101, MCA, et seq. It thus concluded that the attorney fees provision of that Act did not apply and denied Plaintiffs’ motion.
¶21 We do not agree. In rendering the directed verdict, Judge Moran did not conclude that “liability was limited to the general theory of negligence.” Instead, he specifically left open the question as to whether the Residential Landlord and Tenant Act applied, and if so, whether Plaintiffs were entitled to attorney’s fees under that statute. As he stated:
Well, that’s a matter that will have to be handled after the jury trial is over. I haven’t at this time made any determination about whether the Landlord/Tenant Act applies to this case, nor whether my ruling is based upon the Landlord/Tenant Act. So when we get around to that issue, you’re going to have to bear the burden of showing the applicability of the Landlord/Tenant Act, as well as your entitlement to attorney’s fees under that Act.
Before Judge Moran could rule on that issue, he retired. Upon review, we conclude that liability was not limited to the general theory of negligence, but also arose under the Act, § 70-24-101, MCA, et seq.
¶22 The Residential Landlord and Tenant Act provides in part:
(1) A landlord shall:
(b) make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;
(d) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord;
Section 70-24-303, MCA.
¶23 In this case, every single count of Plaintiffs’ complaint references or incorporates by reference the Residential Landlord and Tenant Act. Although the first count is captioned as “general negligence,” the count specifically states that it is also brought pursuant to the Act, § 70-24-303(l)(d), MCA. When the Plaintiffs moved for a directed verdict, they did not do so on general negligence grounds, but instead contended that the Defendants violated the Act. As the transcript of the hearing on that motion reveals:
[Plaintiffs’ attorney]: I’d like — at this time, I would like to move for a directed verdict on behalf of the Plaintiffs in this case. As reflected in our proposed jury instructions, as reflected in the law, referenced in our trial brief, I think that this case clearly falls under the Montana Residential Landlord & Tenant Act and, in particular, Section 70-24-303(l)(d), which, in part, provides, “A landlord shall maintain in good and safe working order and condition all heating, ventilating and other facilities and appliances supplied or required to be supplied by him.”
Based upon that, based upon what are, in effect, the admissions at trial of the Defendants, the acknowledged responsibility on their part, I believe that it would be appropriate to have a directed verdict on this issue.
¶24 When Judge Moran granted Plaintiffs’ motion for a directed verdict, he held that as a matter of law the Defendants failed to keep the heating system in a good and safe working order. He stated:
[T]he owners of the premises were well aware that they had a duty to inspect the premises on a routine basis, that duty and warning or admonition or advice that had been rendered first in the inspection report. And I think that that is a matter that repeats itself down through every year after the inspection report, that they should check out these matters on an annual basis.
The evidence is clear that they never checked out the premises. They never looked at the heating system. They never did anything to inspect the heating system, either personally or through the retaining services of an expert to do that.
We have then the testimony of Mr. Doug Schnell, who testifies that when he got to the premises and looked at the thing, that the boiler — that it was in a state and a condition that an inspection of it would have — he believes would have precluded the boiler ever to have gotten into that condition, so that there could have been the leaking of gas fumes resulting in carbon monoxide poisoning to the Plaintiffs.
The defendant has essentially come to court with no evidence that would counter that, either in weight or quantity. I feel that this is a proper case to direct a verdict of liability on behalf of the Plaintiffs, and I’ll do that.
¶25 Although the court did not expressly hold that the Defendants violated the Act, the undisputed facts that form the very basis of his holding indicate that as a matter of law the Defendants breached the duty imposed by the Act to “make repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition,” and “maintain in good and safe working order and condition all ... heating ... facilities ... supplied by the landlord.” Section 70-24-303(b),(d), MCA. We thus hold that the Defendants breached their statutory duties pursuant to the Residential Landlord and Tenant Act.
¶26 Having held that the Defendants breached the duties imposed by the Act, the next question is whether this breach exposed Defendants to liability for damages and for attorney’s fees. Defendants contend that an award is not warranted because there is no precedent for a personal injury plaintiff to receive attorney’s fees under the Act. Defendants are incorrect. In Calder v. Anderson (1996), 275 Mont. 273, 911 P.2d 1157, we addressed the circumstances under which a landlord could be held liable for personal injuries caused to a tenant for failing to comply with the Act. We stated that because “§ -303 of the Act was obviously intended by the legislature to be for the benefit and safety of tenants, a landlord’s failure to comply with the statute is negligent per se.” Calder, 275 Mont. at 278, 911 P.2d at 1160. We also repeated the well-settled holding that:
The violation of statutes is negligence as a matter of law when the purpose of the statute is to protect a class of persons, the plaintiff is a member of that class, and the defendant is a person against whom a duty is imposed. The purpose of the statute also must be to protect against the kind of injury received by the plaintiff.
Calder, 275 Mont. at 278, 911 P.2d at 1160 (citing Nehring v. LaCounte (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333) (internal citations omitted).
¶27 In this case, Defendants, as landlords, were members of the class on whom a duty was imposed; carbon monoxide poisoning from the faulty heating system was the type of injury that the statute was designed to prevent; and Plaintiff Erpenbach, a tenant, was a member of the class the Act was designed to protect. See Calder, 275 Mont. at 279, 911 P.2d at 1160. The Defendants, however, contend that Plaintiff Kunst has no standing to enforce remedies under the Residential Landlord and Tenant Act because she was only an overnight guest of Defendant Erpenbach and was not a tenant. The Defendants cite no authority and provide no analysis to support this position.
¶28 One Montana case has touched upon the issue of a landlord’s liability to third persons under the Act. Rennick v. Hoover (1980), 186 Mont. 167, 606 P.2d 1079, overruled on other grounds by Richardson v. Corvallis Pub. School Dist. (1997), [286 Mont. 309], 950 P.2d 748. In Rennick, a guest of a tenant brought suit against the landlords after he fell on an icy cement slab in the common area of the apartment building. Rennick, 186 Mont. at 169, 606 P.2d at 1080. This Court declined to address the landlord’s statutory liability under the Residential Landlord and Tenant Act, because the plaintiff was not a tenant. This Court stated:
In Montana, a landlord owes a duty to the tenant to “keep all common areas of the premises in a clean and safe condition.” Section 70-24-303, MCA. However, this appeal does not involve an injury to a tenant. ...
Rennick, 186 Mont. at 170, 606 P.2d at 1081. In making that statement, the Court provided no further analysis and it is not clear whether the issue of a landlord’s liability to third persons under the Act was actually an issue on appeal. The statement constitutes dicta only and was not the holding of the Court. We thus view the issue of whether a guest of a tenant is a member of the class that the Act was intended to protect to be one of first impression in Montana.
¶29 Upon review, we conclude that pursuant to Montana’s Residential Landlord and Tenant Act, a landlord’s liability is not limited to tenants, but also extends to third persons who may foreseeably be on the premises. Indeed, the Act expressly extends its remedies to any person who is aggrieved when the landlord breaches the duties embodied in § 70-24-303, MCA. Specifically, § 70-24-401, MCA, states that the “remedies provided by this chapter must be administered so that an aggrieved party may recover appropriate damages.” The comment to the corresponding section of the Uniform Residential Landlord and Tenant Act, from which Montana’s Act was substantially adopted, explains that “[t]he use of the words ‘aggrieved party’ is intended to indicate that in appropriate circumstances rights and remedies may extend to third persons under this Act or supplementary principles of law. ...” Uniform Residential Landlord and Tenant Act, 7B Uniform Laws Annotated section 1.105(a).
¶30 In our view “aggrieved party” includes third persons foresee-ably on the property, such as the tenant’s guest, who suffers injuries when the landlord breaches the duties embodied in the Act. This Court is not alone in its interpretation of the Act. Based upon precisely the same reasoning, the Oregon Supreme Court has also held that a tenant’s guest has a cause of action against a landlord pursuant to Oregon’s Residential Landlord and Tenant Act for injuries resulting from the landlord’s violation of its statutory duties. Humbert v. Sellars (Or. 1985), 708 P.2d 344, 347. The pertinent portions of Oregon’s Act are substantially identical to Montana’s Act. Upon interpreting the meaning of “aggrieved party” in the Oregon Act, the Oregon Supreme Court similarly held:
An aggrieved party includes a tenant’s guest who is injured by a landlord’s failure to maintain the premises in a habitable condition, if the tenant herself could recover damages for the same injury. The measure of a “habitable condition” may be what is habitable by those who reside in the premises, but when the measure is breached, ORS 91.725 recognizes that others may suffer the consequences. The [tenant’s guest] therefore has a cause of action if she is injured because of the [landlord’s] breach of the act.
Humbert, 708 P.2d at 347.
¶31 In addition to the term “aggrieved party” contained within the remedies section of the Act, a review of § 70-24-303, MCA, itself also leads us to conclude that the duties imposed by the Act extend to third persons such as a guest of a tenant. The comment to the section of the Uniform Residential Landlord and Tenant Act which corresponds to § 70-24-303, MCA, indicates that the standards of habitability embodied in that section extend beyond simply the contractual rights between a landlord and a tenant. Instead, the standards involve a matter of public police power. The comment states:
Vital interests of the parties and public under modern urban conditions require the proper maintenance and operation of housing. It is thus necessary that minimum duties of landlords and tenants be set forth.
Standards of habitability dealt with in this section are a matter of public police power rather than the contract of the parties or special landlord-tenant legislation. This section establishes minimum duties of landlords consistent with public standards.
Uniform Residential Landlord and Tenant Act, 7B Uniform Laws Annotated section 2.104.
¶32 The fact that a person does not enjoy a contractual landlord/tenant relationship with the landlord is thus not dispositive. Rather, what is at issue is whether the interests of public standards require that the standards of habitability extend not only to tenants but to third persons in certain circumstances. We conclude that they do. As evidence of these standards, we turn to other areas of the law that govern the landlord’s duty. For example, in Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491, we held that the status of the injured party does not affect a property owner’s general duty of care. Limberhand, 218 Mont. at 140, 706 P.2d at 496. Instead, a landlord’s duties under § 27-1-701, MCA, extend to all persons foreseeably on the premises, including social guests of a tenant. Limberhand, 218 Mont. at 145, 706 P.2d at 498, 499. Although the Residential Landlord and Tenant Act establishes minimum duties of the landlord, nothing in the Act limits those duties only to a tenant, and indeed we conclude that the public interests require those duties to extend to any person foreseeably on the premises. In short, we conclude that both Plaintiffs were members of the class the Act was designed to protect, and Defendants’ liability arose under the Residential Landlord and Tenant Act, § 70-24-303, MCA.
¶33 Because liability arose under the Act, the Defendants may also be required to pay attorney’s fees. The Act provides that reasonable attorney’s fees may be awarded to any person who prevails in an action “arising under this chapter.” Section 70-24-442(1), MCA. In this case, both Plaintiffs prevailed in an action arising under the Act. Hence, attorney’s fees are an appropriate award.
¶34 Defendants nonetheless urge this Court to affirm the District Court’s order denying attorney’s fees for an additional reason. They point to Rule 8(a), M.R.Civ.P., which requires the complaint to contain “a demand for judgment for the relief the pleader seeks,” and contend that the District Court correctly held that Plaintiffs did not put them on notice in their complaint, their pretrial order or their trial brief that they sought attorney’s fees. They maintain that the first time Plaintiffs raised a claim for attorney’s fees was after the court granted a directed verdict on liability, and insist that the failure to present this claim earlier bars their claim entirely. We reject Defendants’ position for several reasons.
¶35 First, it is well settled that Montana’s rules of civil procedure, including Rule 8(a), M.R.Civ.P., are notice pleading statutes. Mysse v. Martens (1996), 279 Mont. 253, 266, 926 P.2d 765, 773; Butte Country Club v. Metropolitan Sanitary & Storm Sewer Dist. No. 1 et al. (1974), 164 Mont. 74, 77, 519 P.2d 408, 409. Pursuant to Rule 8(a), M.R.Civ.P., a complaint must put a defendant on notice of the facts the plaintiff intends to prove; the facts must disclose the ele ments necessary to make the claim; and the complaint must demand judgment for the relief the plaintiff seeks. Mysse, 279 Mont. at 266, 926 P.2d at 773; Rule 8(a), M.R.Civ.P.
¶36 In this case, the complaint does not specifically request attorney’s fees. However, the complaint itself was brought pursuant to the Residential Landlord and Tenant Act. As pointed out earlier, the first count specifically states that it was brought pursuant to § 70-24-303(1)(d), MCA, and both the second and third counts specifically reference that Act. The fourth count incorporates by reference each allegation of the other counts, including the Act. Both Plaintiffs and Defendants reference the Act several times in the pretrial order, and the Plaintiffs’ trial brief addresses the Plaintiffs’ claim that the Defendants were hable under the Act for failing to properly maintain the heating system. The Act itself provides that attorneys fees may be awarded to the prevailing party in an action “arising under this chapter.” Section 70-24-442(1), MCA. Accordingly, although the Plaintiffs did not specifically request attorneys fees, it should have been apparent to Defendants that if Plaintiffs prevailed, an award of attorneys fees was possible. Furthermore, in the complaint the Plaintiffs requested that they be awarded “other and further relief as the Comet may deem just and proper.” This Court liberally construes pleadings, and under this demand for general relief, the court could grant Plaintiffs any relief to which they were entitled.
¶37 Second, any claim by the Defendants of unfair surprise or that they had no opportunity to defend themselves lacks merit. The Defendants had a full opportunity to file objections to the request for attorneys fees and to be heard at oral argument as to why the Plaintiffs should not receive such an award. We conclude that the Defendants did indeed have notice and an opportunity to defend themselves.
¶38 Finally, attorney’s fees may be awarded only to a “prevailing party,” which “means the party in whose favor final judgment is rendered.” Section 70-24-442(2), MCA. It was thus entirely proper and necessary for Plaintiffs to wait until after the court had granted them a directed verdict to file a motion for attorneys fees. See § 70-24-442(1), MCA. Plaintiffs immediately requested attorney’s fees at the hearing where the court granted a directed verdict, but the court stated it would not consider the motion until a later date after the jury had rendered its verdict. Indeed the court conceded that it probably gave them twenty days after the verdict to file their motion. Montana does not have a statute that provides for a manda tory time limit for filing such a motion, such as the statute that requires the bill of costs to be filed within five days of the verdict. Section 25-10-501, MCA. In sum, we hold that the Plaintiffs’request for attorney’s fees was timely.
¶39 For the foregoing reasons, we hold that the District Court erred in denying Plaintiffs’ request for attorney’s fees. However, the award of attorney’s fees still remains within the court’s discretion. Section 70-24-442(1), MCA. Because the Plaintiffs’ request for attorney’s fees was denied for legal reasons, the court did not exercise its discretion. We thus remand this issue to the District Court for a determination as to whether to award attorney’s fees, and if so, for what amount.
¶40 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
JUSTICES TRIEWEILER, LEAPHART, REGNIER and NELSON concur.
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶ 1 Appellant Jeffrey Dean Winterrowd (Winterrowd) appeals from the order of the Montana Eighth Judicial District Court, Cascade County, requiring him to pay the costs of jury selection and prosecution and the order nunc pro tunc sentencing him to six months imprisonment for his misdemeanor theft conviction. We reverse and vacate the orders of the District Court.
Appellant raises the following issues:
¶2 1. Did the District Court err in ordering Winterrowd to pay the costs of jury selection and prosecution?
¶3 2. Did the District Court err in sentencing Winterrowd on a misdemeanor theft conviction by an order nunc pro tunc?
Factual and Procedural Background
¶4 In February 1995, Winterrowd was charged by information with felony burglary and misdemeanor theft. After determining that Winterrowd was indigent, the District Court appointed counsel from the public defender’s office to represent him. In August 1995, the public defender moved to withdraw, stating that he had been informed that Winterrowd had received a $10,000 settlement from the Social Security Administration and was no longer indigent. Winterrowd’s counsel stated that the public defender’s office would not reassign counsel. No hearing was held, and the District Court granted the motion.
¶5 The District Court continued the trial from December 13, 1995 to February 28, 1996 to give Winterrowd the opportunity to retain counsel. On February 20, 1996, Winterrowd asked the court to continue the trial because he had not been able to retain counsel. He stated that he had not yet received his Social Security settlement but expected to receive it on or about March 11. The State opposed this motion, arguing that Winterrowd had not demonstrated due diligence and that his claim that he would receive the settlement on March 11 was unsupported by documentation.
¶6 The District Court never ruled on Winterrowd’s motion. At the start of trial on February 28, Winterrowd again moved the District Court to continue, and the court denied the motion. The trial proceeded through voir dire, but, following a break, the court granted Winterrowd’s motion to continue and excused the jurors. The District Court ordered Winterrowd to pay the costs incurred in summoning jurors and in prosecuting him.
¶7 Winterrowd obtained counsel, who filed a notice of appearance on March 12 and moved the court to reconsider its order requiring Winterrowd to pay costs. The court denied the motion, and the case proceeded to trial on August 27,1996. Ajury found Winterrowd guilty of burglary and theft. The District Court sentenced Winterrowd to ten years in the Montana State Prison on the felony burglary conviction. The court did not sentence him on the misdemeanor theft conviction.
¶8 On October 17, 1996, Winterrowd filed a pro se notice of appeal with this Court. On December 30, 1996, the District Court issued an order nunc pro tunc, noting that it had failed to impose sentence on the misdemeanor theft conviction and sentencing Winterrowd to six months, suspended, to be served concurrently with the sentence for burglary. Winterrowd, now represented by an appellate public defender, appeals from the orders of the District Court.
Discussion
¶9 1. Did the District Court err in ordering Winterrowd to pay the costs of jury selection and prosecution?
¶10 We review a district court’s discretionary rulings in criminal cases for abuse of discretion. State v. Sullivan (1994), 266 Mont. 313, 880 P.2d 829. The State and Winterrowd agree that the District Court abused its discretion by ordering Winterrowd to pay the costs of jury selection and prosecution. We also agree.
¶11 The District Court granted the public defender’s motion to withdraw based on an unsupported claim that Winterrowd had received a settlement from the Social Security Administration and refused Winterrowd’s request for a continuance. Winterrowd informed the court that he was unable to retain new counsel until he received his settlement on March IT and, in fact, did retain counsel on March 12. The District Court continued the February 28 trial only after requiring Winterrowd to proceed pro se through voir dire and then assessed to him the costs of jury selection and prosecution. We hold that the District Court erred in ordering Winterrowd to pay costs, and we vacate the court’s order.
¶12 2. Did the District Court err in sentencing Winterrowd on a misdemeanor theft conviction by an order nunc pro tunc?
¶13 In this case, the District Court failed to sentence Winterrowd on his misdemeanor theft conviction, in either open court or the written judgment. Four months later, the District Court issued an order nunc pro tunc sentencing Winterrowd to six months imprisonment, the maximum sentence for misdemeanor theft, to run concurrently with his sentence on the burglary conviction.
¶ 14 It is within a district court’s power to enter an order nunc pro tunc modifying or amending a judgment to remedy certain types of clerical errors. State ex rel. Kruletz v. District Court (1940), 110 Mont. 36, 98 P.2d 883. However, the purpose of such an order is to make the record reflect what was actually decided. Dahlman v. District Court (1985), 215 Mont. 470, 698 P.2d 423. Therefore, the error “must be apparent on the face of the record to insure that the correction does not in effect set aside a judgment actually rendered nor change what was originally intended.” State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474 (citing Kruletz, 98 P.2d at 885).
¶15 The State contends that it was clear from the proceedings that the District Court intended to sentence Winterrowd to six months on the theft conviction, analogizing this case to Owens, 748 P.2d at 473. In Owens, the sentencing court failed to designate the defendant as a dangerous offender in the written sentencing order, but made a specific finding on the record in open court that the defendant was a dangerous offender. Owens, 748 P.2d at 474-75. Subsequently, in what was deemed a nunc pro tunc order by this Court, the court amended the sentence to include this designation. Owens, 748 P.2d at 474. We held that “[i]t is clear from this Court’s review of the record that the District Court intended to designate the defendant as dangerous” and upheld the district court’s order. Owens, 748 P.2d at 475.
¶16 By contrast, in this case, not only was the sentence on the theft conviction omitted from the written sentencing order, but neither the District Court nor the parties ever discussed it at the sentencing hearing. The State contends that Winterrowd should have known the maximum term to which he could be sentenced and that “it is customary for the sentencing court to impose a six-month concurrent sentence on a misdemeanor offense whenever a prison term is imposed on a felony.” The State argues that, therefore, “it should be no surprise” to Winterrowd that the District Court sentenced him to six months. Contrary to the State’s assertion, there is nothing in the record that suggests what sentence the court intended to impose, and we shudder at the suggestion that a criminal defendant should expect a maximum sentence as “customary.”
¶17 We hold that it was an abuse of discretion for the District Court to attempt to correct, by nunc pro tunc order, its failure to sentence Winterrowd on the misdemeanor theft conviction.
¶18 Therefore, we reverse and vacate the court’s December 30, 1996 order and sentence.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, REGNIER and TRIEWEILER concur.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶ 1 Eugene A. Pollack (“Pollack”) appeals from the judgment of the Fourth Judicial District Court, and from the order denying his motion to dismiss the charges against him for lack of speedy trial. We affirm.
¶2 The only issue on appeal is whether the District Court erred when it failed to dismiss the charges against Pollack for lack of speedy trial pursuant to § 46-13-401(2), MCA.
BACKGROUND
¶3 On April 14, 1996, in Missoula County Justice Court, Pollack was charged with driving under the influence of alcohol and with driving without liability insurance. On April 15, 1996, he appeared in court and pled not guilty.
¶4 An omnibus hearing was originally set for June 6,1996. On the date of the scheduled hearing, attorney Bruce Hussey appeared on behalf of Pollack and requested a continuance. According to the District Court’s opinion, Hussey had informed the court that another attorney, Mark Jones, would be representing Pollack and he therefore requested the continuance to allow Jones the opportunity to appear on Pollack’s behalf. The court granted his request, and the omnibus hearing was continued until July 11, 1996.
¶5 On June 6, 1996, the State also moved to amend the citation against Pollack to correct a technical mistake that occurred when the statute numbers with which Pollack was charged were accidentally transposed. The original citation mistakenly charged Pollack with driving without proper insurance in violation of § 61-6-304(1), MCA, which is the penalty provision for driving without insurance. The State requested the citation be amended to charge Pollack with the violation of § 61-6-301(4), MCA.
¶6 On June 10¡ 1996, Jones filed a notice of appearance as the attorney of record for Pollack and a demand for discovery. The State responded to the discovery demand on June 13, 1996.
¶7 At the rescheduled omnibus hearing held July 11, 1996, the court set a trial date for November 8, 1996, which was six months and 24 days after Pollack had entered his pleas of not guilty. On October 23, 1996, Pollack filed a motion to dismiss the charges against him on the ground that the trial was not scheduled to occur within six months of his guilty plea as required by § 46-13-401(2), MCA. The Justice Court denied the motion, and Pollack pled guilty to both charges, but reserved his right to appeal the adverse determination of his motion to dismiss.
¶8 Pollack appealed to the Fourth Judicial District Court, Missoula County. The District Court affirmed the Justice Court’s order denying the motion to dismiss. It held that the delay in the trial past the six-month time limit was caused by Pollack’s request to continue the omnibus hearing, which resulted in good cause for the delay. Pollack appeals the District Court’s decision.
DISCUSSION
¶9 We review the District Court’s legal conclusion to determine whether it is correct. State v. Fitzgerald (1997), 283 Mont. 162, 165, 940 P.2d 108, 110 (citing State v. Mantz (1994), 269 Mont. 135, 137, 887 P.2d 251, 253).
¶10 Pollack argues that § 46-13-401(2), MCA, requires that his case be dismissed because the court scheduled his trial to occur more than six months after he entered his guilty plea. Section 46-13-401(2), MCA, provides:
After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.
The State, on the other hand, contends that good cause to the contrary is shown, because the trial date was delayed due to Pollack’s request for a continuance of the omnibus hearing. We agree.
Ill This Court has explained that it will dismiss a misdemeanor charge pursuant to § 46-13-401, MCA, only if two conditions are met: (1) the defendant has not asked for a postponement; and (2) the State has not shown good cause for the delay. Fitzgerald, 283 Mont. at 165, 940 P.2d at 110 (citing State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903).
¶12 In Fitzgerald, we held that “any pretrial motion for continuance filed by a defendant which has the incidental effect of delaying the trial beyond the six month time limit could be said to ‘postpone trial’ for purposes of § 46-13-401(2), MCA.” Fitzgerald, 283 Mont. at 166-67, 940 P.2d at 111. In that case, the trial was delayed beyond the six-month time limit because the court had accommodated Fitzgerald by continuing the omnibus hearing on two occasions. Fitzgerald, 283 Mont. at 164, 940 P.2d at 109. This Court thus held that “good cause” existed and § 46-13-401(2), MCA, did not mandate dismissal. As we stated:
After these delays caused by Fitzgerald, the Justice Court cannot be expected to alter its schedule to ensure that the misdemeanor charge is tried within six months. A Justice Court must retain a measure of flexibility over scheduling to hear cases on its docket. As such, we determine that the trial date of March 26, 1996, fell within the “good cause to the contrary” exception of § 46-13-401(2), MCA.
Fitzgerald, 283 Mont. at 167, 940 P.2d at 111.
¶13 Similarly, in this case, the District Court found that the delay in the trial beyond the six-month time limit was due to Pollack’s request to continue the omnibus hearing. According to our holding in Fitzgerald, the trial date fell within the “good cause to the contrary” exception to § 46-13-401(2), MCA.
¶ 14 Pollack challenges the court’s factual finding that the delay was attributable to him. He argues that the State caused the delay by filing the motion to amend the citation. Pollack admits that the State’s motion, which was filed only to correct transposed numbers in the statutory cite, had “little, if any, effect upon the charges against him.” He nevertheless insists that he was required to request a continuance of the omnibus hearing in order to properly evaluate and respond to the motion. But Pollack did not advance this theory to the District Court. It is well-settled that a party may not change his theory on appeal from that presented to the district court. State v. Greywater (1997), 282 Mont. 28, 35, 939 P.2d 975, 979. We thus decline to address the merits of his argument. We hold that the District Court did not err when it failed to dismiss the charges against Pollack for lack of speedy trial pursuant to § 46-13-401(2), MCA.
¶15 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY and REGNIER concur.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an appeal from the Fourth Judicial District Court, Missoula County. On October 17, 1995, a jury found Defendant Alexander MacKinnon (MacKinnon) guilty of felony sexual assault of his step-daughter, M.G. On March 29, 1996, the District Court entered judgment against MacKinnon. From this judgment and certain evidentiary rulings, MacKinnon appeals. We affirm.
¶2 We restate the following issues raised on appeal:
¶3 1. Did the District Court abuse its discretion by allowing the State to present testimony concerning MacKinnon’s statements which he made on July 16, 1995, in the presence of the victim, M.G., M.G.’s mother and his ex-wife, Monica, as well as two church members, John and Coleen Contos?
¶4 2. Did the District Court abuse its discretion by riding that MacKinnon’s ex-wife, Monica, could not be cross-examined about prior sexual abuse of herself and her daughter, M.G.?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On May 1, 1995, an Information was filed with the Fourth Judicial District Court, Missoula County, charging MacKinnon with committing the offense of felony sexual assault, in violation of § 45-5-502, MCA (1993). The Information alleged that, in a continuing course of conduct over the previous four years, MacKinnon had knowingly subjected his nine-year-old step-daughter, M.G., to sexual contact without consent by rubbing her breasts and vaginal area. On May 10, 1995, MacKinnon pleaded not guilty to the charge, thereafter, a trial date was set to begin October 13, 1995. On May 22, 1995, M.G.’s mother, Monica, and MacKinnon were divorced.
¶6 In April 1995, Monica became active in the Missoula Christian Church (the Church) and became a member in June 1995. Thereafter, MacKinnon also became active in the Church, but he did not become a member until October 1995. The Church was formed in August 1994 in Missoula, Montana, as a branch of the same church located in Denver, Colorado. John Contos, Coleen Contos and Ken Edwards, witnesses in this action, moved to Missoula from Denver to help form the church and all have responsibilities within the church as group leaders. However, the Church is headed by an ordained minster who conducts church services and is licensed to perform marriages. As a part of its Bible-based teachings, the Church allows its members to confess their sins to one another, but no church member has the authority to formally forgive sins. Rather, the Church believes forgiveness only comes from God.
¶7 On July 16, 1995, after an evening church service conducted in a Missoula restaurant, which both Monica and MacKinnon had attended, Monica and M.G. encountered MacKinnon in the parking lot. An argument ensued concerning visitation of Monica’s and MacKinnon’s two boys. Thereafter, MacKinnon began talking to M.G. and apologizing to her, apparently to set things right with her so she would not have to testify at court proceedings. Concerned with the nature of this conversation, Monica suggested that they continue the conversation inside the restaurant in the presence of John and Coleen Contos. As a result of Monica’s suggestion, the conversation continued in the back of the lobby area of the restaurant with everyone sitting on chairs. Subsequently, on August 21,1995, a second conver sation took place at the home of John Contos involving MacKinnon, Monica, John Contos and Ken Edwards.
¶8 On October 12,1995, the State filed a memorandum in support of the use of statements made by MacKinnon in both the July 16,1995 and the August 21,1995 conversations. In response, MacKinnon filed a motion in limine and a motion to suppress concerning these statements and a related document. On October 13, 1995, prior to commencing jury selection, the District Court heard testimony and argument concerning these motions, and, thereafter, granted MacKinnon’s motion to suppress the document and his August 21, 1995 statements, but allowed testimony concerning his July 16, 1995 statements.
¶9 On October 16, 1995, a jury trial was held. During a break in the trial and outside the presence of the jury, the State moved the District Court to prevent MacKinnon from cross-examining Monica or M.G. concerning two prior incidents of sexual abuse, one involving sexual abuse of Monica by a family member when she was a child and the other involving sexual abuse of M.G. by her natural father when she was an infant. The State argued that testimony as to these two matters should not be allowed because this evidence would not be probative of Monica’s truthfulness and would be prejudicial and confusing to the jury. MacKinnon pointed out that, as agreed, he did not question M.G. as to these matters. However, MacKinnon argued that he was entitled to cross-examine Monica as to these matters under the confrontation clause of the federal and Montana constitutions to prove her lack of credibility by revealing any possible motive, prejudice or bias that Monica might have.
¶10 The District Court ruled that under Rules 403 and 608, M.R.Evid., MacKinnon could not cross-examine Monica as to these two matters to establish her motivation because there was no contradictory statement to tie into and because even if this evidence had some probative value it was greatly outweighed by its prejudicial effect. However, the court ruled that MacKinnon could present expert testimony concerning matters of child sexual abuse to assist the jury in evaluating M.G.’s testimony. Furthermore, the court agreed that MacKinnon could argue in closing as to Monica’s motive, bias, and prejudice based on other facts in evidence, such as M.G.’s reluctance to testify and Monica’s desire to divorce MacKinnon. MacKinnon chose not to present expert testimony and called no witnesses before resting his case. However, in closing argument, MacKinnon did point out the family’s troubled situation, Monica’s haste to report M.G.’s disclosures to the police as well as her haste to divorce MacKinnon.
¶11 On October 17, 1995, the jury returned a verdict of guilty to the charge of felony sexual assault against MacKinnon. Thereafter, the District Court conducted a sentencing hearing on March 6, 1996, and deferred MacKinnon’s imposition of sentence for six years, placing MacKinnon on probation subject to certain conditions. The District Court entered its written judgment on March 29, 1996. From this judgment and certain evidentiary rulings, MacKinnon appeals.
STANDARD OF REVIEW
¶12 Both issues MacKinnon raises on appeal concern the District Court’s evidentiary rulings made during his trial. We review a district court’s evidentiary rulings to determine whether the district court abused its discretion. State v. Anderson (1996), 275 Mont. 344, 347, 912 P.2d 801, 803 (citing State v. Pace (1995), 272 Mont. 464, 466, 901 P.2d 557, 559). A district court has broad discretion to determine whether evidence is relevant and admissible. Anderson, 275 Mont. at 347, 912 P.2d at 803. Therefore, absent a showing of abuse of discretion, we will not overturn a court’s evidentiary determination. Anderson, 275 Mont. at 347, 912 P.2d at 803.
DISCUSSION
¶13 At the outset, we note that MacKinnon’s appellate brief contains numerous assertions and exhibits which are not supported by or contained in the District Court record on appeal. Specifically, MacKinnon includes in his appendix to his appellate brief: Exhibit A (a motion and proposed order to dismiss this action prepared by the State but which was never filed); Exhibit B (a letter written by the State to Monica explaining the reason for dismissal); Exhibit D (a transcript of a taped interview with M.G. conducted by the Missoula County Sheriff’s Department); and Exhibit E (a photocopy of the cover of the book titled “Gilly’s Secret” along with a letter from Rashel Jeffrey, M.S.W., A.C.S.W., stating she loaned this book to M.G.). However, these documents (B, D and E) were not introduced as exhibits during trial and are not a part of the District Court record. Furthermore, although Exhibit F (a sexual offender evaluation) is referenced in the District Court’s minute entries of February 14, 1996, and March 6,1996, it is not included in the District Court record and the transcript of the sentencing hearing conducted on March 6, 1996, was not included with the trial transcript on appeal either.
¶14 Additionally, in his appellate brief, MacKinnon makes assertions concerning the book, “Gilly’s Secret,” which M.G. may have read, the results of two polygraph examinations, the sexual offender evaluation, Monica’s motives at the time of the July conversation, MacKinnon’s motivations and state of mind, and contacts between MacKinnon and Monica. None of these assertions are supported by the record. As the State points out, MacKinnon did not testify at the trial or sentencing hearing, and evidence concerning these assertions was not offered or received.
¶15 We continue to condemn this practice and again “remind counsel that parties on appeal are bound by the record and may not add additional matters in briefs or appendices.” State v. Hatfield (1993), 256 Mont. 340, 344, 846 P.2d 1025, 1028 (citing State v. Puzio (1979), 182 Mont. 163, 164, 595 P.2d 1163, 1164). We will not tolerate an attempt to introduce extraneous information into the proceedings. State v. Hall (1983), 203 Mont. 528, 540, 662 P.2d 1306, 1312 (citing Farmers State Bank of Conrad v. Iverson and Bouma (1973), 162 Mont. 130, 509 P.2d 839). Consequently, we review the following two issues concerning the District Court’s evidentiary rulings based only upon the evidence contained in the District Court record.
¶ 16 1. Did the District Court abuse its discretion by allowing the State to present testimony concerning MacKinnon’s statements which he made on July 16,1995, in the presence of the victim, M.G., M.G.’s mother and his ex-wife, Monica, as well as two church members, John and Coleen Contos?
¶17 During pretrial proceedings on October 12, 1995, the State filed a memorandum in support of the use of certain statements made by MacKinnon in a July 16, 1995 conversation involving himself, Monica, M.G., and John and Coleen Contos and statements made by MacKinnon in an August 21, 1995 conversation involving himself, Monica, John Contos and Ken Edwards. In turn, MacKinnon filed a motion in limine and a motion to suppress regarding these same statements as well as a related document. On October 13,1995, prior to jury selection, the District Court heard testimony and argument concerning the admissibility of the July and August statements under Montana’s clergy-penitent privilege, § 26-1-804, MCA.
¶ 18 Specifically, the District Court heard testimony concerning the status of John Contos, Coleen Contos and Ken Edwards within the Missoula Christian Church, the structure and discipline of the Church, as well as the circumstances surrounding the July and August conversations. Thereafter, the District Court granted MacKinnon’s motion to suppress the document. However, while the District Court also denied admission of statements made by MacKinnon during the August conversation, the court ruled that Monica, M.G., John Contos and Coleen Contos could testify as to statements made by MacKinnon during the July conversation.
¶19 On appeal, MacKinnon argues that the District Court abused its discretion when it allowed Monica, M.G., John Contos and Coleen Contos to testify about statements he made during the July conversation. He asserts that testimony given by John and Coleen Contos was inadmissible under § 26-1-804, MCA, because the Contoses, in their professional character as clergy persons, and in the course of discipline enjoined by the Church, heard him confess the crime with which he had been charged two months previously. Additionally, MacKinnon asserts that Monica and M.G. should not have been allowed to testify about his statements because the July conversation was analogous to compromise negotiations and conciliation counseling. Furthermore, MacKinnon contends that because of the religious setting, he trusted that his statements would be kept confidential. Ultimately, MacKinnon claims that Monica coerced and tricked him into confessing.
¶20 Section 26-1-804, MCA, provides:
Confessions made to member of clergy. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.
¶21 Enacted in 1867, § 26-1-804, MCA, was left unchanged by the adoption of the Montana Rules of Evidence. See Commission Comments to Article V: Privileges, M.R.Evid. Despite this statute’s long history, we are presented for the first time with an issue involving its application. In considering the application of this statute, we note that the United States Supreme Court has explained:
Testimonial exclusionary rules and privileges contravene the fundamental principle that “ ‘the public ... has a right to every man’s evidence.’ ” As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”
Trammel v. United States (1980), 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186, 195 (citations omitted). Additionally, we note that interpretations in other jurisdictions of clergy-penitent statutes similar to § 26-1-804, MCA, have varied. See e.g. State v. Buss (Wash.App.Div. 1 1995), 887 P.2d 920, and Scott v. Hammock (Utah 1994), 870 P.2d 947.
¶22 The Washington Court of Appeals, in Buss, addressed the issue of whether a defendant’s incriminating statements made to a non-ordained Catholic church counselor during a counseling session were privileged under Washington’s statutory clergy-penitent privilege. Narrowly interpreting their clergy-penitent statute, the court explained that non-ordained church counselors are not “clergy” within the statute. The court further explained that the terms “confession” or “course of discipline” only include the sacrament of confession authorized by a particular church discipline. Because the church counselor was not a clergy member and the counseling session did not amount to a confession, the court held that the privilege did not apply. Buss, 887 P.2d at 923-24.
¶23 In contrast, the Utah Supreme Court, in Scott, broadly interpreted their statutory clergy-penitent privilege holding that the privilege applied to non-penitential communications between lay persons and clergy if the communications were “made in confidence and for the purpose of seeking or receiving religious guidance, admonishment, or advice and that the cleric was acting in his or her religious role pursuant to the practice and discipline of the church.” Scott, 870 P.2d at 956. In Scott, the court held that the privilege did apply because the communications between the defendant and his bishop pertained to the defendant’s moral conduct, were intended to be confidential, and the bishop was acting in his role as cleric. Scott, 870 P.2d at 956.
¶24 Notwithstanding that testimonial exclusionary rules and privileges are strictly construed and accepted, Trammel, 445 U.S. at 50, 100 S.Ct. at 912, 63 L.Ed.2d at 195, under the federal First Amendment and under Article II, Section 5 of the Montana Constitution, all persons are guaranteed the free exercise of their religious beliefs and all religions are guaranteed governmental neutrality. See, for example, Torasco v. Watkins (1961), 367 U.S. 488, 495, 81 S.Ct. 1680, 1683-84, 6 L.Ed.2d 982, 987; and Rasmussen v. Bennett (1987), 228 Mont. 106, 111-12, 741 P.2d 755, 758-59. Thus, in order to minimize the risk that § 26-1-804, MCA, might be discriminatorily applied because of differing judicial perceptions of a given church’s practices or religious doctrine, and in order to least interfere with the federal and Montana constitutional protections of religious freedom referred to above, we conclude that Utah’s broader interpretation of the clergy-penitent privilege as set forth in Scott, 870 P.2d 947, is the better view, and we adopt that approach.
¶25 Notwithstanding, even under this broad interpretation of the statute, we conclude that, because the clergy-penitent privilege was not implicated, the District Court did not abuse its discretion when it required John and Coleen Contos to testify about statements MacKinnon made during the July conversation. First of all, it appears that the District Court assumed that John and Coleen Contos were “clergy persons” for the purposes of MacKinnon’s claim of privilege. Secondly, however, accepting that premise as true, the other facts surrounding the July conversation indicate that any statements MacKinnon made were not directed at John and Coleen Contos in their “professional character,” that is, in their capacities as clerics or in their religious roles and “in the course of discipline enjoined,” that is, pursuant to the practice and discipline of the Church. To the contrary, the evidence demonstrates that MacKinnon was not making a confession to the Cantoses for the purpose of receiving forgiveness or for spiritual or religious counseling, guidance, admonishment or advice. Therefore, § 26-1-804, MCA, did not preclude testimony concerning the July conversation because the statute was never implicated.
¶26 The July conversation, which took place over two months after MacKinnon was charged with felony sexual assault and six weeks after he and Monica divorced, was only a continuation of MacKinnon’s conversation with Monica and M.G. which began after evening church services outside the presence of John and Coleen Contos in the parking lot of a Missoula restaurant. Because Monica felt uncomfortable facing MacKinnon by herself as he attempted to set things right with M.G., she asked MacKinnon to continue their conversation inside the restaurant and she also asked John and Coleen Contos, without explaining the subject of their conversation, to serve as facilitators while she, MacKinnon and M.G. talked. At Monica’s request, their conversation continued in the back of the lobby area of the restaurant, a public place, with everyone sitting on chairs. No representations of confidentiality were made during their conversation.
¶27 Even assuming that John and Coleen Contos were clergy persons in the church, nothing in the record suggests that they were acting as ministers or counselors at the time they facilitated the July conversation. MacKinnon, not yet a church member at the time of the July conversation, had not previously sought spiritual advice or counseling from either John or Coleen Contos. Further, MacKinnon did not ask to meet with John and Coleen Contos for the purpose of confession or for religious guidance, counseling, admonishment or advice. Rather, Monica requested that John and Coleen Contos be present during the July conversation, but only to serve as facilitators. Moreover, during the July conversation, MacKinnon did not ask for, and the Contoses did not give, any spiritual advice or forgiveness. No prayers were given and nothing was said about forgiveness. Rather, MacKinnon volunteered his statements without apparent encouragement in order to set things right with his step-daughter, M.G., so that she would not have to testify at court proceedings. In this regard, MacKinnon’s statements were directed at Monica and M.G., not the Contoses. Finally, MacKinnon had no reasonable expectation that his statements would be held in confidence. MacKinnon did not seek and the Contoses did not make any representations of confidentiality. Instead, MacKinnon made his statements in a public place to his ex-wife and step-daughter in the presence of the Contoses.
¶28 Furthermore, we agree with the State that the District Court did not abuse its discretion when it allowed Monica and M.G. to testify about statements MacKinnon made during the July conversation. Contrary to MacKinnon’s arguments, this conversation was not analogous to compromise negotiations or conciliation counseling, and, therefore, was not confidential. First, MacKinnon made his statements to his former wife and step-daughter in the back of the restaurant lobby, a public place, and no representations of confidentiality were made. Additionally, John and Coleen Contos testified that when the July conversation took place they both knew that Monica and MacKinnon were divorced and that they did not advise Monica or MacKinnon about the resumption of their marriage; they did not offer any spiritual advice or counseling; and they did not suggest any further course of action. As such, MacKinnon’s analogies to compromise negotiations and conciliation do not accurately reflect the substance and tenor of the July conversation. Because MacKinnon did not testify, there is no evidence as to his motives for engaging in the conversation nor any evidence as to his state of mind or his expectations of confidentiality. In short, no evidence suggests that MacKinnon had any reasonable expectation that his statements would be held in confidence. Finally, contrary to MacKinnon’s assertions, no evidence presented shows that Monica in any way coerced or tricked MacKinnon into confessing for the purpose of gaining evidence for the State.
¶29 Having carefully considered the evidence in the record, we conclude that § 26-1-804, MCA, is not implicated in this case. Furthermore, we conclude that the July conversation was not confidential in nature. Accordingly, we hold that the District Court did not abuse its discretion when it allowed testimony concerning statements MacKinnon made during the July 16, 1995 conversation.
¶30 2. Did the District Court abuse its discretion by ruling that MacKinnon’s ex-wife, Monica, could not be cross-examined about prior sexual abuse of herself and her daughter, M.G.?
¶31 MacKinnon argues that the District Court abused its discretion when it ruled that MacKinnon could not cross-examine his ex-wife, Monica, about two prior incidents of sexual abuse, one involving sexual abuse of Monica by a family member when she was a child and the other involving sexual abuse of M.G. by her natural father when she was an infant. MacKinnon does not contend that Monica lied; rather, he simply contends that Monica’s personal problems may have affected her perception of M.G.’s initial statements that MacKinnon had touched her in inappropriate places and caused Monica to overreact. As such, MacKinnon argues this evidence of Monica’s personal problems would show her bias, prejudice and motive to testify. Furthermore, MacKinnon maintains that he was entitled to this testimony under the compulsory process and confrontation clauses of the federal and Montana constitutions.
¶32 The State argues that the District Court properly limited the cross-examination of Monica by prohibiting inquiry into these two prior unrelated incidents of sexual abuse involving Monica and M.G. Specifically, the State asserts that the court properly prohibited inquiry into the prior unrelated incident of sexual abuse against M.G. when she was an infant pursuant to Montana’s rape shield statute, § 45-5-511(2), MCA. Furthermore, the State contends that on the basis of Rules 401, 403 and 608(b), M.R.Evid., the court properly prohibited inquiry into the prior unrelated incident of sexual abuse against Monica when she was a child. We agree.
¶33 We have previously explained:
The defendant’s right to confront and cross-examine an adverse witness is grounded in the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution. However, limiting the scope of cross-examination does not necessarily violate a defendant’s right to confront an adverse witness. A trial court has broad discretion to limit the scope of cross-examination to those issues it determines are relevant to the trial.
State v. Sullivan (1994), 266 Mont. 313, 323, 880 P.2d 829, 836 (citing Sloan v. State (1989), 236 Mont. 100, 104-05, 768 P.2d 1365, 1368, and United States v. Kennedy (9th Cir. 1983), 714 F.2d 968, 973, cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984)).
¶34 Montana’s rape shield statute, § 45-5-511(2), MCA, prohibits introduction of evidence concerning the victim’s prior sexual conduct, with certain exceptions:
No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.
¶35 Inadmissible evidence concerning the past sexual conduct of a victim includes prior sexual abuse. State v. Weeks (1995), 270 Mont. 63, 89, 891 P.2d 477, 493. “The purpose of the rape shield statute is to prevent the trial from becoming a trial of the victim.” Weeks, 270 Mont. at 89, 891 P.2d at 493. Yet, we must balance the victim’s protection under the rape shield statute against the defendant’s right to confront witnesses. Weeks, 270 Mont. at 89, 891 P.2d at 493. We have held that a defendant’s right of confrontation is not violated by the exclusion of evidence concerning the victim’s prior sexual abuse committed by other individuals unless the victim’s accusations of prior abuse are proven to be false. Weeks, 270 Mont. at 89, 891 P.2d at 493; State v. Van Pelt (1991), 247 Mont. 99, 805 P.2d 549.
“If the charges are true or reasonably true, then evidence of the charges is inadmissible, mainly because of its prejudicial effect,... but certainly because of its irrelevance to the instant proceeding. ... Furthermore, evidence of prior charges which have not been adjudicated to be true or false; i.e., which may be true or false is also inadmissible, primarily because its introduction circumvents the interest in preserving the integrity of the trial and preventing it from becoming a trial of the victim... (reception of evidence which may be true or false allows circumvention of laws designed to protect legitimate interests of [the] victim). These limitations do not infringe upon a defendant’s right to confrontation. (Citations omitted; emphasis in original.)”
Van Pelt, 247 Mont. at 104, 805 P.2d at 552-53 (quoting State v. Anderson (1984), 211 Mont. 272, 284-85, 686 P.2d 193, 200).
¶36 Here, the District Court properly concluded that evidence of M.G.’s prior unrelated incident of sexual abuse was inadmissible. Neither of the two statutory exceptions applies in this case. Furthermore, it was not shown that M.G. made any false accusations concerning her prior unrelated incident of sexual abuse. Nor could M.G. have testified about this incident of sexual abuse because at the time it occurred she was only an infant. Accordingly, we hold that the District Court correctly ruled that MacKinnon could not cross-examine Monica concerning M.G.’s prior unrelated incident of sexual abuse.
¶37 Montana’s rape shield statute does not apply to other witnesses, and, therefore, would not prohibit MacKinnon from cross-examining Monica about the prior incident of sexual abuse when she was a child. We have stated that “[a] witness’s credibility may be attacked through cross-examination to reveal possible biases, prejudices, or ulterior motives if they relate directly to issues or personalities in the case at hand.” State v. Short (1985), 217 Mont. 62, 67, 702 P.2d 979, 982. In this regard, Rule 401, M.R.Evid., provides that relevant evidence may include evidence of a witness’s credibility. However, Rule 401, M.R.Evid., also states that relevant evidence is any evidence which tends to make the existence of any fact of consequence to the determination of the action more or less probable than without the evidence.
¶38 Here, MacKinnon argues that Monica would have reacted differently to M.G.’s disclosures if the two prior incidents of sexual abuse had not occurred. Specifically, MacKinnon contends that Monica might have made more detailed inquires into what happened and might have taken M.G. to an expert before she rushed to call the authorities within minutes of talking with M.G. However, we conclude that the causes of Monica’s reaction to M.G.’s disclosures are not facts of consequence in determining MacKinnon’s guilt. See State v. Rendon (1995), 273 Mont. 303, 307-08, 903 P.2d 183, 185-86 (district court did not abuse its discretion in excluding testimony concerning the antagonistic relationship between a testifying witness, the assault victim’s mother, and the defendant, which was designed to attack the witness’s credibility, as irrelevant to the issue of defendant’s guilt). As such these incidents are irrelevant and the District Court properly excluded them. Furthermore, we find no fault with Monica’s initial reporting of M.G.’s disclosures to the police who conducted an investigation and determined that the child’s statements were credible.
¶39 Additionally, Rule 608, M.R.Evid., prohibits attacks on a witness’s general character and credibility through specific instances of conduct, and Rule 403, M.R.Evid., allows a court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Here, MacKinnon wanted to cross-examine Monica about prior unrelated incidents of sexual abuse — one involving herself when she was a child and the other involving M.G. when she was an infant. We agree with the State that, on the basis of Rules 608 and 403, M.R.Evid., testimony concerning these prior incidents of sexual abuse would not be probative of Monica’s truthfulness, but rather would constitute an attack on her general character and credibility; would create unfair prejudice against Monica; and would confuse the issues for the jury. See State v. Passama (1993), 261 Mont. 338, 341-42, 863 P.2d 378, 379-80 (district court did not abuse its discretion in prohibiting the defendant from cross-examining the victim’s brother about prior instances of sexual misconduct because its prejudicial value outweighed its probative value). Accordingly, we hold that the District Court did not abuse its discretion when it prohibited MacKinnon from cross-examining Momea about these two prior unrelated incidents of sexual assault.
¶40 Finally, the District Court’s ruling did not violate MacKinnon’s rights under the compulsory process and confrontation clauses of the Montana and federal constitutions. The District Court’s ruling was narrow in scope and effect. The court simply restricted MacKinnon from cross-examining Monica about two specific instances of prior unrelated sexual abuse — one involving M.G. when she was an infant and another involving Monica when she was a child. Otherwise, the court did not restrict MacKinnon’s cross-examination of Monica concerning the marital strife within Monica and MacKinnon’s marriage or her desire to end their marriage, and the court did not impose any other limitation upon cross-examination. Furthermore, the court allowed MacKinnon to present closing arguments concerning Monica’s motive, bias or prejudice based on evidence in the record. Under Rule 611, M.R.Evid., the District Court is given considerable discretion in exercising control over interrogation of witnesses. Accordingly, we hold that the District Court properly exercised its discretion when it limited MacKinnon’s cross-examination of Monica.
¶41 Affirmed.
CHIEF JUSTICE TURNAGE and JUSTICE GRAY concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 Raymond Dale Rhode brought this action in the District Court for the First Judicial District in Lewis and Clark County to recover damages caused by the violation of his civil rights by the Honorable Dorothy McCarter, District Judge of the First Judicial District, and by the violation of his right to procedural due process by Lois Hall Adams, the attorney who represented his wife in the parties’ dissolution of marriage action. Rhode moved the District Court for an order which would allow him to amend his allegations against Adams and add his minor children as plaintiffs. The District Court denied Rhode’s request and granted the defendants’ motions to dismiss. Rhode appeals from the District Court’s denial of his motion to add his children as plaintiffs and, necessarily, from the District Court’s dismissal of Adams. We affirm the order and judgment of the District Court.
¶2 The issues raised on appeal are whether, by adding Rhode’s children as plaintiffs, his amended complaint would have stated a cause of action against Adams, and whether the District Court, therefore, erred when it denied Rhode’s motion to file an amended complaint.
STATEMENT OF FACTS
¶3 Raymond Dale Rhode was married to Kelly Lynn Lazenby in 1984. Three children were born of that marriage. They are now thirteen, eleven, and eleven years old, respectively. Rhode and Lazenby were divorced and then remarried in LeGrande, Oregon. The couple remained married until January 28,1991, when they divorced in Montgomery County, Tennessee. It is not clear from the record who was awarded custody following the second divorce. However, Rhode obtained physical custody of the children and moved with them to Townsend, Montana.
¶4 According to Rhode, on May 11,1993, his three children did not return from school to his home in Townsend. Rhode learned from the sheriff of Broadwater County that Lois Hall Adams, Lazenby’s attorney, had obtained Judge Dorothy McCarter’s signature on an order which, based on the decree of the Tennessee court, awarded sole custody of the couple’s children to Lazenby. Adams gave the order to the sheriff who then presented it to the school administrator at the children’s school, removed the children from the school, and handed them over to Lazenby. Lazenby immediately left the state of Montana with the children.
¶5 On July 14, 1993, the Honorable Jeffery Sherlock, District Judge of the First Judicial District, overturned Judge McCarter’s order. Judge Sherlock found that Rhode was not afforded adequate notice and opportunity to be heard before Judge McCarter issued her order.
¶6 In this action, Rhode alleged that Judge McCarter violated his civil rights because she was without jurisdiction to grant Lazenby custody of the children. He also contended that Adams is liable to him because she breached her duty to comply with Montana law. As a result of Judge McCarter’s and Adams’ actions, Rhode claimed to have expended a considerable amount of time, money, and energy in his efforts to locate and reestablish contact with his children after Judge McCarter’s order was quashed.
¶7 Rhode moved the District Court for an order which would allow him to amend his complaint by adding as plaintiffs the parties’ children and setting forth factual allegations that Adams owed a duty to the children. Rhode’s amended complaint would have alleged that Adams was negligent when she obtained the order because she failed to follow the laws and procedures that are intended to prevent the harm that was caused to the children. Rhode maintains that one of the children was physically and sexually abused while the children were with Lazenby both prior to this incident and after Lazenby removed the children from Montana. According to Rhode, but for the unlawful order that Adams sought and received from Judge McCarter, Lazenby would not have had the means to obtain physical custody of the children.
¶8 On December 18, 1996, Judge Thomas Honzel denied Rhode’s request to file an amended complaint. The court reasoned that, if filed, the amended complaint, which would add the children as plaintiffs, would not change the outcome of the case and would instead create additional expense and frustration for the parties. The District Court also granted Judge McCarter’s, the State of Montana’s, and Adams’ motions to dismiss. It concluded that Adams owed no duty to the children because they were not her clients and that Judge McCarter is shielded from suit by judicial immunity. Rhode, on behalf of the parties’ children, filed a notice of appeal.
STANDARD OF REVIEW
¶9 We have held that the determination that a complaint does not state a claim upon which relief can be granted is a conclusion of law which we review to determine whether the district court is correct. See Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317. We have further held that the question of whether a legal duty is owed by one person to another is a question of law. See Webb v. T.D. (1997), [287 Mont. 68] 951 P.2d 1008, 1011.
DISCUSSION
¶10 The issue Rhode raises on appeal is whether or not the District Court erred when it denied Rhode’s motion to file an amended complaint which would add his minor children as plaintiffs. That issue, necessarily, involves the related issue of whether, as amended, the complaint would have stated a cause of action against Adams. Rhode’s amended complaint, had it been filed, would have alleged that the children were injured by Adams’ negligence when she ob tained the order which gave Lazenby custody of the children. Rhode contends that Article II, Section 16, of the Montana Constitution guarantees the children a remedy for the harm caused by Adams. That section provides all people with a speedy remedy for every injury of person, property, or character. Rhode further maintains that Adams is responsible for any harm she may have caused the children because § 27-1-701, MCA, states, except as otherwise provided bylaw, “everyone is responsible... for an injury occasioned to another by want of ordinary care.” Rhode contends that attorneys, including Adams, should not be an exception to that rule.
¶11 According to Rhode, the stated purposes of the Uniform Child Custody Jurisdiction Act involve the protection of children from the harmful effects of abduction and other unilateral removals of children, as well as to continuously protect the best interests of the children. See § 40-7-102(1)(e), MCA. He also argues that one of the stated purposes of Montana’s laws governing dissolution of marriage is to mitigate the potential harm to the parties children caused by the process of legal dissolution of marriage. See § 40-4-101(3), MCA.
¶12 We have held that in a professional negligence action, the plaintiff must prove that the professional owed him or her a duty. See Carlson v. Morton (1987), 229 Mont. 234, 238, 745 P.2d 1133, 1136. However, we have never discussed whether an attorney owes a duty to third persons to exercise care in the performance of services for his or her client.
¶ 13 Although Rhode concedes that there are no prior Montana decisions which create a duty from an attorney to someone other than his or her client, he relies on the following decisions from other jurisdictions: Goldberg v. Frye (Cal. 1990), 266 Cal Rptr. 483; Neal v. Baker (Ill. App. Ct. 1990), 551 N.E.2d 704, appeal denied (Ill. 1990), 555 N.E.2d 378; Trask v. Butler (Wash. 1994), 872 P.2d 1080. Each of these jurisdictions takes a slightly different approach to the issue of an attorney’s duty to a non-client. Rhode urges this Court to adopt the test and rule set forth in Trask.
¶14 In Trask, the Supreme Court of Washington adopted California’s multi-factor balancing test to determine whether an attorney owes a duty to a non-client. The multi-factor balancing test involves an analysis of the following six factors:
(1) the extent to which the transaction was intended to affect the plaintiff;
(2) the foreseeability of harm to the plaintiff;
(3) the degree of certainty that the plaintiff suffered injury;
(4) the closeness of the connection between the defendant’s conduct and the injury;
(5) the policy of preventing future harm; and
(6) the extent to which the profession would be unduly burdened by a finding of liability.
Trask, 872 P.2d at 1083. According to the Trask court, the first and threshold inquiry in the multi-factor balancing test is whether the attorney’s services were intended to affect the plaintiff. See Trask, 872 P.2d at 1083.
¶15 In Trask, the court analyzed the multi-factor balancing test within the context of the duty a personal representative’s attorney owes to the estate, or to the beneficiaries of the estate, and found that no duty is owed. See Trask, 872 P.2d at 1085. The court explained that the multi-factor balancing test does not impose legal malpractice liability upon the personal representative’s attorney, in part because “the unresolvable conflict of interest an estate attorney encounters in deciding whether to represent the personal representative, the estate, or the estate heirs unduly burdens the legal profession.” Trask, 872 P.2d at 1085. The court held that the multi-factor balancing test also requires an evaluation of public policy before a court can find a duty to a third party. It explained that the policy considerations which weigh against finding a duty to a non-client are the strongest when doing so would detract from the attorney’s ethical obligations to the client. See Trask, 872 P.2d at 1085. It described such a situation as one in which a duty to a non-client creates a risk of divided loyalties because of a conflicting interest or of potential for breach of confidence. According to the Trask court, conflicts of interest arise in estate matters whenever the interest of the personal representative is not harmonious with the interest of an heir and, thus, the estate proceedings become adversarial. See Trask, 872 P.2d at 1085.
¶16 Rhode contends that in this case all of the elements of the Trask multi-factor test are present and there is no danger of a division of loyalties. He maintains that if a division of loyalty arises, the attorney may request that counsel be appointed for the children.
¶17 We conclude, however, that while a multi-factor balancing test, such as that set out in Trask, may be effective when used to address the duties of attorneys in transactional matters or estate planning and probate practice, this model is not appropriate to define an attorney’s duties while representing clients in adversarial proceedings. In a disputed child custody case, for example, there would be substantial risk of divided loyalties between the client and the children.
¶18 California and Washington, the leading proponents of the multi-factor test, also recognize that this test does not apply in adversary situations. See Norton v. Hines (Cal. 1975), 123 Cal. Rptr. 237; Bowman v. John Doe Two (Wash. 1985), 704 P.2d 140. In Bowman, the Washington Supreme Court recognized that the “[e]xistence of a duty to an adverse party beyond the courtesy and respect owed all participants in the legal process would interfere with the undivided loyalty an attorney owes a client and would diminish an attorney’s ability to achieve the most advantageous position for a client.” Bowman, 704 P.2d at 144 (citation omitted).
¶19 Other jurisdictions have similarly found that to place a duty upon an attorney to a non-client in an adversarial situation would inhibit free access to the courts by unduly inhibiting attorneys from bringing close cases, innovative theories, or suing defendants who might retaliate. See Friedman v. Dozorc (Mich. 1981), 312 N.W.2d 585. As the Friedman court explained, an adverse party has no basis for reliance on the actions of an adversary’s counsel and that fact distinguishes an attorney’s relationship from the third-party relationship of other professions. See Friedman, 312 N.W.2d at 593-94.
¶20 The Colorado Court of Appeals found that an attorney representing a parent in a contested custody proceeding does not per se also represent the children’s interests. See McGee v. Hyatt Legal Services, Inc. (Colo. App. 1990), 813 P.2d 754. That court held that when custody is contested by each parent, such that the best interests of the child may be contrary to the parents’ wishes, the duty of the attorney to represent his or her client zealously and ethically is inconsistent with any duty he or she might owe to the child. See McGee, 813 P.2d at 757. The McGee court further explained that this principal is implicitly recognized in Colorado’s statute which permits the court to appoint an attorney to represent the minor child concerning custody, support, and visitation. See McGee, 813 P.2d at 757.
¶21 We agree that an attorney must be able to vigorously advocate his or her client’s interests in litigation without being compromised by obligations to non-clients. Such vigorous representation of a client is an essential part of the adversarial system. See Rules 1.2, 1.7,1.9, and 3.1, Montana Rules of Professional Conduct. This is not to say that an attorney who represents a parent in a contested child custody case should not advise his or her client to consider what is best for the children, and to work within the proper legal and ethical parame ters when litigating custody and visitation. Nor are children without other protections. See § 40-4-205, MCA (appointment of guardian ad litem), and § 40-4-212, MCA (best interest of child to determine parenting plan). Furthermore, if the conduct of the attorney-advocate rises to the level of deceit, collusion, or intentionally reckless conduct, an injured party is entitled to recover treble damages (see § 37-61-406, MCA), and, under other limited circumstances, the attorney may be liable for malicious prosecution or abuse of process. See Hopper v. Drysdale (D. Mont. 1981), 524 F. Supp. 1039; Davis v. Sheriff (1988), 234 Mont. 126, 762 P.2d 221; Vehrs v. Piquette (1984), 210 Mont. 386, 684 P.2d 476. However, we conclude that if an attorney owes the same duty of care to both the parent and the children, he or she will be able to serve neither effectively.
¶22 As stated by the court in Friedman, 312 N.W.2d 585, when the professional relationship between an attorney and a client is placed within an adversarial context in which the attorney functions as the advocate for the client, the attorney has a different relationship to non-clients than do members of other professions. This distinction is what differentiates this type of case from one involving non-client relationships with doctors, probate and estate planning attorneys, accountants, realtors, architects, and other similarly situated professionals.
¶23 We therefore conclude that because the interests of a parent and those of a child in a child custody case may not be identical, the attorney’s duty runs solely to his or her client, except as otherwise specified in this opinion.
¶24 Accordingly, we conclude that the District Court did not err when it denied Rhode’s motion to file an amended complaint. The judgment of the District Court is, therefore, affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT, REGNIER, DISTRICT COURT JUDGE JOHN S. HENSON, sitting for JUSTICE LEAPHART and DISTRICT COURT JUDGE THOMAS M. McKITTRICK, sitting for JUSTICE GRAY concur.
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Appellants Rita L. and Joseph A. Luggie (the Luggies) appeal from the order of the Twenty-First Judicial District Court granting summary judgment in favor of Respondents Theresa Mullaly (Mullaly) and Wymo Land Company (Wymo). We affirm.
¶2 The Luggies raise the following issues on appeal:
¶3 1. Did the District Court err in holding that the right of first refusal on parcel 14-10 merged into the subsequent contract for deed on parcel 14-9 and was therefore invalid?
¶4 2. Did the District Court err in holding that the Luggies were given notice of Mullaly’s offer to buy parcel 14-9 and failed to timely exercise any right of first refusal they may have had?
Factual and Procedural Background
¶5 This dispute arises out of the sale of land in Granite Creek Ranches, a subdivision in Ravalli County, Montana. Wymo owned and developed all of the lots in Granite Creek Ranches and began marketing the lots for sale through Respondent Tyrone Hultberg (Hultberg) of Real Estate Unlimited. In 1995, the Luggies began negotiating with Hultberg for the purchase of one of the lots in Granite Creek Ranches, parcel 14-9. Hultberg told the Luggies that Wymo required a minimum purchase price of $30,000 and identical terms on all of the lots in Granite Creek. The Luggies informed Hultberg that if they were to purchase parcel 14-9, they also wanted a right of first refusal on parcel 14-10.
¶6 On September 15,1995, Wymo and the Luggies entered into an agreement to sell and purchase parcel 14-9 (Luggie Buy-Sell). A special provision addendum (Addendum) was attached to the Luggie Buy-Sell. Paragraph 10 of the Addendum states:
Seller To Grant Purchasers A First Right Of Refusal And Not To Exceed 72 Hours On Parcel 14-10 Of Granite Creek Ranches, From The Time A Signed Buy-Sell Agreement Is Produced To The Seller At A Price Of $30,000 And Meets The Sellers Terms.
The parties dispute whether Hultberg or the Luggies drafted the Addendum and, specifically, who supplied the language for the Luggies’ right of first refusal on parcel 14-10 (Right of First Refusal).
¶7 At closing on November 3,1995, Wymo and the Luggies executed a contract for deed on parcel 14-9 (Contract for Deed). The Contract for Deed contains a standard merger clause. The Contract for Deed does not mention the Right of First Refusal, but does incorporate other provisions of the Addendum. The Luggies contend that no mention was made at closing of the Right of First Refusal. However, Hultberg contends that he specifically told the Luggies that the Contract for Deed did not contain the Right of First Refusal and that if they executed the contract, they would risk losing the right.
¶8 In June 1996, upon the Luggies’ request, Hultberg prepared a buy-sell agreement on parcel 14-10. The Luggies did not sign the agreement and, later that month, told Hultberg that they could not afford to purchase parcel 14-10 at that time. In July 1996, Mullaly, the owner of parcel 14-11, approached Hultberg and told him that she was interested in buying parcel 14-10. Hultberg told Mullaly that another party may have a right of first refusal on the property, but that he did not think they were interested in exercising it. On or about July 10, 1996, Hultberg and Mullaly executed a buy-sell agreement (Mullaly Buy-Sell). The Mullaly Buy-Sell did not mention the Right of First Refusal. The same day, Hultberg informed Barbara Glandt, a representative of Wymo, that he had received an offer on parcel 14-10 and mailed her the Mullaly Buy-Sell.
¶9 Hultberg testified that on July 12, 1996, he spoke with Joseph Luggie at the Granite Creek property and informed him of the existence and terms of Mullaly’s offer. Hultberg also testified that he spoke with Rita Luggie on the telephone on July 22 and informed her that the Right of First Refusal had been triggered. On July 24,1996, the Luggies received a certified letter from Hultberg, which stated, in relevant part:
This letter is to advise you that a signed Buy-Sell has been produced to the Seller at the stated selling price of $30,000 and meeting the Sellers terms. Although we have had verbal communication to this affect and evidently some misunderstanding, I am reducing this to written form for everyone’s concern.
Hultberg did not enclose a copy of the Mullaly Buy-Sell.
¶10 The Luggies state that they and their attorney, Randy Lint (Lint), made numerous, unsuccessful attempts to obtain a copy of the Mullaly Buy-Sell. After the Luggies received the certified letter, Lint called Hultberg to request a copy and was informed that the terms of the Mullaly Buy-Sell were identical to those in the Luggie Buy-Sell. Hultberg did not provide Lint with a copy of the Mullaly Buy-Sell, but did fax him a copy of the Luggie Buy-Sell.
¶11 On July 25, 1996, Lint informed Wymo’s attorney, William Baldassin (Baldassin), that he would be out of town until July 30. On July 26, 1996, Baldassin faxed the Mullaly Buy-Sell to Lint’s office. Lint did not read the fax until July 29, 1996 when he returned to his office. On July 31,1996, the Luggies attempted to exercise the Right of First Refusal by sending Baldassin a letter postdated to July 25, 1996 and a $1,000 earnest money deposit.
¶12 On September 6, 1996, Wymo filed a complaint in the District Court seeking a determination of whether it had a contractual obligation with the Luggies or Mullaly. The Luggies and Mullaly filed answers, counterclaimed against Wymo for breach of contract, and cross-claimed against each other seeking a declaratory judgment of whether the Luggies had a valid right of first refusal and for intentional interference with contract. The Luggies also filed a third-party complaint against Hultberg, alleging negligence in the drafting of the Right of First Refusal.
¶13 Mullaly moved for summary judgment, arguing that the Right of First Refusal merged into and was extinguished by the Contract for Deed or, alternatively, that the Luggies failed to timely exercise the right. The Luggies filed a cross-motion for partial summary judgment, arguing that because the Right of First Refusal was a collateral agreement, it did not merge with the Contract for Deed. Hultberg filed a motion to dismiss the third-party complaint.
¶14 The District Court granted Hultberg’s motion to dismiss and granted summary judgment in favor of Mullaly and Wymo. The District Court held that the Right of First Refusal had merged into the fully integrated Contract for Deed and that the collateral agreement exception did not apply. Alternatively, the District Court held that if the Luggies did have a valid right of first refusal, they did not exercise it timely.
Discussion
¶ 15 The Luggies argue that the District Court erred in holding that the Right of First Refusal merged into the subsequent Contract for Deed. However, we determine that the Luggies failed to exercise timely any right of first refusal they may have had. Thus, we need not reach the issue of whether the District Court erred in holding the right was merged into the Contract for Deed.
¶16 The Right of First Refusal gives the Luggies 72 hours “from the time a signed buy-sell agreement is produced to the seller at a price of $30,000 ...” in which to exercise the right. (Emphasis added.) Read literally, the Right of First Refusal does not require Wymo to give the Luggies any notice that an offer has been made; thus, the 72-hour period in which the Luggies had to exercise the Right of First Refusal could have commenced, run, and expired before they ever knew a buyer had made an offer. The Luggies argue that unless the contract language is reformed to give them 72 hours “from the time a signed buy-sell agreement is produced to the buyer ...” the Right of First Refusal is rendered meaningless. We need not decide whether the Right of First Refusal should be reformed because regardless of whether it reads “to the seller” or “to the buyer,” the Luggies still failed to exercise timely the right.
¶17 Hultberg testified that he gave verbal notice of the Mullaly Buy-Sell to Mr. Luggie on July 12 and to Mrs. Luggie on July 22. On July 24, 1996, the Luggies received a certified letter from Hultberg stating that Wymo had received an offer on parcel 14-10 and reciting the terms of that offer. The same day, Hultberg informed the Luggies’ attorney, Lint, that the terms of the Mullaly Buy-Sell were identical to the Luggie Buy-Sell and faxed him a copy of the Luggie Buy-Sell to review.
¶18 Relying on Tribble v. Reely (1976), 171 Mont. 201, 557 P.2d 813, the Luggies argue that the holder of a right of first refusal is entitled to more than actual notice of the existence of an offer. In that case, Tribble owned a right of first refusal in the property he was leasing that had to be exercised “ten (10) days after notice to Lessees in writing of intention or offer to sell to a third party.” Tribble, 557 P.2d at 815. Tribble received no written notice of the sale, but had actual notice that the defendants were attempting to purchase the property. Tribble, 557 P.2d at 817. This Court held:
[T]here is a difference between merely knowing of a sale and knowing all the terms of that sale. Such a distinction is crucial here because without knowing the terms of the sale, the plaintiffs could not meet the offer of defendants Reely and thus could not properly exercise their right of first refusal.
Tribble, 557 P.2d at 817.
¶19 In this case, the Luggies not only knew of Mullaly’s offer, they had actual notice of the terms of the offer. The Luggies argue that “under a reasonable, indeed, under the typical right of first refusal, its holders have a specified time period from receipt of written notice of the terms of an executed competing bid to exercise their rights.” However, they fail to note that they did receive written notice of the terms of Mullaly’s offer in the certified letter that they received on July 24, 1996. Further, the same day, Hultberg explained to Lint that the terms of Mullaly’s offer were identical to those contained in the Luggie Buy-Sell and provided him a copy of the Luggie Buy-Sell. Thus, the 72-hour period began to run, at the latest, on July 24,1996. The Luggies did not attempt to exercise the Right of First Refusal until July 31, 1996. We hold that the District Court did not err in finding that the Luggies failed to exercise timely the Right of First Refusal.
¶20 Based on the foregoing, we affirm the decision of the District Court.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and REGNIER concur.
|
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an appeal by American Federal Savings Bank (American) from the District Court’s April 4, 1997 Order on Motion for Summary Judgment entered against American and in favor of Madison Valley Properties, Inc. (Madison). Madison also cross-appeals from one of the court’s rulings on its cross-motion for summary judgment. We reverse the trial court’s decision as to the issue on appeal; we affirm as to the issue on cross-appeal; and we remand for further proceedings and entry of a judgment consistent with this opinion. Finally, we dismiss with prejudice as moot American’s appeal of the summary judgment rendered in favor of Valley Bank of Helena (Valley Bank).
Background
¶2 The dispositive facts are not in dispute. David Gauvin (David) operated a Helena excavation business. In January 1991, American loaned David and his then wife, Marlene, nearly $32,000 evidenced by a promissory note and secured by a 1989 Caterpillar backhoe (the collateral or the backhoe). American properly perfected its security interest in the collateral in February 1991, by the filing of a financing statement with the Secretary of State. David and Marlene divorced in 1992.
¶3 In the spring of 1994, David was inj nred and his loan, then paid down to under $14,000, went into default. Following his accident, David advertised his business equipment, including the backhoe, for sale. On July 5, 1994, representatives of Madison came to Helena, inspected the equipment, and agreed to purchase some of it, including the backhoe, for a total price of $35,000. As a deposit, Madison left a check for $5,000 payable to David and to David’s girlfriend, Debra White (Debra), with Debra. Debra was acting on David’s behalf, apparently as his attorney in fact. Madison’s representatives then returned home. On that same day Debra called American and asked for and was given a current pay-off figure for David’s loan. Debra also advised American’s employee, Jo Ann Jones (Jo Ann), that David would be selling the backhoe and paying off the loan.
¶4 On July 7,1994, a representative of Madison returned to Helena and delivered to David and Debra a $30,000 check for the balance of the purchase price. The check was payable to both David and Debra. Madison had actual knowledge of American’s perfected lien in David’s equipment, and though instructed to obtain lien releases at the time of payment, Madison’s representative failed to do so. Upon taking delivery of the $30,000 check, David and Debra drove from Helena to Bozeman where they cashed the check at a local bank. The proceeds were paid to thém in the form of $10,000 in cash to David and a $20,000 cashier’s check payable to Debra.
¶5 The following day, July 8, David went to Valley Bank in Helena and presented the $20,000 cashier’s check showing his and Debra’s endorsements. He then negotiated this check and purchased from the proceeds a Valley Bank cashier’s check payable to American for $13,703.31. This check was in the amount of and designated as the pay-off for his American loan.
¶6 That same day, the Valley Bank cashier’s check was delivered to American by means and person(s) undetermined. In any event, the check for the loan pay-off was on the desk of loan officer Della Ranard (Della) when she returned from lunch. On finding the check, Della stamped “PAID” on the promissory note; executed a lien release to be sent to the Secretary of State; placed the note and lien release in envelopes for mailing; and deposited the envelopes with the enclosed documents in American’s outgoing mail basket.
¶7 Later on July 8, however, Della received a call from Valley Bank. Valley Bank advised Della that Debra had notified the Bank that the $20,000 check from the Bozeman bank payable to her which David used to purchase the Valley Bank cashier’s check payable to American was stolen and that her endorsement was forged by David. Valley Bank requested Della to stop the pay-off of David’s loan. This Della did. She then retrieved the note marked “PAID” and the lien release from the outgoing mail basket and wrote “Stamped in error” next to the “PAID” stamp on the note and thereafter regarded the note as still unpaid. Subsequently, Valley Bank called again, and, at its request, Della returned the Valley Bank cashier’s check to that institution.
¶8 On July 15, David and Debra went to Valley Bank. The District Court found that at that time Valley Bank learned that the original $20,000 check had not been stolen from Debra nor had her signature been forged. In any event, Debra requested and obtained the return of her $20,000 check, and the two left the Bank for parts unknown. American’s loan was not repaid and its lien on the collateral purchased by Madison was not released (except to the extent that it was replaced by a cash bond filed by Madison as part of this litigation which cash bond has now been paid over to Madison as a result of the trial court’s decision).
¶9 Subsequently, American sued David and Marlene to recover on the note. American also sued Madison to recover possession of the collateral. Debra was added as a defendant in an amended complaint. Madison counter-claimed seeking to quiet its title to the collateral it purchased from David as against American’s perfected security interest. Subsequently, by a second amended complaint, American joined Valley Bank as a defendant on the theory that, if American lost its rights in the collateral as against Madison, then American should be indemnified by Valley Bank.
¶10 Following discovery, American and Madison filed cross-motions for summary judgment. After briefing and a hearing, the District Court ruled in favor of Madison and against American holding that Madison had superior rights in the collateral but that American had not agreed to David’s sale of the collateral in a manner inconsistent with its security agreement. American timely appealed and Madison cross-appealed. American also appealed the court’s summary judgment in favor of Valley Bank.
Issues
¶11 In American’s appeal we address the issue of which party— American or Madison — has superior rights to the collateral in dispute. By way of its cross-appeal, Madison raises the issue of whether American waived its rights under its written security agreement by acquiescing to David’s sale of the collateral in a manner inconsistent with the terms of the security agreement. We will address each of these issues in turn. We also summarily dispose of American’s appeal against Valley Bank.
Standard of Review
¶12 This case is on appeal from the trial court’s decision on cross-motions for summary judgment filed by American and by Madison. Our standard of review in appeals from a district court’s summary judgment ruling is de novo; we apply the same criteria and evaluation as the district court based on Rule 56, M.R.Civ.P. The initial burden is on the movant to demonstrate that there exist no genuine issues of material fact. That having been accomplished, the burden then shifts to the non-moving party to show, by more than mere denial and speculation, that genuine issues of material fact do exist. If the court concludes that there are no genuine issues of material fact, then it must determine whether the moving party is entitled to judgment as a matter of law. Our review of the court’s legal conclusions is plenary. Montana Public Emp. Assoc. v. Dept. of Transportation, 1998 MT 17, ¶ 8, 287 Mont. 229, ¶ 8, 954 P.2d 21, ¶ 8 (citations omitted). In the case at bar, since the facts are not disputed, we need only determine whether the District Court’s application of the law to these facts is correct.
Discussion
¶13 The ultimate question to be answered in every commercial transaction gone bad is: ‘Who is to bear the loss; who will be the ‘stuckee’?” In the instant case, the trial court determined that party to be American. In so ruling, the court reasoned that American had not in any way consented to David’s sale of the collateral as contemplated by § 30-9-306(2), MCA, when it cooperated in giving Debra a loan pay-off figure. Nonetheless, the District Court held that American’s perfected lien along with the underlying debt was discharged pursuant to § 30-3-310(1), MCA, when American took the Valley Bank cashier’s check. The court agreed with Madison’s argument that American had no obligation to return the Valley Bank cashier’s check and that, in doing so, American waived its absolute right to insist that Valley Bank honor the check and to payment.
¶14 Subject to exceptions not applicable here, the parties do not dispute that, as between a holder of a perfected security interest in collateral (here, American) and a purchaser of that collateral (Madison), the security interest follows the collateral and any identifiable proceeds therefrom notwithstanding sale, exchange or other disposition, unless the disposition was authorized by the secured party in the security agreement or otherwise. Section 30-9-306(2), MCA. Therefore, unless American lost its lien, its security interest takes priority notwithstanding Madison’s purchase of the collateral. It is this question of which party has superior rights in the collateral that we first address.
I.
¶15 Which party — American or Madison — has superior rights in the collateral?
¶16 Commercial paper is a vital component of the economy of this and other nations and is the means by which commerce is transacted. Accordingly, rules governing the issuance, utilization, honoring and dishonoring of commercial paper have developed over time and have been uniformly accepted and applied. Our present rules find their origins in the Law Merchant of England. Previously codified as the Uniform Sales Act and Uniform Negotiable Instruments Law, Montana, like other states, has now enacted these and other commercial laws through its adoption of the Uniform Commercial Code (UCC). The transactions here at issue are governed by these laws and in particular by the laws pertaining to negotiable instruments codified in Title 30, Chapter 3 of the Montana Code Annotated.
¶17 “Checks” are negotiable instruments and encompass drafts, cashier’s checks and teller’s checks. Section 30-3-104(1) and (6), MCA. A cashier’s check is a draft with respect to which the drawer and drawee are the same bank or branches of the same bank. Section 30-3-104(7), MCA. Acceptance of a draft is the drawee’s signed agreement to honor the draft as presented. Section 30-3-410(1), MCA.
¶18 Citing Kaufman v. Chase Manhattan Bank, N.A. (S.D.N.Y. 1973), 370 F. Supp. 276, 279, and other authorities, Madison argues that a cashier’s check is the equivalent of cash because the issuing bank stands behind the check and pledges its resources to the payment of the amount of the check on presentation. According to Madison, a bank may not dishonor such an instrument, for to do so would be inconsistent with the issuing bank’s representations and would undermine public confidence in the bank and its checks and thus deprive the cashier’s check of its essential utility as a “cash equivalent”. Accordingly, Madison contends that Valley Bank’s cashier’s check was good as against all the world and was impervious to dishonor. Thus, Madison contends that American had the right and obligation to hold the cashier’s check, to refuse Valley Bank’s request to return the instrument, to insist that the check be paid according to its terms, and to apply the proceeds of the check in discharge of David’s loan and lien. According to Madison and the trial court, the fact that American “gratuitously” returned the check to Valley Bank, did not obviate American’s obligation to discharge David’s loan and to release its lien on the collateral.
¶19 Given Madison’s arguments and the trial court’s reasoning along these lines, it is appropriate that we begin our analysis by expressing our disagreement with Madison’s basic premise — that an issuing bank may not dishonor its cashier’s check. While it is true that cashier’s checks may be considered as “cash equivalents” in the minds of the public and in commercial trade, and while various courts and commentators have taken the view, typically on public policy grounds, that an issuing bank may not assert its own defenses against or dishonor its cashier’s check, this rule is neither as universal nor as absolute as Madison suggests. (See, for example, Stringfellow v. First American Nat. Bank (Tenn. 1994), 878 S.W.2d 940. Although the appellate court ultimately sides with Madison’s approach, the appellate court discusses the differing lines of authority and the arguments for each.)
¶20 Importantly, “nothing in the U.C.C. suggests that cashier’s checks should be treated differently from other instruments subject to Articles 3 and 4 [Title 30, chapters 3 and 4, MCA].” Farmers & Merchants State Bank v. Western Bank (9th Cir. 1987), 841 F.2d 1433, 1440. See also Equitable Trust Co. v. G & M Const. Corp. (D. Md. 1982), 544 F. Supp. 736, 746; Santos v. First Nat’l State Bank of N.J. (N.J. Super.Ct.App.Div. 1982), 451 A.2d 401, 406.
¶21 Thus, and despite the “cash equivalent” approach, other courts have acknowledged that in limited circumstances an issuing bank may dishonor its cashier’s check. See, for example, the following and the cases cited therein: Farmers & Merchants State Bank, 841 F.2d at 1438-41; Godat v. Mercantile Bank of Northwest Cty. (Mo.Ct.App. E.D. 1994), 884 S.W. 2d 1, 3-4; Rezapolvi v. First Nat. Bank of Maryland (Md. 1983), 459 A.2d 183, 188-89. Appropriate to our later discussion in this opinion, the Maryland Court of Appeals in Rezapolvi stated:
Despite the language in some opinions suggesting that a bank may never dishonor its cashier’s check, courts have recognized that a bank may do so under very limited conditions. These are where the holder has dealt with the bank in connection with the transaction or is not a holder in due course, and where the cashier’s check was obtained by fraud upon the bank or under certain circumstances, where there was no consideration given to the bank for the instrument.
Rezapolvi, 459 A.2d at 188-89.
¶22 Accordingly, contrary to Madison’s basic argument, depending upon the status of the funds used to purchase the Valley Bank cashier’s check and American’s status — i.e., whether it was or was not a holder in due course under the UCC as regards this transaction — American was not in the unassailable position that Madison argues it was. Indeed, the fact that the aborted loan pay-off at issue here was initiated by the delivery of a cashier’s check does not, in and of itself, dispose of this case. Rather, it is necessary that we look to other provisions of Montana’s UCC as those are applicable to the case sub judice.
¶23 Underlying the District Court’s decision and Madison’s arguments is the premise that American initially took the Valley Bank cashier’s check for value, in good faith and without notice of any defect or defense with the result that the subsequent notice of the stolen nature of the funds used to purchase the instrument did not defeat American’s ability to negotiate the Valley Bank cashier’s check free of defenses. The trial court and Madison reason that American’s return of the check instead of presenting it for payment was a gratuitous act. Thus, the debt was still deemed discharged and the lien released.
¶24 For this approach to be legally supportable, however, it must first be established that American was a holder in due course — a concept not addressed in the trial court’s decision. That is, if American enjoyed holder-in-due-course status before it returned the check to Valley Bank, then Madison and the trial court are correct. American could have presented the check to Valley Bank for payment free of defenses and it should have insisted that Valley Bank pay the check. Section 30-3-305, MCA.
¶25 If American was not a holder in due course, then § 30-3-306, MCA, comes into play. This section provides:
A person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds. A person having rights of a holder in due course takes free of the claim to the instrument.
Thus, since David stole the funds he used to purchase the Valley Bank cashier’s check delivered to American, American’s claim to the check was subject to Debra’s ownership interest in the funds stolen to purchase it. Furthermore, American’s claim to the check was subject to Valley Bank’s ability to refuse payment and assert Debra’s ownership interest as a defense, subject only to joining Debra in the lawsuit to also personally assert her claim of theft. Section 30-3-305(3), MCA. See also Official Comment No. 4 to 1991 Amendment of § 30-3-305, MCA. Accordingly, whether American was a holder in due course of the Valley Bank cashier’s check is critical.
¶26 Under § 30-3-302(1), MCA, a holder in due course is one who holds an instrument if:
(a) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
(b) the holder took the instrument:
(i) for value;
(ii) in good faith;
(iii) without notice that it is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;
(iv) without notice that the instrument contains an unauthorized signature or has been altered;
(v) without notice of any claim to the instrument stated in 30-3-306; and
(vi) without notice that any party to the instrument has any defense or claim in recoupment stated in 30-3-305(1).
The elements of this statute being in the conjunctive, all must be present; the failure to meet any one of the requirements defeats the holder-in-due-course status. Farmers & Merchants State Bank, 841 F.2d at 1443; Godat, 884 S.W.2d at 5.
¶27 In short, unless American could have demonstrated that it had already taken the instrument in good faith and for value at the time it was notified that the funds used to purchase the Valley Bank check were stolen, then it was not a holder in due course and, as pointed out above, American’s claim to the check would have been subject to Debra’s property interest in the check (§ 30-3-306, MCA) and to Valley Bank’s ability to dishonor the instrument (§ 30-3-305(3), MCA, and Rezapolvi, 459 A.2d at 188-89). It follows, then, that we must determine whether, on the facts here, American satisfied the statutory requirements for obtaining holder-in-due-course status. We conclude that it did not.
¶28 While American initially received the Valley Bank check in good faith and without notice of the underlying theft, once American was advised of the theft it could not go forward in “good faith” and “without notice” of Debra’s adverse claim and Valley Bank’s defenses. “Good faith” means “honesty in fact and the observance of reasonable commercial standards of fair dealing.” Section 30-3-102(1)(d), MCA.
Although fair dealing is a broad term that must be defined in context, it is clear that it is concerned with the fairness of conduct rather than the care with which an act is performed.
Uniform Commercial Code § 3-103 cmt. 4, 2 U.L.A. 24 (1990). We would be hard-pressed to conclude that honesty in fact and fairness of conduct would allow a financial institution to negotiate an instrument once having been notified that the instrument was stolen or was purchased with stolen funds.
¶29 As to notice, “[njotice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction. ...” Section 30-1-201(27), MCA. “To be effective, notice must be received at such time and in such manner as to give a reasonable opportunity to act on it.” Section 30-3-302(6), MCA. There is no dispute that American was notified of the theft of funds used to purchase the Valley Bank check prior to the note marked “PAID” and the lien release leaving American’s business premises. At the time it received notice, American still had time and was fully capable of reversing the administrative steps it had taken to process the loan pay-off. Thus, the notice of the theft given American by Valley Bank was an effective notice that American could not simply ignore.
¶30 Given the timing of the delivery of the Valley Bank cashier’s check to American followed by American’s processing of the loan pay-off and the subsequent notice of the stolen nature of the funds, the crucial inquiry then becomes: Had American taken the instrument “for value” by the time notice was received? If American took the cashier’s check for value prior to Valley Bank’s notice, then all of the § 30-3-302(1), MCA, elements would have been satisfied and American would have enjoyed the status of a holder in due course. To the contrary, if, at the time of Valley Bank’s notification, American had not yet given value for the check — if American had not yet irrevocably changed its position — then the statutory elements would not have been satisfied (and could not thereafter be satisfied) and American would not be a holder in due course.
¶31 “Value” is defined in § 30-3-303, MCA. This statute, in pertinent part, provides:
(1) An instrument is issued or transferred for value if:
(a) the instrument is issued or transferred for a promise of performance, to the extent that the promise has been performed;
(b) the transferee acquires a security interest or other lien in the instrument other than a lien obtained by judicial proceedings;
(c) the instrument is issued or transferred as payment of, or as security for, an existing obligation of any person, whether or not the obligation is due;
(d) the instrument is issued or transferred in exchange for a negotiable instrument; or
(e) the instrument is issued or transferred in exchange for the incurring of an irrevocable obligation to a third party by the person taking the instrument.
¶32 American argues that the applicable provision of this statute is subsection (l)(a); Madison contends that subsection (l)(c) controls. We conclude that it is unnecessary that we decide which subsection is appropriate, for under either American did not give value or irrevocably change its position before receiving Valley Bank’s notice.
¶33 As noted by the court in Godat:
“One can only take ‘for value’ by giving in return something ‘of value’ to the one from whom the instrument is taken.” “Good faith” is in large part a subjective test but “for value” is objective. Plaintiff’s position essentially eliminates the objective “for value” requirement by substituting therefore a subjective belief that value is being given. The premise of the “holder in due course” doctrine is to protect those persons who part with something of value in reliance on the negotiability of a check or other instrument. Persons who give up nothing of value do not need the protection of the doctrine because they put nothing at risk and give up nothing.
Godat, 884 S.W.2d at 6 (citing Blue Cross Health Services v. Sauer (Mo.Ct.App. 1990), 800 S.W.2d 72).
¶34 That was American’s situation here. When it first received the Valley Bank cashier’s check, American had no notice or knowledge of the stolen nature of the funds. Neither had it parted with value, however. American’s stamping the note “PAID,” its executing the lien release, and its placing these documents in the outgoing mail basket, were merely internal administrative actions which, up until the point in time that the documents were placed into the possession of the post office for delivery, did not irrevocably commit American to the pay-off. To that point, American was just as capable of administratively reversing the steps it had taken to process the loan pay-off as it was in performing those steps in the first place. The note had not actually been returned “paid” nor had American’s lien actually been released. American had not irrevocably changed its position. At the point it received notice from Valley Bank, nothing which American had accomplished in processing the loan pay-off had any effect on American’s secured position. Objectively, at that point, American had given up nothing; it had put nothing at risk. American had not given value — even assuming that it subjectively believed that value was being given when it commenced the loan pay-off process. Godat, 884 S.W.2d at 6.
¶35 Putting this within the framework of § 30-3-303(1)(a), MCA, American effectively agreed that it would discharge the note and release the lien on David’s equipment in exchange for payment of his debt. American was in the process of performing its end of this bargain when it was notified by Valley Bank of the underlying stolen nature of the funds which had been transferred to American. If (1)(a) is the applicable subsection, after notification American would be a holder in due course only to the extent that it had actually performed, i.e., to the extent that it had actually discharged the note and released the collateral lien. See Hawkland & Lawrence UCC Series § 3-303:02 (1994).
The holder is, in essence, required to mitigate the damages of the party having the defense. Discovering a defense to the instrument he bargained for will usually permit the holder to suspend the remainder of his counter-performance. Not being required to perform, the holder is not given holder in due course status and is, thus, not permitted to increase the obligor’s loss by rendering an excused performance. The holder is not usually harmed by his suspension of performance. Since a negotiable instrument is simply a promise to pay money, the holder will not be deprived, as in the case of a contract to purchase goods, of some needed commodity.
Hawkland & Lawrence UCC Series § 3-303:02 (1994). Since American was fully capable of administratively undoing the loan pay-off and retaining its secured position, it was required to suspend performance. Had it proceeded in the face of Valley Bank’s notice, American could not have claimed holder-in-due-course status.
¶36 Similarly, in the context of § 30-3-303(1)(c), MCA, the result is the same on these facts. While the Valley Bank check was issued to American in payment of David’s antecedent obligation, American had not given value because it had not actually released its security interest in the collateral; it had not irrevocably committed itself to the transaction; it had not put its secured position at risk. Again, while it had taken certain internal administrative steps toward discharging the note and releasing the lien, those could all be administratively rescinded and, in fact, were rescinded. Having not irrevocably released its security interest, American had not taken the Valley Bank cashier’s check for value by the time it received notice. See Hawkland & Lawrence UCC Series § 3-303:06 (1994).
¶37 In short, under either § 30-3-303(l)(a) or (l)(c), MCA, American did not give value and was, therefore, not a holder in due course. It took the cashier’s check subject to Debra’s possessory and property interest and subject to Valley Bank’s defenses.
¶38 As regards the trial court’s reliance on § 30-3-310(1), MCA, we conclude that the court erred by not first determining whether American was a holder in due course of the cashier’s check. Section 30-3-310(1), MCA, provides, in pertinent part:
Unless otherwise agreed, if a ... cashier’s check ... is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation.
Madison maintains that, under this law of “absolute payment,” the payee/obligee (here, American) who takes a cashier’s check no longer has recourse against the remitter/obligor (David) because the obligation is discharged with the result that the payee/obligee (American) has recourse only on the instrument against the issuing bank (here, Valley Bank).
¶39 As a general proposition, we do not disagree. If, in fact, American “took” the Valley Bank cashier’s check for David’s obligation, then, clearly, under § 30-3-310(1), MCA, David’s obligation is discharged and Madison must prevail as against American. This, however, begs the question: Did American “take” the Valley Bank cashier’s check under the facts of this case? For the reasons set forth above, we determine that it did not.
¶40 Moreover, both parties and the trial court rely on Transamerica Insurance Company v. Long (W.D. Pa. 1970), 318 F.Supp. 156, in support of their respective positions. We do not find this case at odds with our decision here. While the court ruled that cashier’s checks are like money and that title passes with delivery, the court also made it clear that if the recipient takes stolen funds with knowledge of the theft — with mala fides, in the words of the court — then the holder’s title will be defeated. Transamerica, 318 F.Supp. at 160. Again, in the case at bar, before American “took” the cashier’s check it had received notice of the stolen nature of the funds used to purchase the Valley Bank cashier’s check. Under such circumstances its title would be defective.
¶41 Finally, our discussion would not be complete without also observing that this case seemingly proves the adage that “no good deed goes unpunished.” In spite of doing what most would agree was honest, responsible, fair and morally correct, American’s reward for “doing the right thing” was the loss of its security interest and any real ability to obtain payment for the loan it made to David. American was determined to be the “stuckee” despite its being the least blameworthy of all of the participants in this unfortunate case.
¶42 Of the players, Madison was in the best position to protect itself. It had constructive and actual knowledge of American’s security interest. Yet, it delivered two checks payable to David and Debra without taking any of the commercially reasonable steps to protect its purchase that are common in these sorts of transactions. Madison could have insisted on the lien release before payment; it could have withheld part of the payment pending the lien release; it could have confirmed the pay-off amount and paid part of the proceeds directly to American; it could have made payment jointly to American to the extent of its security interest; it could have gone with David to American and witnessed the pay-off and obtained a release; or it could have escrowed the payment until the lien release was obtained. Madison did none of these things. Instead, it merely relied on David’s bald assurance that American’s lien would be released.
¶43 Likewise, Valley Bank could have verified that Debra’s endorsement on the Bozeman bank’s check used to purchase the $20,000 cashier’s check was valid. It did not. Then, of course, there are the real culprits, David and Debra, whose scam left Madison, American and Valley Bank all holding the bag.
¶44 In a shoot-out using the weapons of the UCC, there is no guarantee that the survivor will be the party wearing the white hat. Fortunately however, on the facts of this case, the proper application of the code produces not only the correct legal result, but also the one most justifiable from a good public policy, common sense and basic fairness point of view.
¶45 We hold that the District Court’s decision on summary judgment awarding superior rights in the collateral to Madison was in error and must be reversed.
II.
¶46 Did American waive its rights under its written security agreement by acquiescing to David’s sale of the collateral in a manner inconsistent with the terms of the security agreement.
¶47 By way of cross appeal, Madison argues that the District Court erred in not ruling that American waived its rights under its written security agreement and, thus, extinguished its lien by “authorizing” David’s sale of the collateral. Specifically, on July 5, 1994, Debra called American to advise that the loan would be paid off and to obtain the pay-off figure. Jo Ann testified that she answered “good, I’ll tell Della,” when Debra stated that they (presumably David and Debra) were selling off the loader and expected to pay off the loan by Thursday, July 7th. Madison contends that in her July 5, 1994 conversation with Debra, Jo Ann, with knowledge of the troubled history of the loan, with knowledge of American’s security interest, and with knowledge that the security agreement forbade sale of the collateral without written consent, nonetheless acquiesced in the disposal of the collateral without contemporaneously imposing commercially reasonable restrictions on the sale. Moreover, Madison maintains that a secured party authorizes its debtors’ sale of the collateral when it accepts the proceeds from the sale.
¶48 The District Court concluded that American did not in any way consent to the sale and to the extinguishment of its security interest as contemplated by § 30-9-306(2), MCA, by merely cooperating in giving Debra a pay-off figure. We agree with the trial court on this issue.
¶49 Section 30-9-306(2), MCA, provides:
Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.
[T]he theory of subsection 9-306(2) and the other cutoff provisions in the [UCC] is that, if the secured party authorizes the sale, he or she should not legitimately be able to continue to look to the collateral as security. Further, a buyer under such circumstances is justified in believing that the collateral will not be looked to. However, when both the secured party and the buyer of the collateral expect the secured party to continue to look to the collateral as security, neither of those justifications exist. In 1990, the Permanent Editorial Board approved PEB Commentary No. 3 and supplemented the second paragraph of official Comment 3 to Section 9-306; both the Commentary and the supplemented Comment confirm the Editorial Board’s position that a transferee will not acquire the collateral free and clear of the security interest if the secured party authorizes the disposition subject to his or her security interest.
Hawkland, Lord & Lewis UCC Series § 9-306:2 (1997).
¶50 In the case at bar, we cannot conclude that despite whatever knowledge of the history of David’s loan she had at the time, Jo Ann’s comment “good, I’ll tell Della,” in the context in which it was made, could have been construed by anyone as American’s authorization or acquiescence that the loader could be sold free of American’s perfected security interest. In fact, the evidence is overwhelmingly to the contrary. The record gives every indication that Debra, David, Madison and American all understood that David’s loan would be paid from the proceeds of the sale of the equipment to Madison and that the disposition of the collateral was subject to American’s security interest. There is no factual basis in the record here to conclude otherwise.
¶51 Madison also argues that American waived its rights under the security agreement. It is well established, however, that waiver is the voluntary, intentional relinquishment of a known right and will be declared only when the waiving party clearly manifests such an intention. McGregor v. Mommer (1986), 220 Mont. 98, 110, 714 P.2d 536, 543 (citations omitted). The presence of voluntariness and requisite intent are necessarily questions of fact. McGregor, 220 Mont at 110, 714 P.2d at 544. Again, there is no evidence in the record on appeal that American waived its rights under the security agreement. Indeed, the evidence is to the contrary. The trial court’s finding that American did not consent to or authorize the sale of the collateral free of its security interest is supported by substantial evidence and must be upheld.
¶52 Finally, we find no merit to Madison’s argument that American accepted the proceeds from the sale of the collateral and, thus, discharged David’s obligation. As pointed out above, American did not accept the Valley Bank cashier’s check, but, in fact, returned it to Valley Bank. American has never received any of the proceeds of the sale of the collateral.
¶53 We reject Madison’s arguments on its cross appeal and affirm on this issue.
III.
¶54 The judgment against Valley Bank.
¶55 The District Court also rendered summary judgment in favor of Valley Bank and against American on American’s claim of indemnity. While American also appealed from this summary judgment, given our decision as to Issues I and II, this appeal is moot and is properly dismissed with prejudice.
Conclusion
¶56 In summary, we hold that American retained its perfected security interest in the collateral and that its rights are superior to those of Madison. Accordingly, we reverse the District Court’s contrary decision and remand for further proceedings, including the assessment of attorney fees pursuant to § 30-9-511, MCA, and costs against Madison, and for entry of a judgment consistent with this opinion. The appeal against Valley Bank is dismissed with prejudice.
CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, GRAY, HUNT and LEAPHART concur.
. Whether the $20,000 check was or was not stolen and forged is not relevant to our decision. It is undisputed that at the time American received notification by Valley Bank and returned the check on July 8, both Valley Bank and American were operating on Debra’s statement earlier that same day that the $20,000 check was stolen and forged. That she changed her story seven days later, does not alter the facts on July 8, and it is on those facts that we decide this case.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Appellant Anita Bueling (Bueling) appeals from the April 10, 1997 order of the Eighth Judicial District Court, Cascade County, denying Bueling’s motions to set aside the jury verdict and for a new trial. We reverse in part, affirm in part, and remand for a new trial.
¶2 Bueling raises the following issues:
¶3 1. Did the District Court err in granting Respondents Dr. Douglas Swift (Dr. Swift) and Dr. David Anderson (Dr. Anderson) four peremptory challenges each?
¶4 2. Did the District Court err in granting Respondents’ motion in limine prohibiting Dr. Randall Schaffer (Dr. Schaffer) from testifying as a fact witness for Bueling?
Factual and Procedural Background
¶5 In the afternoon of September 11, 1993, Bueling’s husband, David, who was suffering from flu-like symptoms, visited the Doctor’s Convenience Care Clinic in Great Falls. The doctor on duty at the clinic, Dr. William Gertson (Dr. Gertson), determined that David was quite ill and immediately ordered that he be transported by ambulance to the Columbus Hospital Emergency Room (ER). David’s regular physician was not on call, and that doctor’s patients were being covered by Dr. Swift, an internist. Dr. Gertson contacted Dr. Swift and informed him that David was very ill and being transferred to the ER.
¶6 David arrived at the ER at approximately 2:45 p.m., where he was examined by Dr. Betty Kuffel (Dr. Kuffel). The parties dispute the time at which Dr. Swift arrived at the ER. Bueling maintains that Dr. Swift did not arrive until about 5:45 p.m., nearly three hours after David was admitted. Dr. Swift testified that he arrived at about 3:30 p.m. The director of medical records testified that Dr. Swift’s notes indicated that he dictated David’s medical history and physical examination at 5:44 p.m.
¶7 After examining David, Dr. Swift consulted with Dr. Anderson, a pulmonologist, over the telephone. Dr. Anderson testified that he received the phone call from Dr. Swift between 4:15 and 4:30 p.m. Dr. Swift told Dr. Anderson that David was very ill with bilateral pulmonary infiltrates and possibly pneumonia. Dr. Anderson agreed to see David and initiated his transfer to the Intensive Care Unit. Dr. Anderson examined David at about 6:30 p.m. Dr. Anderson performed a bronchoscopy and inserted a Swan-Ganz catheter into David’s pulmonary artery to obtain cardiac output data. David died of a heart attack before Dr. Anderson received the data. It was later determined that David was suffering from hantaviral pulmonary syndrome, the first reported case in Montana.
¶8 Bueling filed a wrongful death and survival action against Drs. Swift and Kuffel and Columbus Hospital. During the discovery phase, Bueling amended her complaint to add Dr. Anderson as a defendant. Subsequently, Bueling moved the District Court to limit the number of peremptory challenges allowed the defendants collectively to four. Bueling argued that because the defendants were not hostile to each other, they should not receive additional peremptory challenges. At the pretrial conference, the District Court determined that Drs. Swift and Anderson would each get four peremptory challenges and that Dr. Kuffel and Columbus Hospital, who were represented by the same counsel, would share four.
¶9 At the pretrial conference, the District Court also granted Dr. Anderson’s motion in limine to prevent Bueling from calling Dr. Schaffer as a witness. Dr. Schaffer is a family friend of the Buelings who examined David’s records at Columbus Hospital a week after his death. Bueling sought to call Dr. Schaffer to testify as an expert witness on the standard of care and as a fact witness regarding what he found in David’s file. The District Court found that Dr. Schaffer was not qualified as an expert and that the jury would be likely to confuse his fact testimony with that of an expert. The District Court ruled that Dr. Schaffer would not be allowed to testify.
¶10 Prior to trial, Bueling settled with Dr. Kuffel and Columbus Hospital. She did not ask the court to reconsider its decision on peremptory challenges prior to trial. The case proceeded to trial, and Drs. Swift and Anderson each exercised four peremptory challenges. A jury entered a verdict in their favor, finding no negligence on the part of either doctor. Bueling filed motions to set aside the jury verdict and for a new trial. The District Court denied her motions.
Discussion
¶11 1. Did the District Court err in granting Drs. Swift and Anderson four peremptory challenges each?
¶12 In King v. Special Resource Management (1993), 256 Mont. 367, 374, 846 P.2d 1038, 1042, this Court specifically set forth a procedure for district courts to follow in determining whether to grant additional peremptory challenges:
Additional peremptory challenges are granted to multiple parties on one side only if they are hostile to one another. The trial court determines hostility prior to the beginning of voir dire and bases its decision only on the facts presented to it before its ruling. Whether or not the pretrial procedures were followed prior to the determination of hostility, if an appellate review determines that peremptory challenges were improperly granted, prejudice is presumed as a matter of law.
The parties seeking additional peremptory challenges must request them prior to trial. In the rare instance when the District Court holds no pretrial conference, the question of peremptory challenges should be raised by appropriate written motion filed prior to voir dire, setting forth all facts and references tending to support its claim of hostility. The trial court should rule on the peremptory challenge issue before voir dire begins. If a pretrial order is used, the District Corut is required to include its decision on the number of peremptory challenges in the pretrial order. To afford a basis for review, the trial court should expressly set forth in the record the reasons for its ruling and the facts on which it relied in making its decision. [Citations omitted.]
¶13 In this case, Bueling moved the District Court to limit the number of peremptory challenges allowed the defendants collectively to four. At the pretrial conference, the court granted four challenges to Dr. Swift, four to Dr. Anderson, and four to Columbus Hospital and Dr. Kuffel. The following discussion provides the District Court’s rationale:
The Court:... [T]here is a question that was raised in the pretrial order regarding number of peremptory challenges. My reading of the law is the doctors are adverse to each other, each of them will receive four peremptory challenges, Dr. Kuffel and Columbus Hospital, they will receive four peremptory between the two of them. They are represented by the same counsel, I don’t believe their interests are adverse in this case.
Mr. Walsh [counsel for Dr. Kuffel]: We agree.
The Court: Mr. Dubek, I recognize the case you cited, but the answer to me that these doctors, reading the depositions and who they are going after, they are saying it’s somebody else’s problems rather than their own, they are—
Mr. Dubek [counsel for Bueling]: For the record, I don’t think anywhere in [any] of the depositions does one defendant point the finger at the other defendant, according to that case we cited, it’s incumbent upon the defendants to seek out and demonstrate to the court they are hostile, and they haven’t done that. Therefore, I think we are entitled to maintain that each side has four peremptory challenges.
Mr. Aiken [counsel for Dr. Swift]: I make the comment, Judge, certainly there is a clear delineation in care that occurred at 6:30. I don’t know any of us of [sic] raised specifically somebody else’s defense, I think the court is correct that at 6:30 the transfer of care occurred.
I think the court can do whatever it wants in the number of peremptories, and some sort, of either four to each of the physicians and four to the hospital, and Dr. Kuffel, or some compromise thereof, I think would be fair.
The Court: Okay. Mr. Walsh, do you have argument?
Mr. Walsh: If you analyze the case in terms of breach of duty, the doctors pretty much agree. They all agree no one breached a duty. The case involves existence of duty. It looks that way. There are definite distinctions between physicians. Dr. Kuffel — I am taking the position, she never was the primary treating physician, and her duty was seriously limited. Dr. Swift may not agree with that. The issue of intent and when duties changed between Dr. Swift and Anderson, look at it that way; each need four separate. They are not necessarily attacking each other, but their interests are distinctly different. There is potential for one physician to escape liability at possibly the expense of another. That’s all you need.
The Court: All right. I will stand by original ruling on that....
Bueling argues that because the defendants failed to set forth sufficient facts to show hostility and because the defendants did not move the court for additional peremptories, the District Court erred in granting them.
¶ 14 We do not agree with Bueling that a defendant must move for additional peremptories before the District Court is allowed to grant them. Bueling moved the court to consider the issue of additional peremptories, and the District Court addressed it. However, in addressing the issue, the District Court failed to make specific findings in the pretrial order or on the record to explain its decision to grant additional peremptory challenges. The procedure set forth in King is meant to afford this Court a basis of review, and the District Court erred in disregarding it. As stated in Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 317, 588 P.2d 493, 501, “if there is not a sound basis in the record at the time of the ruling, and if the reasons for the ruling are not set forth, we cannot say the parties have had the benefit of the trial court’s best judgment” However, King requires this Court to review the District Court’s grant of peremptory challenges regardless of whether it followed the appropriate pre-trial procedures. King, 846 P.2d at 1042. Thus, we review the record at the time of the District Court’s ruling to determine whether the peremptory challenges were properly granted.
¶15 Section 25-7-224, MCA, states that “each party is entitled to four peremptory challenges ....” This Court has interpreted “each party” to mean each side, unless the codefendants are hostile to one another. Leary v. Kelly Pipe Co. (1976), 169 Mont. 511, 549 P.2d 813, overruled on other grounds by King, 846 P.2d at 1042. As we noted in King, “district courts have no discretion in granting additional peremptory challenges. Multiple parties on one side are either hostile or they are not hostile.” King, 846 P.2d at 1042-43. The district court must determine hostility on a case-by-case basis. King, 846 P.2d at 1044.
¶16 We reviewed the district court’s finding of hostility in Hunsaker, 588 P.2d at 493. Hunsaker was admitted to the hospital with heart problems and suffered serious emotional strain resulting in nervousness, hallucinations, and a seizure while in the hospital’s care. Hunsaker, 588 P.2d at 497. Ultimately, Hunsaker was injured when he left his hospital security room, ran down the hall, jumped through a solarium window, and fell twenty feet to the ground. Hunsaker, 588 P.2d at 497. Hunsaker filed an action against Bozeman Deaconess Foundation, operator of the hospital, alleging that the hospital was negligent in caring for him. Hunsaker, 588 P.2d at 497. He filed a separate action against the treating physicians for their negligent diagnosis and care. Hunsaker, 588 P.2d at 497. His wife also filed a negligence claim against the hospital for loss of consortium. Hunsaker, 588 P.2d at 497. Over Hunsaker’s objection, the district court consolidated the three actions and, at trial, granted each defendant four peremptory challenges. Hunsaker, 588 P.2d at 498. The jury returned a verdict for the defendants. Hunsaker, 588 P.2d at 497.
¶17 On appeal, Hunsaker argued that the district court erred in granting additional peremptory challenges because the defendants had not made the requisite showing of hostility. Hunsaker, 588 P.2d at 498. This Court agreed, finding that “[t]he defense theories of the hospital and defendant physicians meshed like the finest gearshift mechanism.” Hunsaker, 588 P.2d at 500. We noted that though each defendant was represented by separate counsel, each essentially asserted no negligence on its part or on the part of the other defendants. Further, we held: “Defendants did not try to pass the blame off to each other. It is true each defendant had his own interest to protect in that each could have suffered an adverse jury verdict — but there is no showing that their interests were hostile to each other.” Hunsaker, 588 P.2d at 500-01.
¶18 At the pretrial conference, counsel for defendants argued that while they “are not necessarily attacking each other,... their interests are distinctly different. There is potential for one physician to escape liability at possibly the expense of another. That’s all you need.” To the contrary, this Court held in Hunsaker that a defendant’s interest in protecting him or herself from an adverse jury verdict does not necessarily indicate hostility toward codefendants.
¶19 Drs. Swift and Anderson argue that Bueling alleged separate acts of negligence against each defendant occurring at separate times. Dr. Anderson also asserts that Dr. Swift’s theory — that David was in a stable condition when care was transferred to Dr. Anderson — implicitly shifts responsibility to him. In Kudrna v. Comet Corp. (1977), 175 Mont. 29, 572 P.2d 183, this Court did state that allegations of separate acts of negligence against each defendant suggest hostility. Kudrna is distinguishable; in that case, not only did each party present a separate defense, but also blamed the negligence of the other for the accident. Kudrna, 572 P.2d at 187. In this case, both doctors assert that they were not negligent in their diagnosis and care of David. Dr. Swift did not plead any affirmative defenses or cross- claim against Dr. Anderson, and Dr. Anderson’s affirmative defenses, i.e., failure to state a claim and contributory negligence, do not suggest any hostility toward Dr. Swift. Further, we do not agree that by maintaining that his care of David was not negligent, Dr. Swift was necessarily implying that Dr. Anderson’s care was negligent. Nothing in the record supports such an implication.
¶20 Dr. Swift argues that he and Dr. Anderson retained separate counsel, filed separate answers, conducted separate discovery, and were insured by different insurers. In Hunsaker, each defendant retained separate counsel, and the claims against each were brought in an entirely separate action; however, we determined that the defendants’ interests and theories of defense were not hostile. Hunsaker, 588 P.2d at 500. Likewise, in this case, the record does not contain sufficient evidence on which to base a finding of hostility. We hold that the District Court erred in granting Drs. Swift and Anderson additional peremptory challenges.
¶21 This Court has held that when one side is granted additional peremptory challenges in error, a new trial must be granted. King, 846 P.2d at 1042. In King, we noted that with a grant of additional peremptory challenges comes a tactical advantage that is unmistakable, but nearly impossible to prove. King, 846 P.2d at 1042. The difficulty of proving that one was prejudiced by the improper grant of additional peremptories caused this Court to overrule its previous case law and hold that “if an appellate review determines that peremptory challenges were improperly granted, prejudice is presumed as a matter of law.” King, 846 P.2d at 1042 (overruling Leary, 549 P.2d at 813).
¶22 Accordingly, we hold that Bueling was prejudiced by the District Court’s grant of additional peremptory challenges. We reverse and remand for a new trial.
¶23 2. Did the District Court err in granting Respondents’ motion in limine prohibiting Dr. Schaffer from testifying as a fact witness for Bueling?
¶24 A district court has broad discretion to determine whether evidence is admissible; thus, we will not overturn a district court’s evidentiary ruling absent an abuse of discretion. Waller v. Hayden (1994), 268 Mont. 204, 885 P.2d 1305. In this case, the District Court found that the jury would likely confuse Dr. Schaffer’s testimony with that of a medical expert. Thus, it precluded Dr. Schaffer from testifying regarding his review of David’s medical records.
¶25 Dr. Schaffer resides in Ohio and has been a friend of the Bueling family for about 20 years. When he was in town for David’s funeral, the family asked Dr. Schaffer if he would review David’s records at Columbus Hospital. Bueling contends that Dr. Schaffer was prepared to testify that when he reviewed David’s records the week after his death, he found them void of a history and physical examination. Bueling argues that Dr. Schaffer’s testimony would have supported her theory that David did not receive adequate or timely care and that the history and physical examination found in David’s records were fabricated by Dr. Swift after the fact.
¶26 Under Rule 403, M.R.Evid., relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....” After reviewing Dr. Schaffer’s deposition, the District Court found his proffered testimony to have minimal probative value. When asked about whether he recalled seeing the history and physical examination in David’s medical records, Dr. Schaffer testified: “I don’t recall seeing that. Now, that doesn’t mean it wasn’t there. I’m just saying I don’t recall seeing it.” We agree with the District Court that, assuming Dr. Schaffer’s testimony was relevant, it was of minimal probative value.
¶27 Further, Bueling called other medical doctors to testify as experts at trial regarding the standard of care. The District Court determined that if it allowed Dr. Schaffer to testify as to his review of David’s records, the jury would likely confuse his testimony with that of an expert. We hold that the District Court did not abuse its discretion in finding that the minimal probative value of Dr. Schaffer’s testimony was outweighed by the possibility of confusing or misleading the jury and prejudicing Drs. Anderson and Swift. Thus, we affirm the District Court’s granting of the motion in limine prohibiting Dr. Schaffer from testifying.
¶28 Based on the foregoing, we reverse in part, affirm in part, and remand to the District Court for a new trial.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON, HUNT, REGNIER and TRIEWEILER concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 This is an original proceeding in this Court involving an application for a writ of supervisory control. Randy Keyes (Keyes) is the defendant in a criminal proceeding pending in the Thirteenth Judicial District Court, Yellowstone County, in which he is charged with three alternative counts of deliberate homicide in connection with a shooting incident that occurred on September 30,1994. On that date, Keyes and Dean LaFromboise exchanged gunfire from their respective vehicles in a parking lot in Billings, Montana. Jacine Chapel was a passenger in the vehicle driven by Dean LaFromboise, and in the process of the shoot-out, she was killed. Although the State has evidence that it was a bullet from Keyes’ gun that killed her, its proof is not conclusive. Keyes did not know that Chapel was in the vehicle driven by LaFromboise. However, the State claims that some testimony at trial may establish that Keyes was at least aware that another person was in LaFromboise’s vehicle.
¶2 After the shooting incident, Keyes fled from Montana. He was subsequently apprehended approximately two years later, and was arraigned on August 20, 1996. The information charged Keyes with two alternative counts of deliberate homicide, one by purposely or knowingly killing Chapel and a second based on the State’s theory that Keyes was accountable for the conduct of a second shooter it then believed was in Keyes’ vehicle. It also charged Keyes with two alternative counts of attempt to commit deliberate homicide against LaFromboise.
¶3 Subsequently, on April 16, 1997, the State filed an amended information charging Keyes with three alternative counts of deliberate homicide. The first count charges Keyes with deliberate homicide of Chapel under the felony murder rule, alleging he caused her death while in the course of committing felony assault against LaFromboise. The second count charges him with deliberate homicide by accountability in violation of §§ 45-5-102 and 45-2-302, MCA. The third count charges him with deliberate homicide by accountability under the alternative theory that an unknown person was in his vehicle and fired the shots that killed Chapel.
¶4 It is the State’s theory that LaFromboise and Keyes had for several days engaged in a running gun battle that cumulated in the shoot-out and the death of Chapel. The State filed a “Just-Matt” notice, informing Keyes of its intent to introduce evidence of a prior course of conduct between Keyes and LaFromboise, including LaFromboise’s alleged robbery of Keyes and prior gun battles in the weeks prior to September 30, 1994.
¶5 Keyes filed a motion to dismiss the second count of the amended information and asserted several basis upon which the charge should be dismissed. At a hearing held on May 1, 1997, relating to other pending motions, the State orally moved to dismiss Counts I and III. A hearing on Keyes’ motion to dismiss Count II was held on May 5, 1997. After much discussion, the State withdrew its motion to dismiss Counts I and III. Subsequently, on May 7, 1997, the court denied Keyes’ motion to dismiss Count II.
¶6 On May 23, 1997, Keyes filed an application requesting that this Court issue a writ of supervisory control and assume supervisory jurisdiction over the issue of whether the second count states an offense under Montana law. The State agreed that this Court should accept supervisory control in order to determine the legal issue of first impression presented by the construction of Count II.
¶7 This Court granted Keyes’ application, assumed jurisdiction and ordered the parties to submit supplemental briefs addressing the legal issue of the propriety and sufficiency of the charge contained in Count II of the amended information.
¶8 Upon completion of our review of the parties’ briefs and the parties’ presentation at oral argument, we hold that Count II of the amended information does not state an offense under Montana law. We remand this case to the District Court with instructions to vacate its order denying Keyes’ motion to dismiss Count II and to enter an order granting his motion to dismiss Count II of the amended information.
¶9 The issue we address is whether the second count of the amended information charges an offense under Montana law.
DISCUSSION
I.
¶10 We briefly address the appropriateness of our exercise of supervisory control in this case. The exercise of supervisory control by this Court is authorized by Article VII, Section 2(2) of the Montana Constitution and by Rule 17(a), M.R.App.P. In Plumb v. Fourth Jud. Dist. Court (1996), 279 Mont. 363, 927 P.2d 1011, this Court clarified the standard for determining whether to exercise supervisory control. In that case, we followed the line of authority first enunciated in State ex rel. Whiteside v. District Court (1900), 24 Mont. 539, 63 P. 395 and stated that “supervisory control is appropriate where the district court is proceeding under a mistake of law, and in so doing is causing a gross injustice.” Plumb, 927 P.2d at 1014 (citations omitted). In Whiteside, this Court previously held that one of the functions of supervisory control is to “enable this court to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate.” Plumb, 927 P.2d at 1014 (citing Whiteside, 63 P. at 400).
¶11 In this case, Keyes urged this Court to exercise supervisory control, arguing that he would be prejudiced if the second count were allowed to stand, because the allegations in that count are ambiguous and he is not sure of what offense he is charged. He additionally contended that the second count does not charge an offense under Montana law. It would waste judicial resources if a subsequent conviction were overturned on appeal for that reason. The State similarly maintained that the interests of justice would be promoted by the exercise of supervisory control, because Count II presents a legal issue of first impression in Montana. We agree. Requiring Keyes to stand trial on this novel and ambiguously drafted charge will result in unnecessary expenditures of time and resources should this Court hold, as we do now, that Count II does not state an offense under Montana law. We accordingly accepted supervisory control to determine the legal issue of first impression.
II.
¶12 As noted, the amended information charges Keyes with three alternative counts of deliberate homicide. Although we address solely the issue of whether the second count charges an offense under Montana law, for purposes of our discussion, we examine both Counts I and Counts II of the amended information, which provide as follows:
COUNT I: DELIBERATE HOMICIDE (FELONY)
That Defendant, RANDY E. KEYES, attempted to commit, committed or is legally accountable for the commission of Felony Assault; and in the course of the Felony Assault, he or any person legally accountable for the Felony Assault caused the death of another human being, to-wit: Defendant and/or another person fired a series of gunshots into a vehicle, and while trying to cause reasonable apprehension of serious bodily injury to Dean LaFromboise, shot and killed Jacine Chapel; all of which is in violation of Section 45-5-102(l)(b), Mont. Code Ann., and against the peace and dignity of the State of Montana.
COUNT II: DELIBERATE HOMICIDE BY ACCOUNTABILITY (FELONY)
That the Defendant, Randy E. Keyes either before or during the commission of Deliberate Homicide with the purpose to promote or facilitate such commission, abetted or agreed with some other person in the commission of Deliberate Homicide, to wit: Randy E. Keyes encountered Dean LaFromboise, and the two abetted or agreed to engage in a mutual gun battle with one another; and during the promotion or facilitation of such gun battle, Jacine Chapel received several wounds and died as a result; all of which is contrary to Sections 45-5-102, and 45-2-302, Montana Code Annotated, and against the peace and dignity of the State of Montana.
¶13 The two statutes cited within Count II are Montana’s accountability statute and Montana’s felony murder statute. The relevant portion of Montana’s accountability statute provides:
When accountability exists. A person is legally accountable for the conduct of another when:
(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense. ...
Section 45-2-302, MCA.
¶14 Montana’s felony murder statute provides:
Deliberate homicide. (1) a person commits the offense of deliberate homicide if:
(b) the person attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, felony assault, aggravated assault, or any other forcible felony and in the course of the forcible felony or flight thereafter, the person or any person legally accountable for the crime causes the death of another human being.
Section 45-5-102, MCA.
¶15 In determining whether the second count charges an offense under Montana law, we examine that count in light of Montana’s accountability statute and Montana’s felony murder statute. When interpreting the statutes, the role of this Court “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Where the language is clear and unambiguous, no farther interpretation is required.
¶16 We further keep in mind that the purpose of the information is to apprise the defendant of the particular offense with which he is charged. Section 46-11-401(1), MCA, states in part that “[t]he charge must be a plain, concise, and definite statement of the offense charged ....” Indeed, the right of the accused to receive fair notice of both the nature and cause of the accusation is guaranteed by the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution.
¶17 The State advanced two different theories at various stages of this case as to why Count II does charge an offense, and Keyes, in turn, responds with arguments as to why it does not. We examine each argument and theory individually.
III.
¶18 Keyes paraphrases Count II to allege that he “was in the commission of the offense of deliberate homicide when he and LaFromboise agreed to commit the offense of deliberate homicide by agreeing to commit the offenses of shooting at each other and, during [the] commission of those offenses, another person was killed.” Keyes argues that this count does not allege the violation of a distinct statute under existing Montana law. He contends that instead, the State is attempting to charge Keyes for a crime that it has newly created by combining two statutes: Montana’s accountability statute, § 45-2-302(3), MCA, and Montana’s felony murder statute, § 45-5-102(b), MCA. Specifically, Keyes argues that Count II does not properly charge him with accountability for deliberate homicide, because that statute does not impose joint accomplice liability upon defendants for unintended, foreseeable crimes committed while they are engaged in an intended crime. He maintains that the State apparently recognized this and thus impermissibly combined the accountability statute with the felony murder statute, which provides for transferred intent.
¶19 It appears that at least initially the State did intend to charge Keyes with a crime created by merging the two statutes together. Although the State now contends that the second count alleges a straight-forward felony murder charge, the wording of the second count itself charges Keyes with deliberate homicide by accountability, and the language of that count traces the accountability statute. This is in direct contrast with the language of Count I, which everyone agrees charges Keyes with deliberate homicide under the felony murder rule and which accordingly traces the language of the felony murder statute. Furthermore, at the hearing before the District Court, the State repeatedly stated that in Count II it intended to charge Keyes with deliberate homicide through accountability and not deliberate homicide under the felony murder rule. It stated that the charge combined the accountability statute with the felony murder statute. As the State explained its theory to the District Court pursuant to these two statutes, Keyes, either before or during the commission of the deliberate homicide of Chapel, entered into an agreement with LaFromboise that they would try to kill each other by shooting at each other, which resulted in the death of Chapel.
¶20 We agree with Keyes that Count II does not charge an offense under Montana law. Count II does not properly charge Keyes with accountability for deliberate homicide. In order to be guilty under a theory of accountability, the plain language of Montana’s accountability statute requires that “either before or during the commission of an offense,” a person must agree to aid another person “in the planning or commission of the offense.” See § 45-2-302, MCA. In other words, the offense being committed and the offense that the parties agree to commit must be the same.
¶21 In this case, the offense Keyes is charged with committing differs from the offense he allegedly agreed to commit. The second count charges Keyes with the commission of deliberate homicide of Chapel. However, the facilitation of the commission of that offense was not an agreement between Keyes and LaFromboise to commit deliberate homicide of Chapel, but rather an agreement to engage in a gun battle. Montana’s accountability statute does not extend criminal liability to unintended, yet reasonably foreseeable deaths, such as the death of Chapel, that result as a consequence of committing the agreed upon offense. In other words, Montana’s accountability statute does not provide for transferred intent.
¶22 Because Montana’s accountability statute does not extend criminal liability for the unintended death of Chapel, it appears that the State thus grafted elements of Montana’s felony murder rule to the accountability statute. Unlike the accountability statute, Montana’s felony murder rule specifically provides for transferred intent. Pursuant to the doctrine of transferred intent, the fact that a crime (here, the alleged agreement between LaFromboise and Keyes to shoot each other) was directed at a person other than the person who ultimately was killed (Chapel), does not relieve the perpetrator of criminal responsibility. As that doctrine is embodied in the felony murder rule, a person who causes the death of another during the course of an enumerated felony is criminally responsible for the death. See § 45-5-102, MCA. In this case, the State has combined the elements of transferred intent from the felony murder statute with Montana’s accountability statute in order to charge Keyes for the death of Chapel.
¶23 Charging Keyes for a crime derived by combining elements of two statutes is impermissible. It is a fundamental principle in Montana that conduct does not constitute a criminal offense unless proscribed by statute. Section 45-1-104(2), MCA, states: “No conduct constitutes an offense unless it is described as an offense in this code or in another statute of this state.” In this case, the State did not charge Keyes with an offense in the code, but rather charged him with an offense it newly created by combining elements from two statutes.
¶24 The principle case upon which the State relies in support of its theory, State v. Garza (Kan. 1996), 916 P.2d 9, is distinguishable. In that case, the Kansas Supreme Court held that the defendant could properly be charged as an aider and abettor for the injury of a bystander that occurred when the defendant engaged in a gunfight with another combatant. Garza, 916 P.2d at 15. However, unlike Montana’s accountability statute, the accountability statute in Kansas specifically provides for accomplice liability for any other foreseeable crime committed during the course of the intended crime:
(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
Section 21-3205, K.S.A. As we have already stated, Montana’s accountability statute does not provide for transferred intent, and the State cannot create a new offense by grafting elements from Montana’s felony murder rule to that statute. Accordingly, we hold that the second count of the amended information does not charge an offense under Montana law.
IV.
¶25 The State asserted a different theory in its briefs to this Court as to why Count II charges an offense under Montana law. The State now contends that the second count charges Keyes with deliberate homicide of Chapel under Montana’s felony murder rule, with the underlying felony being accountability for the attempt by LaFromboise and Keyes to commit deliberate homicide against each other in the gun battle. The State asserts that attempted deliberate homicide constitutes a “forcible felony” within the meaning of Montana’s felony murder rule, § 45-5-102, MCA. At oral argument, the State clarified that the phrase in Count II which states “either before or during the commission of Deliberate Homicide” refers to the death of Chapel.
¶26 Keyes, on the other hand, contends that even under the State’s newly advanced theory, the second count does not allege an offense under Montana law. He disputes the State’s contention that attempted deliberate homicide is a “forcible felony” within the meaning of § 45-5-102, MCA. He argues that deliberate homicide is the most serious offense a person can commit, and that if the legislature had intended to include it as an underlying offense, it most certainly would have specifically enumerated it. Additionally, Keyes contends that the second count does not allege an offense under Montana law, because (1) engaging in a gun battle actually constitutes two offenses, not one; and (2) Keyes, as a victim of LaFromboise’s attempt to kill him, cannot be held accountable under Montana’s accountability statute.
¶27 Finally, Keyes contends that in any event, Count II by its plain language does not allege a violation of deliberate homicide under Montana’s felony murder rule, § 45-5-102, MCA. He argues that if the State had intended to charge him with felony murder, it would have used language similar to that used in Count I. He maintains that the State is bound by the plain language of the count and it cannot switch its theories midstream simply because it realizes that the manner in which it originally charged Keyes is legally insufficient.
¶28 Although we are inclined to accept the State’s view that attempted deliberate homicide does fall 'within the residual clause of the felony murder rule based upon the plain meaning of the statute and the definition of “forcible felony” at § 45-2-101(23), MCA, we need not reach that issue at this time. We hold that the second count does not allege an offense under Montana lav/ for several other reasons.
¶29 First, although the State describes the underlying felony as alleging that Keyes and LaFromboise attempted to kill each other, nowhere in Count II does the State actually charge Keyes with “attempt” to commit deliberate homicide. Each count of the information must give the defendant fair warning of the offense for which he is charged. See § 46-11-401(1), MCA: “The charge must be a plain, concise, and definite statement of the offense charged, including the name of the offense....” (emphasis added). Count II does not put Keyes on notice that the underlying felony is attempt to commit deliberate homicide.
¶30 Second, the express language of the felony murder rule refers to the commission of a single underlying felony offense. Specifically, a person commits “the offense” of deliberate homicide, if he commits a “forcible felony,” and in the course of the “forcible felony” causes the death of another human being. See § 45-5-102, MCA. But, engaging in a “mutual gun battle” does not constitute an offense under Montana law. Montana does not have, for example, a statute that outlaws dueling. At most, the charge that Keyes and LaFrom boise engaged in a mutual gun battle can be interpreted to allege the commission of two separate offenses: (1) Keyes attempted to kill LaFromboise, and (2) LaFromboise, in turn, attempted to kill Keyes. However, we have already stated that the count must clearly give notice to Keyes that he is charged with attempt to commit deliberate homicide.
¶31 Even if the charge was interpreted to allege the commission of two criminal offenses, Keyes becomes the victim of LaFromboise’s offense, and LaFromboise becomes the victim of Keyes’ offense. As a victim, neither can be legally accountable for a death caused by the other’s crime. Montana’s accountability statute excludes victims from such accountability. See § 45-2-302(3): “However, a person is not so accountable if: (a) he is a victim of the offense committed, unless the statute defining the offense provides otherwise. ...”
¶32 The State once again points to Garza. It contends that Garza lends support to its argument that where the underlying felony is accountability, a defendant may be held accountable as an aider and abettor where that defendant engaged in a mutual gun fight and created the situation whereby a bystander was killed. Garza, however, is distinguishable for reasons in addition to the reason we already pointed out. In that case, the state charged Garza with aggravated battery, not deliberate homicide, when a bystander was injured during a gun battle. Garza, 916 P.2d at 10. The Kansas Supreme Court held that “[g]iving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider and abettor as to crimes defined in terms of recklessness or negligence.” Garza, 916 P.2d at 15 (emphasis added) (citation omitted).
¶33 Unlike the defendant in Garza, Keyes is not charged with a crime defined in terms of recklessness or negligence. For example, the State did not charge him with negligent endangerment for engaging in conduct that created a substantial risk of death to others. Section 45-5-208, MCA. Rather, he is charged with deliberate homicide, a crime whose elements differ substantially. The Garza court did not address whether a person could be accountable in a similar situation for deliberate homicide under the felony murder rule; the court did not interpret Kansas’ felony murder statute; and, of course, the court did not address whether Kansas has a dueling statute. Accordingly, we do not find Garza to be persuasive.
¶34 Finally, we find merit to Keyes’ argument that by its plain language, the second count does not allege deliberate homicide under Montana’s felony murder rule. As written, the charge is ambiguous and difficult to understand. It took the State several briefs and an oral argument to sufficiently apprise this Court of the exact offense with which Keyes is charged. It certainly cannot be held to adequately apprise the defendant of the offense.
¶35 Although the State charged Keyes with novel allegations in the second count, what is strikingly obvious is the fact that the State did not charge Keyes with deliberate homicide under the felony murder rule for causing the death of Chapel while in the course of committing the forcible felony of attempted deliberate homicide against LaFromboise. The State clearly did not want to portray either Keyes or LaFromboise as a “victim.” Its theory is that the two men engaged in a running gun battle over a course of several days with the intent of continuing the battle until one or the other was killed. The State believes both men are responsible for Chapel’s death, and it thus attempted to find a way to charge both with accountability without having to declare either a victim. In so doing, however, it charged Keyes with the second count, which does not allege an offense under Montana law. However frustrated the prosecution may be with the law as it is currently written, it is not the prosecution’s function to fill gaps it perceives exist under the current criminal code by creating new offenses. We hold that the second count does not charge an offense under Montana law.
¶36 For these reasons, the District Court is directed to vacate its order denying Keyes’ motion to dismiss the second count of the amended information, and the court instead is directed to enter an order granting the motion.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, GRAY, LEAPHART and TRIEWEILER concur.
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] |
JUSTICE REGNIER
delivered the opinion of the Court.
¶1 Patrick Lancione was charged by information on June 7, 1996, with the offense of criminal endangerment, a felony, in violation of § 45-5-207, MCA. Lancione was tried by a jury in the Eighteenth Judicial District Court, Gallatin County, and found guilty. Lancione appeals from the sentence and the judgment of the District Court. We affirm.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court abuse its discretion in admitting evidence of Lancione’s behavior immediately prior to the crime?
¶4 2. Is § 45-5-207, MCA, defining the offense of criminal endangerment, unconstitutionally vague on its face or as applied to Lancione?
¶5 3. Did the District Court err in instructing the jury on the mental state necessary to prove criminal endangerment?
¶6 4. Was sufficient evidence presented at trial to convict Lancione of criminal endangerment?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 Patrick Lancione was a licensed real estate agent for Yogi Khalsa Realty Company, located in Bozeman, Montana. The company was owned by Yogi Khalsa, a licensed broker. Their business relationship, which began in 1993, had deteriorated by September 1995. On September 5, 1995, Khalsa asked Lancione to find another broker to work for.
¶8 On June 7, 1996, Khalsa walked into Lancione’s office and requested certain documents. This request lead to an argument about the sharing of a commission from the sale of a real estate listing. Khalsa testified that Lancione grabbed him, threw him against a wall, and shoved him out the door. Khalsa left Lancione’s office and returned to his office. He then decided to leave the building. He walked out into the hallway to leave and was blocked by Lancione.
¶9 According to Khalsa, Lancione closely followed him down the hallway and pursued him down five flights of stairs. At the last full flight of stairs, above a door to the lobby, Khalsa recalls Lancione saying, ‘You’ll never make it to the street.” The last thing Khalsa remembers is going through the door with Lancione right behind him. Khalsa regained consciousness lying on the floor in a pool of blood in front of the elevator about ten to twelve feet from the door.
¶10 According to Lancione’s testimony, as he exited the door at the bottom of the stairwell, Khalsa tried to reach back and slam the door on him. Lancione then accidentally tripped into Khalsa and they both tumbled down the stairs.
¶11 On September 26, 1995, Lancione was charged by information in the Eighteenth Judicial District Court, Gallatin County, with the felony offense of criminal endangerment pursuant to § 45-5-207, MCA. Lancione was tried by a jury on August 19-21,1996, and found guilty.
¶12 On September 12, 1996, Lancione moved for a new trial. He alleged that § 45-5-207, MCA, is unconstitutional on its face and as it is applied to him in this case. He further alleged that the District Court erred in allowing certain character evidence to be admitted and that the evidence was insufficient as a matter of law to sustain the verdict. On December 9, 1996, the District Court denied the motion for a new trial.
¶13 On December 12, 1996, the District Court deferred sentencing Lancione for a period of six years. As a condition for the six-year deferred sentence, the court ordered Lancione to serve ninety days in the Gallatin County Detention Center. Lancione was also ordered to pay restitution in the amount of $8,629.40. Lancione now appeals the sentence and the judgment of the District Court.
ISSUE 1
¶14 Did the District Court abuse its discretion in admitting evidence of Lancione’s behavior immediately prior to the crime?
¶15 At trial, the State offered the testimony of Colleen Kinnear regarding Lancione’s behavior when she saw him on the street less than fifteen minutes before Khalsa was injured. Kinnear, an acquaintance of Lancione, testified that she observed Lancione across the street on a corner walking toward her. She stated that Lancione was normally a neat and snappy dresser. However, on the day of the incident, she testified that:
[Lancione] was less well groomed, his hair was not particularly combed, looked like it needed a cut. [He] [h]ad on sloppy, baggy pants, unpressed white shirt, just different from his normal appearance on a work day.
¶16 She then testified that as they were crossing the street from opposite corners, “he walked very slow, sort of deliberately slow.” At the time, she testified that there was a delivery truck waiting to make a turn. When they met in the middle of the street, she testified that Lancione told her “Let’s walk real slow. Let’s piss the truck driver off.”
¶17 Lancione argues that the District Court abused its discretion by not excluding the testimony of Kinnear. At trial, Lancione objected to Kinnear’s testimony, arguing that the admission of her testimony was not relevant under Rule 401, M.R.Evid., that it was character evidence prohibited by Rule 404(a), M.R.Evid., and that it was prejudicial pursuant to Rule 403, M.R.Evid. In his motion for a new trial and on appeal, Lancione again argued that the District Court erred in admitting Kinnear’s testimony on the same three grounds. However, in his motion for a new trial, Lancione, for the first time, raised Rule 404(b), M.R.Evid., as a basis to reverse the District Court.
¶18 The State counters that the introduced evidence was not evidence of a trait of character. Instead, the State contends that it was evidence of a specific event showing Lancione’s res gestae, or hostile state of mind, fifteen minutes before Khalsa was found injured. Furthermore, the State contends that this Court should not consider Lancione’s argument based on Rule 404(b), M.R.Evid., because he failed to object to the admission of Kinnear’s testimony on this basis at trial.
¶19 In its order denying Lancione’s motion for a new trial, the District Court concluded that because the crime of criminal endangerment involves the defendant’s state of mind, the State was entitled to introduce this evidence concerning Lancione’s state of mind fifteen minutes before the crime was committed. Furthermore, the court stated that Kinnear’s testimony was brief, approximately ten minutes out of a three-day trial, and was not unduly prejudicial.
¶20 The standard of review for evidentiary rulings is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263.
¶21 We conclude that the admission of Kinnear’s testimony was an abuse of discretion by the District Court. Kinnear’s testimony does not directly relate to the incident between Lancione and Khalsa. Instead, the testimony is used to portray Lancione’s actions toward the truck driver as evidence of his intent to knowingly cause harm to Khalsa fifteen minutes later. We conclude that the testimony was not relevant under Rule 401, M.R.Evid., and was therefore inadmissible.
¶22 Although we conclude that the testimony was inadmissible, we must now determine whether that error was prejudicial, thereby requiring reversal of the conviction. Section 46-20-701, MCA, states, in relevant part, that “a cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.” When prejudice is alleged in a criminal case, the prejudice will not be presumed, rather, it must be established from the record that a substantial right was denied. State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. From the record, we must determine whether there is a reasonable possibility that the inadmissible evidence might have contributed to a conviction. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1109. In Bower, we noted that when assessing the potentially prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. If the issue involves inadmissible evidence, we will not evaluate the evidence in isolation because that would risk magnifying the error beyond the impact it had on the verdict. Bower, 254 Mont. at 6, 833 P.2d at 1109.
¶23 With these principles in mind, and after a thorough review of the transcript, we conclude that admitting Kinnear’s testimony did not constitute prejudicial error. At trial, the State’s evidence clearly demonstrated that the working relationship between Lancione and Khalsa had deteriorated to the point where Khalsa asked Lancione to leave. The evidence also showed that Khalsa’s request lead to the incident on the stairs with Lancione following Khalsa down the stairs and threatening him. Khalsa then ended up injured at the bottom of the stairs. The incident related by Kimiear on the street fifteen minutes before is entirely unrelated to the facts which gave rise to the criminal charge. We agree with the District Court’s conclusion that Kinnear’s testimony was not unduly prejudicial and was brief in relation to the other evidence that the State presented at trial.
¶24 Without reaching the merits of the State’s res gestae argument, we conclude that even though the District Court abused its discretion by allowing the admission of Kinnear’s testimony, under the totality of the circumstances, it was not prejudicial error.
ISSUE 2
¶25 Is § 45-5-207, MCA, defining the offense of criminal endangerment, void because of vagueness on its face or as applied to Lancione?
¶26 Lancione argues that § 45-5-207, MCA, is unconstitutional for vagueness, both on its face and as applied to him. He suggests that this Court should reexamine its opinion in State v. Crisp (1991), 249 Mont. 199, 814 P.2d 981, because the criminal endangerment statute is so broad that it is susceptible to arbitrary and discriminatory enforcement.
¶27 In Crisp, the defendant argued that § 45-5-207, MCA, was vague on its face because it does not require a specific intent to cause the risk and that the phrase “substantial risk of death” was not defined by statute. This Court upheld the statute as constitutional for two reasons. First, a plain reading of the statute establishes that the State must prove that a defendant acted knowingly. Crisp, 249 Mont. at 203, 814 P.2d at 983. Second, the fact that the statute does not define the phrase “substantial risk of death” does not render the statute facially vague because the term warns a person of ordinary intelligence that if he engages in conduct that could result in a real possibility of loss or injury he could be found guilty of the crime of criminal endangerment. Crisp, 249 Mont. at 204, 814 P.2d at 984.
¶28 To raise a constitutional challenge to a statute for vagueness, Lancione must have standing. When a challenge to a statute based on vagueness is raised, this Court must first determine whether the enactment reaches any constitutionally protected conduct. State v. Lilburn (1994), 265 Mont. 258, 270, 875 P.2d 1036, 1044. Next, “if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness.” Lilburn, 265 Mont. at 270, 875 P.2d at 1044 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 494-95, 102 S. Ct. 1186, 1190-91, 71 L. Ed. 2d 362, 369). “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy (1974), 417 U.S. 733, 756, 94 S. Ct. 2547, 2562, 41 L. Ed. 2d 439, 458.
¶29 We first conclude that the conduct proscribed by the statute does not interfere with any constitutional rights of a person or any conduct that is constitutionally protected. The purpose of the statute is to punish behavior by one person that “creates a substantial risk of death or serious bodily injury to another.” Section 45-5-207, MCA.
¶30 Next, we conclude that § 45-5-207, MCA, clearly applies to Lancione’s conduct. In this case, the jury determined that Lancione knowingly caused serious injury to Khalsa. The evidence that was presented was consistent with the State’s theory that Lancione either pushed or threw Khasla from behind, causing him to fall down the stairs. On that basis, we conclude that Lancione does not have standing to bring a facial vaguesness or an as applied challenge to § 45-5-207, MCA.
¶31 Therefore, we hold that Lancione does not have standing to challenge § 45-5-207, MCA, for vagueness on its face or as it applies to him in this case.
ISSUE 3
¶32 Did the District Court properly deny Lancione’s motion for a directed verdict?
¶33 At the close of evidence, Lancione moved for a directed verdict based on the grounds that the State failed to prove that he knowingly subjected Khalsa to a risk of death or serious bodily injury. The District Court denied the motion.
¶34 A district court’s decision to grant or deny a motion for a directed verdict lies within its sound discretion and will not be overturned absent an abuse of that discretion. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307. “We review a trial court’s denial of a motion for a directed verdict to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Romannose, 281 Mont. at 88, 931 P.2d at 1307.
¶35 Lancione argues that the State failed to prove that Lancione caused Khalsa’s injuries. Lancione contends that there was insufficient evidence offered to prove that he knowingly subjected Khalsa to a risk of death or serious bodily injury and, therefore, the District Court should have granted his motion for a directed verdict. The State responds that it presented sufficient evidence to withstand Lancione’s motion for a directed verdict.
¶36 Lancione’s main contention is that Khalsa admitted that he never saw, heard, or felt Lancione push him. Lancione asserts that Khalsa merely concludes that Lancione caused his injury because he was simply behind him. Therefore, the jury was left to speculate as to how Khalsa’s injuries occurred.
¶37 As the State points out, circumstantial evidence alone is sufficient to obtain a conviction. State v. Buckingham (1989), 240 Mont. 252, 260, 783 P.2d 1331, 1337. Circumstantial evidence must only be of such a “quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt,” and all the facts and circumstances must be considered collectively. State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23.
¶38 The record shows that Khalsa testified that Lancione threatened him and told him he would not make it to the street. He also testified that as Lancione was closely following him down the stairs and that, although he does not remember any body contact between him and Lancione, he could not have landed at the bottom of the stairs if he had merely tripped. The evidence also showed that Khalsa was found in a pool of blood at the foot of the stairs, having traveled a distance farther than that resulting from a mere misstep. In fact, Lancione, himself, testified that there was physical contact between him and Khalsa on the stairway. Also, another witness testified to the confrontation in the hallway between Khalsa and Lancione just before Khalsa was injured. Furthermore, the court allowed the jury to view the scene of the incident and draw its own conclusions from the testimony offered.
¶39 We conclude that the State presented sufficient evidence to support the conviction. The circumstantial evidence was such that a jury could infer that Lancione caused Khalsa to fall down the stairs. Thus, we conclude that the District Court did not abuse its discretion in denying Lancione’s motion for directed verdict.
ISSUE 4
¶40 Did the District Court err in instructing the jury on the mental state of knowingly?
¶41 Lancione contends that the District Court erred in instructing the jury on the mental state of knowingly based on this Court’s decision in State v. Lambert (1996), 280 Mont. 231, 929 P.2d 846. In this case, the definition given by the court was that “a person acts knowingly when he is aware of the circumstances that his conduct constitutes a crime.” The definition of knowingly as established by this Court in Lambert provides that
the ‘knowingly’ element of criminal endangerment contemplates a defendant’s awareness of the high probability that the conduct in which he is engaging, whatever that conduct may be, will cause a substantial risk of death or serious bodily injury to another.
Lambert, 280 Mont. at 237, 929 P.2d at 850.
¶42 However, this Court notes that Lancione failed to object to any of the jury instructions during settlement of instructions before the case was turned over to the jury. Furthermore, Lancione did not raise an argument regarding the jury instructions in his motion for a new trial or other relief with the District Court.
¶43 Upon review of Lancione’s memorandum in support of his motion for a new trial or other alternative relief and the transcript of the District Court hearing held April 21, 1996, we conclude that Lancione did not raise any objections to the jury instructions. Therefore, because this argument is raised for the first time on appeal, we will not address it. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100.
¶44 Affirmed.
JUSTICES HUNT, NELSON, TRIEWEILER and LEAPHART concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Doris A. Scott (Doris) appeals from the decision of the Second Judicial District Court, Silver Bow County, granting James L. Hen-rich, David J. Flamand, Butte-Silver Bow Law Enforcement Agency, City of Butte and County of Silver Bow’s (collectively Respondents’) motion for summary judgment. Doris asserts that Respondents acted negligently during a police confrontation which occurred in 1984 and resulted in the shooting death of Doris’ husband, John William Scott (John). The District Court determined that the officers acted reasonably as a matter of law, were not negligent and thus were not hable for damages as a result of John’s death. As a result, the District Court found that there were no genuine issues of material fact and that the Respondents were entitled to summary judgment as a matter of law. We reverse and remand.
Factual and Procedural Background
¶2 The events giving rise to this action were recently reviewed by this Court in Scott v. Henrich (1997), 283 Mont. 97, 938 P.2d 1363. We review and expand the facts for purposes of this appeal.
¶3 In August 1984, John was landlord of an apartment building on the corner of Clark and Park Streets in Butte, Montana. He and Doris lived in apartment number one and rented one of the other apartments to Patrick Sullivan (Sullivan). Sullivan later obtained a roommate, Dean Maestas (Maestas). The record indicates that Sullivan and Maestas were disruptive tenants and were suspected of burglarizing the apartment of another tenant. As a result, John had served Sullivan and Maestas with an eviction notice.
¶4 On August 4, 1984, Sullivan and Maestas were in the process of moving to a new apartment. At 12:57 on that day, John called law enforcement complaining of a disturbance caused by Sullivan and Maestas at their apartment on the corner of Park and Clark. Officers Hanninen and Miller responded to the call, confirmed the disturbance and warned Sullivan and Maestas against causing further trouble. At 3:25 p.m., John again summoned law enforcement with reports of a disturbance. Officers Driscoll and Henrich arrived at the scene, but were informed by John that he had transported Sullivan away from the scene and that everything was fine.
¶5 Later that day, approximately 8:20 p.m., law enforcement received a report that someone had fired a gun at 623 South Colorado Street. Officers Henrich, Flamand, Maylevac and Cassidy responded to the call. Henrich and Flamand were the first to arrive at the location, which turned out to be Maestas’ new apartment. Maestas indicated that someone had shot at him. The officers observed a bullet hole in the porch and retrieved an expended 30/30 cartridge. When the officers inquired as to who had shot at Maestas, Maestas said he did not know the individual’s name, but produced the eviction notice he and Sullivan had received from John.
¶6 Within minutes of the officers responding to the call at Maestas’ apartment, the officers received a second report of a man firing a gun at 701 West Park Street. The officers abandoned their investigation at Maestas’ apartment and quickly responded to this second report. Officer Flamand was the first to arrive at West Park Street. He quickly questioned the manager of the City Center Motel about the alleged shooting. The manager motioned that the individual went toward an apartment building across the street. A bystander then informed Officer Flamand that the person firing the rifle was acting strangely, staggering, and had entered one of the two doors of the apartment complex. The coroner’s report later indicated that John had a .26 blood alcohol concentration, well beyond the legal limit for a presumption of intoxication.
¶7 As the officers appeared on the scene, Officer Henrich approached and banged on one of the apartment doors and shouted “open up, police.” Henrich testified that he then heard someone fumbling with the locks. As the door opened, John appeared on the other side allegedly armed with a weapon. Meanwhile, Flamand had retrieved a weapon from his patrol car and stationed himself outside the apartment to cover Henrich. Although the entire confrontation lasted only seconds, Flamand recalls that John’s weapon was pointed down when he opened the door, but that John raised the barrel of the weapon and pointed it toward the officers.
¶8 Officer Henrich shouted “drop the gun,” or “he’s got a gun,” then fired a shot into the doorway. Henrich’s shot missed John. Officer Flamand, however, mistakenly believing that John had fired the shot, shot four rounds, one of which hit and killed John.
¶9 Doris brought action in United States District Court (U.S. District Court) seeking redress under 42 U.S.C. § 1983 and alleging state law negligence claims of wrongful death and survivorship. The U.S. District Court granted summary judgment in favor of Respondents on the § 1983 action determining that the officers’ actions were objectively reasonable and refused to exercise jurisdiction over the state law claims. As a result, Doris refiled her state law claims in the Second Judicial District Court, Silver Bow County (District Court), and concurrently appealed the decision of the U.S. District Court to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the decision of the U.S. District Court, and the United States Supreme Court subsequently denied certiorari.
¶10 Having exhausted her federal appeals, Doris proceeded with her state law claims in the District Court. The District Court initially determined that the state law claims were barred by res judicata and entered summary judgment in favor of the Respondents. Doris appealed the summary judgment ruling to this Court. In Scott, this Court was presented with the issue of whether the District Court properly entered summary judgment in favor of the Respondents on the basis of res judicata. We explained that summary judgment based on res judicata was not proper because the U.S. District Court ruled that the conduct of the officers did not rise to the level of gross negligence as required by 42 U.S.C. § 1983, and that in her state court action Doris was only required to show that the officers’ conduct fell below that of a reasonable and prudent person under the circumstances in accordance with traditional negligence standards in Montana. Thus, we determined that the District Court improperly relied on the opinions of the U.S. District Court and the Ninth Circuit that the officers acted reasonably. This Court remanded the matter to the District Court for further consideration.
¶11 On remand, the Respondents again moved for summary judgment asserting that there were no genuine issues of material fact. The District Court determined that the dispositive issue was whether the manner in which the officers approached the door and their conduct at the time of the shooting were reasonable. The District Court determined that expert testimony presented by Doris, which indicated that the officers’ conduct was unreasonable, was speculative and that she failed to produce competent evidence to overcome the Respondents’ motion for summary judgment. The District Court concluded as a matter of law that Officers Henrich and Flamand reasonably feared the imminent use of deadly physical force and were therefore justified in responding with deadly force. As a result, the court entered summary judgment in favor of the Respondents. Doris appeals to this Court asserting that summary judgment was improper. Doris presents one issue on appeal: Did the District Court err in granting summary judgment in favor of the Respondents on the grounds that the officers acted reasonably as a matter of law?
Discussion
¶12 Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court reviews a district court’s ruling granting summary judgment de novo, using the same legal standards as the district court. Smith v. Kerns (1997), 281 Mont. 114, 116, 931 P.2d 717, 718.
¶13 Upon a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Bowen v. McDonald (1996), 276 Mont. 193, 199, 915 P.2d 201, 205. In addition, all reasonable inferences must be drawn in favor of the party opposing the summary judgment. Porter v. Galarneau (1996), 275 Mont. 174, 179, 911 P.2d 1143, 1146. Finally, this Court has held that issues of negligence are generally not susceptible to summary judgment and are properly left for a jury determination at trial. Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869.
¶14 Doris asserts that there are several genuine issues of material fact which should preclude summary judgment in this matter. Doris’ claims are grounded in the expert testimony of Dennis Payne (Payne), an expert in police practices and procedures who holds a masters of science degree in criminology and is a 25-year veteran of the Michigan Department of State Police. Payne opines that the officers’ role in the events leading up to the shooting death of John was unreasonable. Payne is of the opinion that the officers should have treated John as a “barricaded suspect.” The Butte-Silver Bow Law Enforcement Agency Manual of Policies and Procedures stresses that “[a] barricaded suspect poses an extreme danger to officers who try to arrest him .... Officers should not immediately flush a barricaded suspect. Rather, they should develop and proceed with a tactical plan.... All efforts should be made to persuade the suspect to surrender before force is used.” Payne indicates that the officers failed to follow procedures required by their own law enforcement agency. Payne further suggests that the officers could have followed any number of tactical procedures. In his opinion, their complete disregard for their own policies and procedures in favor of an “assault” on the doorway and the suspect was simply unreasonable.
¶15 In addition, Payne testified that John was likely a frightened and intoxicated landlord who felt threated by troublesome tenants and probably would have welcomed the officers’ assistance. Payne asserts that, had the officers taken appropriate action, John’s death could have been avoided. Doris maintains that Payne’s testimony alone raises a factual issue which is sufficient to defeat summary judgment.
¶16 In addition, Doris points to several other factual issues which she asserts raise doubts regarding the veracity of the officers’ testimony in this case. Both Officer Henrich and Officer Flamand claim that when John opened the door of the apartment he was holding a gun and that the gun was pointed down. The officers further contend that during the split second confrontation in which Henrich shouted “he’s got a gun” or “drop the gun,” John raised the barrel and pointed the gun at the officers. However, Doris asserts that since John was the only other witness and his testimony is not available, the officers’ testimony is self serving. Additionally, Doris presents circumstantial evidence which she believes would support the possibility of a different finding by a jury.
¶17 For example, immediately following the confrontation, Officer Cassidy investigated the scene. Officer Cassidy’s report, written shortly after the shooting, indicated that the weapon found near John’s body was the type of gun that breaks down or is hinged in the middle for loading. Officer Cassidy’s report indicates that he believed that the gun (allegedly pointed at the officers) was open as if ready to be loaded or unloaded. Doris asserts that if the gun was broken down, there would be no way for John to point the gun at the officers. Two months after his initial report, however, Officer Cassidy retracted that portion of his written statement which indicated that the gun was open. In addition, Doris maintains that the State Crime Lab, which performed testing on John’s weapon, was unable to confirm any fingerprints on the gun which the officers alleged John pointed at them. Finally, evidence also shows that the gun allegedly held by John was not loaded during or after the confrontation. Doris asserts that it is unlikely John would have aimed an unloaded weapon at police officers who had weapons pointed at him.
¶18 Doris further asserts that, although the officers testified that they shot John in the chest because he had a weapon pointed at them and the initial autopsy performed by County Coroner Robert Krause, M.D. indicated that the fatal shot hit John in the chest, Dr. Krause, upon further investigation, amended his conclusions indicating that the fatal shot hit John in the back. Doris claims that if the confrontation occurred in “milliseconds” as the officers indicated, there would have been no time for John to turn around and be in a position to be shot in the back. Doris maintains that if she presented a jury with Payne’s expert testimony that the officers acted unreasonably and the circumstantial evidence which calls into question the veracity of the officers’ testimony, the jury could find the Respondents negligent for the wrongful death of John. As a result, Doris asserts that the District Court improperly granted summary judgment.
¶19 Respondents assert that the rationale used by the Louisiana Supreme Court in, Mathieu v. Imperial Toy Corp. (La. 1994), 646 So.2d 318, should be employed in this case. In Mathieu, the New Orleans Police Department was notified that a suspicious person with a gun was seen near a nursing home. Officers responded to the complaint, but could not find the individual. Shortly thereafter, the officers received another report of an individual with a gun in the same area peering into the nursing home windows. When the officers arrived on the scene, they were informed that the individual was lying in the grass, possibly asleep. The officers decided to approach the individual and attempt to disarm him. When the officers were within 4 to 6 feet of the individual, he raised his head and pointed the gun at the officers. The officers fired on the individual and eventually shot him. When they disarmed the individual, they discovered that the gun was a plastic toy and later learned that the individual was a delusional, paranoid schizophrenic who had stopped taking his medication and was detached from reality.
¶20 Mathieu sued the City of New Orleans, the officers, and the toy company for negligence. Mathieu presented expert testimony that indicated that alternative methods existed for confronting and disarming the suspect which may have avoided any need for using deadly force. The trial court found that the manner in which the officers approached Mathieu was negligent and the legal cause of his injuries and thus awarded damages. The appellate level court agreed, determining that the method employed by the officers left no alternative but to use deadly force if Mathieu made any movement. However, the Louisiana Supreme Court reversed. Using a seven-factor test to determine whether the officers were negligent, the court concluded that the conduct of the officers was reasonable under the circumstances and that the officers were not required to choose the “best” possible alternative for approaching the suspect, only a reasonable alternative. Mathieu, 646 So.2d at 325.
¶21 Respondents assert that Mathieu is controlling because, like the officers in Mathieu, Officers Henrich and Flamand were not required to use the best method of confronting John. However, we determine that Mathieu is not controlling in this case because Doris is not asserting that the officers were required to use the best method. Rather, Doris has presented expert testimony from Payne that the method employed by the officers was simply not reasonable under the circumstances.
¶22 When presented with Payne’s expert testimony and the circumstantial evidence regarding the officers’ veracity, reasonable jurors could differ as to whether the officers acted reasonably on the day of the shooting, thus genuine issues of material fact remain that preclude summary judgment. We hold that the District Court improperly entered summary judgment in favor of the Respondents on the grounds that the officers acted reasonably as a matter of law. Reversed and remanded.
JUSTICES REGNIER, NELSON, HUNT and GRAY concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
Plaintiff brought this action to recover damages for the alienation of her husband’s affections and prevailed in the lower court. Defendant appealed from the judgment and from an order denying a new trial. The only contention made in this court is that the evidence is insufficient to support the verdict.
Plaintiff and her husband, Dr. Moelleur, lived together in the town of Melrose, where defendant, then Mrs. Mary Reynolds, a widow, also resided. Prior to Christmas, 1914, plaintiff and her husband had frequently engaged in family quarrels, but, according to plaintiff, had at the date mentioned become reconciled and were living happily. About that time Dr. Moelleur began paying attention to Mrs. Reynolds, and about the same time began to display marked indifference to his wife, and this indifference increased until finally he refused to recognize her on the street or speak to her in their own home. On March 27, 1915, plaintiff secured a divorce from her husband, and on June 1 following, Dr. Moelleur and Mrs. Reynolds were married. Appellant concedes that Dr. Moelleur’s affections were alienated, but contends that the evidence discloses that plaintiff’s own acts and conduct were responsible for it, and that defendant was not an active or procuring agency in the estrangement.
1. The rules of law governing an action of this character are well settled.
(a) This action cannot be maintained if it appears that Dr. Moelleur voluntarily bestowed his affections on Mrs. Reynolds, the latter doing nothing wrongful to win them. (Claxton v. Pool, 182 Mo. App. 13, 167 S. W. 623; Scott v. O’Brien, 129 Ky. 1, 130 Am. St. Rep. 419, 16 L. R. A. (n. s.) 742, 110 S. W. 260; 13 R. C. L. 1464.)
(b) Even though plaintiff’s conduct toward her husband was a subsidiary cause of alienation, she is not barred from recovery; but the fact of their domestic trouble might be considered by the jury in mitigation of damages. (Morris v. Warwick, 42 Wash. 480, 7 Ann. Cas. 687, and note 689, 85 Pac. 42; Baird v. Carle, 157 Wis. 565, 147 N. W. 834; Hadley v. Heywood, 121 Mass. 236.)
(c) Even though there had been estrangement between [4] plaintiff and her husband, so long as they remained husband and wife, plaintiff had the right to rely upon the possibility of reconciliation, and defendant had no right to intermeddle, and, if she did so, she must answer for the consequences. (Rott v. Goehring, 33 N. D. 413, Ann. Cas. 1918A, 643, and note 647, L. R. A. 1916E, 1086, 157 N. W. 294; Miller v. Pearce, 86 Vt. 322, 43 L. R. A. (n. s.) 332, 85 Atl. 620; 13 R. C. L. 1465.)
The jury was authorized to believe the evidence offered on behalf of plaintiff and refuse to accept defendant’s theory of the case. In this view we assume that plaintiff’s version was accepted, and if the evidence offered in her behalf, with the legitimate inference to be drawn from it, will justify a verdict in her favor, we are not at liberty to interfere.
In a case of this character the evidence must of necessity be largely circumstantial. No other person than Dr. Moelleur can state positively that the actions of defendant did or did not prejudicially influence his conduct toward his wife; but if the jury believed, as they might, that prior to Dr. Moelleur’s association with defendant he and plaintiff were living together as husband and wife, that the defendant, intending to entice Dr. Moelleur from his marital relations and duties, employed means reasonably calculated to effect her purpose, and Dr. Moelleur’s affections were alienated from his wife, and that soon after the divorce Dr. Moelleur and defendant were married, then a finding that defendant was the active, procuring cause of the estrangement is a legitimate inference to be drawn from the evidence.
On behalf of the plaintiff the testimony tended to show that between Christmas, 1914, and March, 1915, Dr. Moelleur had brought Mrs. Reynolds from Butte in his automobile, arriving at Melrose after midnight; that on another occasion he took her in his machine to Dewey Flat and had dinner with her; that Mrs. Reynolds expressed her great pleasure in Dr. Moelleur’s company, her desire to ride with him, and her admiration for him; and that when they returned from Dewey Flat she asked Dr. Moelleur when they were going to take another ride, to which he responded, “Almost any time,” and she replied that she would be ready; that defendant stated that Dr. Moelleur was such a lovely man to be with, such good company, that she enjoyed his company so much, and that she would like to have him; that Dr. Moelleur and Mrs. Reynolds met frequently at the house of Dr. Moelleur’s sister, and that, on the morning the papers announced that plaintiff had instituted divorce proceedings, defendant in a conversation with a neighbor said: “Did you folks see in the paper what I have done?” These facts furnish sufficient justification for the jury’s finding that defendant was a procuring cause of the estrangement between plaintiff and her husband and that she intended the consequences which actually followed. (Dodge v. Rush, 28 App. D. C. 149, 8 Ann. Cas. 671.)
The evidence is in sharp conflict. If that offered by [6] defendant had been accepted as true, a different result must have been reached; but the jurors were the judges of the credibility of the witnesses, and, since there is not anything to indicate that plaintiff’s evidence is so inherently improbable that it cannot be true, we are bound by the verdict.
2. The verdict awarded $2,400 compensatory damages and $100 punitive damages. The 'trial court required plaintiff to remit $1,000 of the total amount as a condition to the order overruling the motion for a new trial. It is insisted that the evidence does not authorize any award of punitive damages even though it may sustain the verdict for compensatory damages. Section 6047, Revised Codes, provides: “In any action for a breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant.” If we assume that any part of the award of exemplary damages attaches to the judgment at present, we are nevertheless unable to agree with counsel for appellant that the evidence furnishes no basis for a finding of malice.
In Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397, it is said: “The term ‘malice,’ as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. * * * If the conduct of the defendant was unjustifiable and actually caused the injury complained of by plaintiff, which was a question for the jury, malice in law would be implied from such conduct.” This is the rule recognized and enforced by the courts generally (Boland v. Stanley, 88 Ark. 562, 129 Am. St. Rep. 114, 115 S. W. 163; Sickler y. Mannix, 68 Neb. 21, 93 N. W. 1018; 3 Words and Phrases, 2d ed., 224), and under it the question of the existence of malice was properly submitted to the jury.
We find no error in the record. The judgment and order are affirmed.
1Affirmed.
Me. Chief Justice Brantly and Mr. Justice Sanner concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This suit was brought to secure the rescission of a contract for the purchase of certain shares of stock of the State Life Insurance Company of Great Falls; to secure the cancellation of three promissory notes representing the purchase price, and, by way of ancillary relief, to secure an injunction restraining the defendant from transferring the notes pending the litigation. After a hearing upon the return of an order to show cause, an injunction pendente lite was issued and defendant appealed from the order. Three principal questions are presented:
1. It is urged that the complaint does not state a cause of action because (a) it does not allege that plaintiff has suffered pecuniary loss, and (b) .it does not disclose that the alleged misrepresentations concerned material facts.
(a) Is it essential to the statement of a cause of action for rescission of a contract for fraud that the plaintiff allege that he has suffered pecuniary loss ? Authorities may be found which answer in the affirmative and most emphatically, but curiously enough do not insist that the, amount of such loss is material, if it is at all appreciable. In 2 Pomeroy’s Equity Jurisprudence, section 898, it is'said: “Fraud without resulting pecuniary loss is not a ground for the exercise of remedial jurisdiction, equitable or legal. * * * If any pecuniary loss is shown to have resulted, the court will not inquire into the extent of the injury; it is sufficient if the party misled has been very slightly" prejudiced, if the amount is at all appreciable.” We do not feel called upon to follow this text.
It is axiomatic in the law that, if it is necessary to allege a particular fact, it is equally necessary to prove" it, if the allegation is put in issue. It certainly could not be said that it would be sufficient for plaintiff to allege that as a result of the fraud he suffered damage “in an appreciable amount” or suffered “material damage” or “substantial damage.” Any one of these allegations would render the pleading subject to demurrer under section 6534 of our Codes. If it is necessary to allege pecuniary loss, it is necessary to allege the amount of such loss; but section 6532, Revised Codes, provides, “if the recovery of money or damages be demanded, the amount must be stated,” and this provision is exclusive. “Expressio unius est exclusio alterim.’’ This is not an action for the recovery of money or damages, and therefore it is not necessary to allege that plaintiff suffered pecuniary loss.
Courts of equity, like courts of law, however, do not concern themselves with wrongs which do not produce injury; but “injury” and “pecuniary loss” are not synonymous terms. In Shoudy v. Reeser, 48 Mont. 579, 142 Pac. 205, this court stated the rule that, to make out a case of actual fraud, it is necessary for plaintiff to allege: (1) That defendant made representations with the intent that they should be relied upon; (2) that they were false; (3) that they were accepted as true and plaintiff was induced to act upon them; and (4) that by reason of the fraud plaintiff suffered damage. These are the elements recognized by the authorities generally. Most of the courts and text-writers employ the term “damage” in the sense of injury; a few restrict its meaning to financial loss. We prefer to adhere to the rule which gives to the term its broader significance, as including either pecuniary loss or the alteration of one’s position to his prejudice. Fraud may result in injury which cannot be measured in dollars and cents. Indeed, if the rule for which appellant contends be accepted, then insolvency of the defendant alone determines the jurisdictional question, for it is inconceivable that any injury which can be measured by a money standard cannot be redressed by an action at law if the guilty party is financially responsible. But insolvency is not the sole determining factor in suits of this character, and upon this the authorities are generally agreed.
If the allegations of this complaint are true, plaintiff was [2] induced by fraudulent representations to assume obligations which otherwise he would not have assumed and to purchase property which otherwise he would not have purchased. We deem the allegations sufficient to disclose damage within the meaning of that term which we adopt.
(b) It is elementary that, to constitute actionable fraud, the representations must relate to material facts, and this upon the theory that “the law disregards trifles.” (See. 6201, Rev. Codes.) It is alleged that in August, 1916, defendant and H. L. Moore, knowing that plaintiff was a stockholder in the State Life Insurance Company of Great Falls, and representing that defendant was “the head man” of the company, stated to plaintiff that 100 shares of the stock had been turned back to the company by a subscriber who was unable to pay for it, and solicited plaintiff to purchase the stock “to help the said company out, ’ ’ knowing that plaintiff understood that he was asked to purchase -treasury stock; that these representations were false and known by defendant to be false; that they were made with the purpose of defrauding plaintiff; that they were relied upon by him; that in reliance thereon he agreed to purchase the stock (which otherwise he would not have purchased) and gave the notes in controversy. Do these representations refer to material facts within the meaning of section 4978, Revised Codes, defining fraud? There is no hard-and-fast rule for determining this question. Every case must be decided upon its own peculiar facts and circumstances. It is conceivable that a stranger to the company who had ready money seeking investment‘would decline to purchase its stock even though it might appear to be a profitable venture. . It is likewise conceivable that a stockholder in the company, seeking further investments, would refuse to purchase more stock in the same company, even though he knew it was prosperous and gave promise of liberal returns in dividends. He might reasonably prefer to distribute his investments. We think it equally consonant with reason and business experience that a stockholder might assume bur densome obligations to parchase treasury stock of his company in order to increase its working capital, promote its opportunities for extended operations, stabilize the value of his own outstanding stock, or enhance the chances of better returns by way of increased dividends, when he would be altogether unwilling to purchase privately owned stock at the same price. He might be willing to relieve his company of embarrassment or himself of the possibility of loss upon the stock already owned, but unwilling to relieve a stranger from the embarrassment consequent upon his having contracted for stock in the same company., In any event, a man is entitled to receive the property he contracts to purchase and cannot be required to accept in lieu thereof something else, even though it has equal value. (Newhall v. Enterprise Min. Co., 205 Mass. 585, 137 Am. St. Rep. 461, 91 N. E. 905.) We think these representations concern material facts and that, if made and if the other elements of fraud are present, they furnish sufficient basis for rescission. (1 Cook on Stock and Stockholders, 7th ed., sec. 145; Ogden Valley T. & R. Co. v. Lewis, 41 Utah, 183, 125 Pac. 687.)
2. Appellant contends that every material allegation of the complaint was put in issue by defendant’s testimony, and therefore an injunction should not have been granted. In support of his position, he invokes the rule announced in 22 Cyc. 945, 946, and recognized by this court in Rea Bros. Sheep Co. v. Rudi, 46 Mont. 149, 127 Pac. 85, to the effect that if, in response to an order to show cause, the defendant puts in issue all the material allegations of the complaint and plaintiff fails to offer evidence in support, the court will generally deny the injunction. But that rule is not an absolute one. The same authority proceeds: “But notwithstanding positive dénials under oath in the answer, the court has discretion to grant a preliminary injunction and it will not be denied as of course.”
The complaint in this instance was verified positively and not upon information and belief. It was offered in evidence upon the hearing and had the effect of an affidavit. (22 Cyc. 941.) In so far as the evidence tendered by defendant contradicted the allegations of the complaint, it raised an issue as to the credibility of the plaintiff on the one hand and defendant on the other; for the only evidence produced by defendant material to this inquiry was furnished by his own testimony. He introduced the testimony of Jas. B. Walsh, F. E. Beatty, and himself. The testimony of Walsh and Beatty tended to show that Walsh had subscribed for 100 shares of the capital stock of this company at $15 per share, had given his notes to represent the purchase price, and had not paid the notes nor the interest on them-; that all the capital stock of the company had been sold in 1913, and none of it had ever been turned back to the company; that defendant, acting in the capacity of a broker, was seeking to resell Walsh’s stock for commission in amount equal to the difference between what Walsh owed the company (about $2,200) and whatever he could realize on a resale (in this instance $3,000); and that the company was not interested in the resale of this stock. The defendant testified that it was the Walsh stock which he intended to deliver to plaintiff and which he had in mind when the contract with plaintiff was executed. He denied that he represented that he was offering for sale treasury stock or solicited plaintiff to help out the company. We refrain from commenting upon the remainder of his testimony. The trial court occupied the more advantageous position, in that the witness was present in person, and his demeanor on the stand, his apparent candor or lack of it, and all the other elements which enter into the determination of his credibility, were open to scrutiny.
3. It is contended that, in any event, the court abused its discretion in granting the injunction; but with this we are unable to agree. Courts of equity are inclined to be liberal in restraining pendente lite the transfer of negotiable promissory notes alleged to have been procured by fraud, when such transfer will defeat the right of the makers to interpose their defense as against holders in due course. (2 High on Injunctions, sec. 1126; Bispham’s Principles of Equity, sec. 459; Os born v. United States, 9 Wheat. 738, 6 L. Ed. 204; 22 Cyc. 840.)
The order is affirmed.
Affirmed.
Mr. Cheep Justíce Brantly and Mr. Justice Sanner concur.
Motion for rehearing denied October 21, 1918.
|
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] |
MR. JUSTICE' HOLLOWAY
delivered the opinion of the court.
In March, 1908, Chas. W. Smith and H. H. Lang executed and delivered to the First State Bank of Kendall their promissory note for $1,900, and, as additional security for the loan, Smith delivered to the bank 1,000 shares of the capital stock of the North Moccasin Mining Company. Although the note was not due until January, 1909, as early as April, 1908 — the month following its execution — Lang importuned Smith to make payment on it, which Smith declined to do, and the like requests were repeated by Lang thereafter but unsuccessfully. On November 8, 1908, Smith executed and delivered to the bank a new note for $2,695, due in one year, in renewal of the Smith-Lang note and a balance due on another note of Smith’s, and the original nóte was stamped “Paid” and delivered to Smith. This renewal note was not signed' by Lang but the collateral which secured the two notes was left with the bank as the only security for the new note. On April 2, 1909, this renewal note was taken up and a third note for $3,612.87, signed by Smith and wife, was given in renewal of that note and for other advancements, and the second note was stamped “Paid” and delivered to Smith. In addition to the collateral which secured the second note, Smith and wife executed and delivered to the bank a mortgage upon some real property in Kendall. On March 12, 1912, suit was instituted to enforce collection of this third note, and thereafter judgment was recovered and execution issued, but nothing was collected.
From the organization of the bank until November, 1912, Henderson was cashier and Lang was president of the bank, and each of them was a director. Plaintiff is the successor of the First State Bank of Kendall. This action was commenced against Lang to enforce payment of the Smith-Lang note for $1,900 and accumulated interest. The defendant pleaded: (1) That he signed the note as accommodation for Smith, and that the bank extended the time of payment without his knowledge or consent; (2) that the bank was guilty of laches in prosecuting its claim against Smith; and (3)' that the note was fully paid and discharged. Upon the trial and at the close of the testimony the court directed a verdict for the plaintiff, and defendant has appealed from an order denying him a new trial. There is not any conflict in the evidence except as to matters to which reference will be made hereafter.
Lang was general manager of the North Moccasin Mining . Company, and owned considerable of its stock. The expenses of the company far exceeded its income, but notwithstanding this fact the stock had a market value of from $1.90 to $2 per share. Lang1 sold to Smith the 1,000 shares heretofore mentioned at $1.90 per share. The money with which to pay for the stock was borrowed from the bank and the Smith-Lang note executed and delivered, the money received and immediately passed to Lang’s credit, and the certificate of stock delivered to the bank as collateral. On November 1, 1908, the mining company defaulted in the payment of interest on its bonded indebtedness. In April, 1909, mining- operations ceased. In September, 1909, a suit to foreclose was brought and prosecuted to decree and sale, and the stock became worthless.
Prior to November, 1912, the board of directors of the bank in disregard of its by-laws held no meetings except to elect officers, made no examinations of the bank’s affairs, took no part in making or approving loans, but permitted Henderson to conduct the bank’s business. The directors, other than Henderson and Lang, knew nothing of the Smith-Lang loan or of the renewals. In November, 1912, at a meeting of the board at which neither Henderson nor Lang was present, certain of the bank’s loans, including the note for $3,612.87 signed by Smith and wife, were approved. In January, 1914, the board discovered that Lang had signed the original note for $1,900, and a demand was made upon him to pay it, and upon his refusal this action was brought.
1. Appellant contends that, having signed the Smith-Lang note as an accommodation party, he was liable only as a surety, and was discharged by the extension of time granted to Smith without his knowledge or consent. With this we do not agree. A surety is only liable secondarily. The note reads:
“Jan. 10th, 1909, after date we or either of us promise to pay to the order of First State Bank of Kendall, nineteen hundred and no-100 dollars for value received,” etc., and was signed,
“Chas. W. Smith,
“ H. H. Lang.”
Section 5844, Revised Codes, provides: “The person ‘primarily’ liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are ‘secondarily’ liable.” By virtue of this statute Lang was primarily liable, and his primary liability was not affected by the fact that he signed the note for the accommodation of Smith, and that this fact was known to the bank, a holder for value. Section 5877, Revised Codes, defines an accommodation party, and then proceeds: “Such a person is liable on the instrument to a holder for valué, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.” The foregoing statutory provisions are portions of the Uniform Negotiable Instruments Act. They have been construed frequently, and the consensus of opinion is stated in 3 R. C. L., p. 1276, as follows: “Under the negotiable instruments law it may be regarded as well settled that the accommodation maker or acceptor is primarily liable, and is not discharged by any extension of time given to the indorser, drawer, or comaker, for whose benefit he became a party to the instrument, without regard to whether the party suing on the instrument is a party thereto as a payee, and had knowledge of the relation subsisting between the accommodation maker and the principal debtor.”
2. A promissory note legally imports a promise to pay in money and nothing else. Unless there was an agreement between the bank and Smith that the renewal note of November 8, 1908, was given by Smith and accepted by the bank in payment and discharge of the debt represented by the Smith-Lang note, the effect of the renewal was merely to extend the time of payment, and did not discharge the obligation. (First Nat. Bank v. Cottonwood Land Co., 51 Mont. 544, 154 Pac. 582.) The fact that the cashier stamped “Paid” upon the old note, and delivered it to Smith, did not operate to change the rule. (Bridge v. Connecticut Mut. Life Ins. Co., 167 Cal. 774, 141 Pac. 375; Scott v. Gilkey, 153 Ill. 168, 39 N. E. 265; First Nat. Bank v. White, 60 N. J. Eq. 487, 46 Atl. 1092; Lowther v. Lowther-Kaufmann Oil & Coal Co., 75 W. Va. 171, 83 S. E. 49; 8 C. J. 572; 1 Michic on Banks and Banking, p. 739.)
3. If the evidence is open to the inference that it was the intention of the cashier to accept the renewal note in payment, and to discharge Lang, the inquiry arises, Had he any such authority 1
The cashier of a bank is its agent, and his conduct is governed by the general rule of agency. (1 Michie on Banks and Banking, p. 712.) It is elementary that, in the absence of special authority, an agent cannot accept payment in anything but money. (United States Nat. Bank v. Shupak, 54 Mont. 542, 172 Pac. 324.) An agent has such authority as the principal actually or ostensibly confers upon him. (Sec. 5430, Rev. Codes.) It is not contended that by virtue of his office the cashier had authority to release Lang; neither is it urged that he had received express authority from the board of directors to do so; but it is insisted that, by turning over to the cashier the entire management of the bank, the board impliedly conferred upon him this extraordinary power, and 1 Morse on Banks and Banking, par. 165, is cited as authority to support this contention. But counsel misconceive the import of the author’s language, for immediately following the rule it is said: “This doctrine is certainly a liberal one towards innocent outsiders.'” The same general rule is adverted to by Michie (1 Michie on Banks and Banking, p. 695), and concerning it that author says: “Nor is there any incongruity or departure from general principles in this, since it is merely the application of the very general principle that as regards third persons the officers and agents must be deemed clothed with whatever powers the bank has held them out as possessing in the same degree as if the authority had been expressly granted.” In other words, the rule embodies the general principle of ostensible authority, and those terms are defined in section 5432, Revised» Codes, as follows: “Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.”
If the directors in disregard of their duties permit the cashier to conduct the affairs of the bank for a period sufficiently long to establish a settled course of business, his authority to do anything which the board might have authorized him to do in the first instance will be implied in favor of an innocent third party, even though the bank is defrauded by his acts. (1 Michie on Banks and Banking, p. 714.) But the doctrine of ostensible authority cannot be extended in favor of one who is familiar with the facts and whose dereliction is relied upon to give color to the agent’s unauthorized acts. Neither does it aid appellant to say that, being interested, he could not have participated as a member of the board in passing upon the application of Smith for the renewal on November 8, 1908. An isolated act of the board did not give the cashier ostensible authority. If he possessed any such power he derived it from the long course of misconduct on the part of the board in which Lang participated.
In effect, appellant's position is this: For three years prior to November 8, 1908, the directors, including the cashier and myself, flagrantly disregarded the duties imposed upon us by law, and permitted the cashier to run the bank without let or hindrance. We held him out to the world as having authority to do anything and all things which the board of directors might have authorized him to do; and since the board might have authorized him to release security, it should be presumed from my misconduct and the misconduct of my associates that he had authority to release me from liability on the Smith-Lang note. Such a contention offends against every principle of law and morals. (Campbell, Receiver, v. Watson, 62 N. J. Eq. 396, 50 Atl. 120.) Neither the president, the cashier, nor both of them, could release a debtor of the bank from his liability, without authority from the board of directors (1 Michie on Banks and Banking, p. 706), and the president will not be heard to say that he was released of his liability, in the absence of clear and convincing proof that the board intended to clothe the cashier with that extraordinary power. Whenever it appears, that a director has been dealing with his corporation, the burden is at once upon him to show that his dealings have been fair and honest; in other words, that the corporation has not suffered as the result of his acts. (Hanson Sheep Co. v. Farmers’ etc. Bank, 53 Mont. 324, 163 Pac. 1151.)
If appellant should prevail in this instance, the result would be that the bank of which he was president and a director, would lose $1,900 and the interest thereon as the result of his transaction with it. Whatever ostensible authority the cashier had in dealing with strangers, he had only such authority in dealing with a director as was conferred upon him by virtue of his office or by express grant from the board.
4. But it is insisted that the board ratified the act of the cashier in releasing Lang: (a) By bringing an action to enforce collection of the renewal note; and (b) by approving the renewal loan.
The suit upon the renewal note was commenced on March 12, 1912,' while Henderson was still cashier and Lang was president. The action of the board in ratifying the Smith loan for $3,612.87 was taken in November, 1912. On neither date did any member of the board, other than Henderson and Lang, know that Lang had ever been liable for the payment of any portion of that debt. By the terms of section 5429, Revised Codes, it is essential, in order that the ratification of an unauthorized act of an agent be valid, that the principal have full knowledge of all material facts relative to the transaction, at the time of the ratification. (31 Cyc. 1253.) “While knowledge of the affairs of the bank by the directors will be presumed in favor of an innocent third party, no such presumption is indulged in favor of the president, who is himself a director. (3 R. C. L., p. 456.) In the absence of any evidence that the members of the board had knowledge of Lang’s liability, they cannot be held to have ratified the act of the cashier in attempting to release him. But aside from every other consideration, Lang cannot complain that the bank made an effort to collect this debt from Smith and thereby lessen his liability, and this is the legal effect of bringing the action upon the renewal note. (Goodyear D. V. Co. v. Caduc, 144 Mass. 85, 10 N. E. 483.)
5. There is no merit in the defense of laches. Appellant was primarily liable on the Smith-Lang note, and this action was commenced within the period of the statute of limitations. (Bank v. Shupak, above.)
6. Finally, it is contended that the trial court erred in directing a verdict for plaintiff because there were material issues of fact for determination by the jury, but with this we do not agree. "Whether Henderson had authority to release Lang was a question of law. The evidence touching his actual and ostensible powers is undisputed. Henderson testified that he took the renewal note without Lang’s signature, at Lang’s suggestion and request. This Lang denies, but, if Henderson had no authority to release him, it is immaterial upon whose suggestion he acted.
The determination that Lang, was primarily liable upon the Smith-Lang- note disposes of the other contentions urged by appellant.
The order is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. "Justice Sanner concur.
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] |
MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
In this cause plaintiffs recovered a judgment. The defendants have appealed from an order denying their motion for a new trial.
The circumstances out of which the action arose, gathered from the complaint, are, briefly stated, as follows: Prior to December 13, 1910, the Ryegate Coal Mining Company, hereafter referred to as the corporation, held a lease for a term of years from the state of Montana, of certain coal land situate in Meagher, now Musselshell, county. On that date it entered into a contract with the plaintiffs under the terms of which it agreed to assign to them the lease free from all encumbrances held upon the land by the state of Montana, by reason of debts due it from the corporation, and to sell them all personal property used in operating the mine. The price to be paid by the plaintiffs was $1,000. Of this sum, $804 was to be paid in cash and the balance, $196, by a credit to be given the corporation upon an account due from it to the plaintiff Gregg, evidenced by a receipt in the form of a receipted bill. The defendants were associated, with other persons not parties to this action, as copartners in conducting a banking business at Rye-gate under the firm name of the Bank of Ryegate. Upon the execution by the corporation of the assignment and bill of sale, it was orally agreed between it and the plaintiffs that the $804 in cash and the receipted bill should be deposited with the defendants, to be held “as an escrow in trust” for the parties to be turned over to tbe corporation whenever it had. within a reasonable time paid all the charges due the state and had furnished to the defendants, for the plaintiffs, satisfactory evidence that such charges had been paid and that the title to the leased premises was clear and unencumbered. The deposit was made as agreed, and the Bank of Ryegate accepted the deposit in trust, and as an escrow.
It is alleged that on or about January 13, 1911, the defendants, disregarding the conditions of the trust aiid without waiting until the corporation had furnished satisfactory evidence that its indebtedness to the state had been paid and a clear title to the premises furnished to the plaintiffs, and without the knowledge and consent of the plaintiffs, wrongfully and unlawfully applied the sum of $804 on an indebtedness due to the defendants from the corporation; that the defendants did not receive from the corporation an assignment of the lease with satisfactory evidence that the indebtedness had been paid; that the defendants knew that the indebtedness had not been paid; that no assignment of the lease with satisfactory evidence of the discharge of the indebtedness was ever furnished by the corporation to either the plaintiffs or the defendants; that on or about September 1, 1911, the plaintiffs having learned that the defendants had misapplied the sum of $804 contrary to the terms of the trust, demanded a return thereof together with the receipted bill, but that defendants refused and still refuse, to return the same. It is further alleged that at the time the deposit was made, the corporation was greatly indebted to the state for rents and royalties theretofore accrued, under the lease, but the amount of the indebtedness is not stated. Judgment is demanded for the sum of $1,000, with interest thereon from September 1, 1911.
In their answer, defendants admit that the plaintiffs purchased from the corporation the lease and all the right, title and interest of the corporation in the land referred to in the complaint. They deny all other material allegations therein contained. As an affirmative defense, they then allege, in sub stance, that plaintiffs, with full knowledge of all the facts and circumstances connected with the alleged trust agreement, accepted and received the assignment of the lease from the defendant Martin Johnson and forwarded the same to the register of state lands for the purpose of having it formally approved and accepted, and endeavored to procure a new bond running from the plaintiffs to the state of Montana, as is required by law in the event of an assignment of a lease of state land; that plaintiffs soon thereafter took possession of the leased premises, proceeded to operate the coal mines located thereon and extracted therefrom large quantities of coal; that they also took possession of all the appliances used by the corporation in mining coal, and have ever since kept them and appropriated them to their own use. They further allege that in order to raise the sum of $804 referred to in the complaint, plaintiffs gave their individual notes, payable to the Bank of Ryegate, plaintiff Gregg giving his note for $304, due July 1, 1911, and the plaintiff Glendenning giving his note for $500, due June 1, 19.11; that although at the- time the plaintiffs were fully advised of all the facts and circumstances concerning the acts of the defendants in connection with the said trust, they voluntarily paid their notes to the defendants; that on or'about the ninth day of April, 1912, the plaintiff Glendenning, acting for himself and the plaintiff Gregg, paid to the register of state lands the sum of $60 to apply upon the rent due under the terms of the lease; that on or about the twenty-third day of April, 1912, the plaintiffs brought an action in the district court of Mussel-shell county against the corporation and others, seeking to recover from the defendants therein damages for the alleged breach of that clause of the assignment of the lease whereby the corporation had warranted the lease to be clear and free from all encumbrances; that at the time of the happening of these events the plaintiffs were fully advised as to all of them, and that by reason thereof they were estopped to assert that the defendants violated the terms of the alleged trust agreement as set forth in the "complaint, and by their conduct ratified the pay ment of said money by tbe defendants. Upon this defense there was issue by reply.
The contentions made in this court are (1) that the complaint does not state a cause of action; (2) that the evidence is insufficient to justify the verdict; (3) that the court erred in refusing to submit to the jury certain instructions requested by the defendants; and (4) that it erred in refusing to grant a new trial on the ground of newly discovered evidence.
The questions presented by the first contention cannot be [1] considered or determined on this appeal. The appeal is from the order denying the defendants a new trial. At no time during the trial was the sufficiency of the pleading drawn in question by objections to the introduction of evidence or other appropriate method. Hence its sufficiency could not be considered by the trial court on a hearing of the motion, nor may it be considered by this court on appeal from the order disposing of it. It could be considered only on appeal from the judgment. (Campbell v. Great Falls, 27 Mont. 37, 69 Pac. 114; Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145; Leggat v. Gerrick, 35 Mont. 91, 8 L. R. A. (n. s.) 1238, 88 Pac. 788; O’Rourke v. Grand Opera House Co., 47 Mont. 459, 133 Pac. 965.)
It is not clear from the allegations of the complaint whether the theory of counsel in formulating it was that the deposit made with defendants was an escrow, or created a trust to be executed by defendants as trustees for the plaintiffs and the corporation upon the fulfillment by the latter of the conditions upon which it was to be executed. As defined by the common law, an “escrow” is a written instrument delivered to' a third person to take effect upon the happening of a contingency (2 Blackstone, 307). It becomes effective only on delivery after the happening of the contingency. This definition of the term is recognized by section 4599 of the Revised Codes. The term originally applied to deeds only, but has now been extended to written instruments generally. (Anderson’s Law Dictionary, 413; Alexander v. Wilkes, 11 Lea (Tenn.), 221, 225.) The deposit in question was not an escrow under either the original or the extended application of the term, because neither the money nor the receipted bill had any of the attributes of a written contract, — the receipted bill, the only writing included, being a mere acknowledgment of payment. That it was not an escrow, however, is not important. By accepting it, the defendants became voluntary trustees for the benefit of plaintiffs and the corporation (Rev. Codes, sec. 5371) and thus became bound to the highest good faith in executing the trust (sec. 5374). They could not deal with it for their own benefit or for any other purpose not connected with the trust. (See. 5375.) The title to the deposit remained in the plaintiffs until all the attached conditions had been fulfilled, and any disposition of it contrary to the agreement between plaintiffs and the corporation amounted to a conversion of it, rendering the defendants liable. The plaintiffs deeming themselves wronged by the disposition of it by the defendants, were at liberty to bring action against them, either for damages for a conversion, or in assumpsit for money had and received. As we read the complaint, counsel elected to sue in assumpsit upon the implied promise of defendants to return the deposit to them upon the failure of the corporation within a reasonable time to fulfill the conditions upon which it was made.
The issues of fact presented by the pleadings and submitted to the jury for a solution were: Did the defendants accept the deposit under the agreement alleged in the complaint? Did they make disposition of it in violation of the agreement? If so, did the plaintiffs, after learning of the disposition made of it, ratify the defendants’ conduct in disposing of it, and thus preclude a recovery in this action?
Upon the issue whether the trust agreement was made as alleged, the evidence was in hopeless conflict. The jury having resolved this question in favor of the plaintiffs and the trial court having refused a new trial, this court may not revise its action. In our opinion, however, there was no substantial evi denee to justify a finding that the defendants violated their duty under the agreement.
The plaintiffs’ evidence, which was not aided in any way by that of defendants, tended to show: When the agreement for the assignment and sale by the corporation of its rights under the lease" was made, the corporation was indebted to the defendants to the amount of $804 for borrowed money. . It was understood that if there was no encumbrance upon the land growing out of indebtedness due the state, the defendants were to apply the money deposited with them to the payment of this indebtedness and deliver the receipted bill to the corporation as evidence of a pro tanto payment of plaintiff Gregg’s account. The plaintiffs borrowed the money from the defendants by executing and delivering to them their promissory notes, as alleged in the answer. These notes embodied no condition, nor were they delivered upon any condition. In theory, therefore, the $804 became a fund in the hands of defendants to serve the purpose of the trust. The assignment with the bill of sale embodied in the same instrument, was executed in duplicate. One copy was delivered to plaintiffs’ attorney, and the other left in the possession of plaintiffs and defendant Johnson, who acted for all of the other defendants. The plaintiffs on the same day wrote to the state register of lands at Helena, inclosing the duplicate copy left with them, and requested the register to send them a contract of lease and a bond, the former to be executed by them and the latter by them and some surety company which was authorized to do business in Montana. Defendant Johnson wrote this letter for them at their request. To this letter the register replied on December 22, informing plaintiffs that the state board of land commissioners, having considered their letter of December 13 inclosing the assignment, had instructed him to inform them that their request had been granted, and that all the necessary papers, including a form of bond, for execution would be forwarded as soon as they could be prepared. On December 29 the register wrote to plaintiffs, inclosing a form of bond attached to a copy of a new lease, for execution, and a copy of an agreement which, plaintiff;} were required to enter into with the state coal mine inspector, stipulating how the coal thereafter extracted should be weighed in order to determine the amount of royalties which would become due under the lease. In this letter the register inclosed a bill for the fee required for recording the assignment. This bill and the fee for filing the lease the plaintiffs paid on March 27. The arrangement was that the lease and agreement should take the place of the assigned lease. The bond was intended to secure the faithful performance of the covenants of the lease and the agreement with the coal mine inspector. The new lease and bond were exacted under the regulations which had been adopted by the state board of land commissioners, and it was fully understood by the plaintiffs that they must furnish them in order to become substituted in the place of the corporation as lessees. There was correspondence thereafter by the plaintiffs in person and by defendant Johnson in their behalf, touching the ability of plaintiffs to give the required bond. They complained to the register that the surety companies refused to furnish a bond unless they would become incorporated. Finally they were informed by the register that no kind of a bond would be acceptable other than one executed by a surety company. He suggested that the expense of forming a corporation was not great and encouraged them to do this. They did not thereafter furnish the bond and, so far as the evidence discloses, did not make any earnest effort to do so. After the assignment was executed, on December 13, the plaintiffs, not waiting for its approval by the state board of land commissioners, went into the possession of the land and of all of the appliances of the corporation and began to mine and sell coal. They continued their operations until they were notified by the register on March 30, 1911, that they were trespassers and must cease their operations until they furnished the required bond and executed the new lease. They thereupon ceased operations for the time being, but resumed them again and continued them during the following winter. At the trial they undertook to explain their acts in this behalf by saying that the mine was the only source of supply of coal available to the people of Eyegate, and that they had conducted their operations at the request of the officers of the corporation to meet the necessities of the Eyegate people.
The foregoing brief narrative is gathered from the evidence introduced by the plaintiffs. That introduced by the defendants tended to show that the assignment was an unconditional sale of the rights of the corporation, and that the claim that the defendants were parties to the transaction as fiduciaries, or in any other capacity, was wholly unfounded. A careful scrutiny of the story as told by the plaintiffs, leaves a serious doubt whether it is entitled to any credit. But assuming for present purposes that the agreement was made as they allege, and that defendants agreed to hold the deposit until the corporation furnished satisfactory evidence that the land was free from any encumbrance in favor of the state which would affect the validity of the assignment, we do not think they were entitled to recover. It is true that, from a technical point of view, the officers of the corporation did nothing in the way of furnishing evidence that it was not indebted to the state, nor that the assignment carried all of its rights free from encumbrance. As soon, however, as the plaintiffs were notified by the register of the land office that the assignment had been approved and the new lease and bond were forwarded for execution, no condition being reserved and no mention being made of any indebtedness due from the corporation to the state (there is no evidence in the record whatever that there was any indebtedness), they had in their hands evidence that should have satisfied any reasonable person that they had received all they had bargained for. Defendant Johnson had written the letter of December 13, 1910, for them, at their request. According to Glendenning’s testimony, this defendant undertook to aid them in procuring a satisfactory bond. He therefore had knowledge that the purpose of the trust had been fully accomplished and, though he applied the money upon his own knowledge and not upon evidence furnished by the officers of the corporation, he did the plaintiffs no wrong. True, the plaintiffs both testified without objection that one of the conditions attached to the deposit was that it should not be applied until the plaintiffs had been able to procure a bond. In submitting the case to the jury, however, the court eliminated this evidence from the case by directing the attention of the jury to the agreement alleged in the complaint, and instructing them to find for the defendants unless they were satisfied from all the evidence that an agreement had been made as alleged and had been violated by the defendants. The case as made, therefore, failed to show that the plaintiffs suffered any wrong for which they were entitled to recover. As a whole, it suggests that when the plaintiffs found that they would be compelled to incur the expense of forming a corporation in order to procure a bond, they repented of their bargain and concluded to demand a return of their money, upon the theory that the corporation was at fault in not supplying the evidence which they themselves had procured by having the board of land commissioners approve the assignment. The court should have granted defendants a new trial.
Some evidence was introduced by defendants for the purpose of showing that the plaintiffs by their conduct after they ascertained that the defendants had applied the $80i to the discharge of the indebtedness due them from the corporation, ratified this disposition of it. We do not think this evidence sufficient to establish a ratification. The conclusion already reached, however, renders reference to it in detail unnecessary.
There is no evidence disclosing what became of the receipted bill. In this connection it may be remarked that under no circumstances were the plaintiffs entitled to recover the amount of it. 'Even if the defendants wrongfully delivered it to the corporation, it was not effective as a payment pro tanto of the indebtedness due plaintiff Gregg. Plaintiffs, if they so desired, could recover from the corporation by showing that the delivery was unauthorized.
In their brief, counsel do not point out wherein the court erred in refusing to submit the requested instructions. Our examination of them does not convince us that it did. In so far as any of them were pertinent to any issue presented by the pleadings, they were fully covered by those submitted.
Since a new trial must be ordered on the ground of insufficiency of the evidence to justify the verdict, it is not necessary to consider the value of the newly discovered evidence.
The order is reversed and the district court is directed to grant the defendants a new trial.
Reversed and remanded.
Mr. Justice Holloway and Mr. Justice Cooper concur.
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] |
PER CURIAM.
The above-entitled cause having been compromised and settled, the appeal herein is hereby dismissed as per stipulation of the parties.
|
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] |
Original application for writ of mandate to compel the respondent, as clerk and recorder of Silver Bow County, to permit relator, his assistants and such other persons as he might employ, to inspect and examine all public documents and records relating to the general election held in Silver Bow county on November 5, 1918. Alternative writ ordered issued on November 26, 1918, made returnable on December 2, 1918.
Note : The court thereafter, and prior to the day set for hearing, having been notified that respondent Anderson had complied with the writ asked for by relator, on December 9 ordered that respondent pay the costs of the application, amounting to $10.45.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This appeal by the Centennial Brewing Company from a judgment of conviction of a violation of the prohibition law presents for decision the question: Is it a criminal offense in this state to sell malt liquor which contains less than two per centum of alcohol measured by volume ?
At the general election held in November, 1916, the people, by direct vote, adopted a statute called familiarly the prohibition law. By its terms, any person who manufactures, sells, exchanges, barters, gives or disposes of any ardent spirits or any compound thereof capable of use as a beverage, or any ale, beer, wine or intoxicating liquor of any kind, is guilty of a mis demeanor. The Act did not become effective until December 31, 1918. (Chap. 39, Laws 1915; Chap. 175, Laws 1917.)
By an Act approved March 5, 1917 (Chap. 143, Laws 1917), and known as the Enforcement Act, elaborate machinery was provided for the enforcement of the prohibition law, and as one means to that end, section 2 defines intoxicating liquors as follows:
“See. 2. The phrase ‘intoxicating liquors’ shall be held and construed to include whisky, brandy, gin, rum, wine, ale, and any spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind or description, whether medicated or not, and whether proprietory (proprietary), patented or not, which contains as much as two per centum of alcohol measured by volume, and which is capable of being used as a beverage. ’ ’
It is the contention of appellant that the concluding clauses, “which contains as much as two per cenhm of alcohol measured by volume, and which is capable of being used as a beverage,” modify the terms spirituous, vinous, fermented or malt liquors and liquor or liquid of any kind, and therefore it is not unlawful to sell spirituous, vinous, fermented or malt liquors which do not contain as much as two per centum of alcohol measured by volume, or which are not capable of use as beverages. This contention cannot be upheld.
1. It assumes necessarily that the Enforcement Act amends the prohibition law. To illustrate: By the prohibition law the sale of ardent spirits is prohibited altogether without reference to alcoholic contents, whereas, if appellant’s contention be upheld, the sale of spirituous liquors containing less than two per cent of alcohol is not prohibited.
“Ardent spirits” and “spirituous liquors” are terms of general use and each has a well-defined, well-understood meaning. In Webster’s International Dictionary the term “ardent” is defined as: “Hot or burning; causing a sensation of burning; fiery, as ardent spirits, that is distilled liquors. ’ ’ Century Dictionary — Ardent Spirits: “Distilled alcoholic liquors, as brandy, whisky, gin, rum,” Standard Dictionary — Ardent Spirits: “Alcoholic distilled liquors.” Worcester’s Dictionary — Ardent Spirits: “A term applied to liquors obtained by distillation such as rum, whisky, brandy and gin.” Black’s Law Dictionary— Ardent Spirits: “Spirituous or distilled liquors.”
“Spirituous liquor means distilled liquor.” (1 Woollen & Thornton on the Law of Intoxicating Liquors, sec. 7.) Spirituous — “Containing much alcohol; distilled, whether pure or compounded, as distinguished from fermented; ardent; applied to a liquor for drink.” (Century Dictionary.) Spirituous Liquors — -“Any intoxicating liquor produced by distillation or by rectifying, compounding or otherwise treating or using distilled alcoholic fluids in distinction from fermented or brewed intoxicating beverages.” (Standard Dictionary.) Spirituous Liquors — “These are inflammable liquids produced by distillation and forming an article of commerce.” (Black’s Law Dictionary; Cyclopedic Law Dictionary.) Spirituous Liquor— “Distilled liquor.” (Anderson’s Law Dictionary.) The term “spirituous liquor” means distilled liquor. (Black on Intoxicating Liquors, sec. 3.) “Spirituous liquor is that which is in whole or in part composed of alcohol extracted by distillation; whisky, brandy and rum being examples.” (15 R. C. L. 249.)
In Sarlls v. United States, 152 U. S. 570, 38 L. Ed. 556, 14 Sup. Ct. Rep. 720, the supreme court of the United States approved the definitions as given by Webster, Worcester and Century Dictionaries. In United States v. Ellis, 51 Fed. 808, the court, in speaking of these terms used in a prohibition statute, said: “Ardent and spirituous are used indiscriminately as having the same meaning.”
There cannot be any question that ardent spirits and spirituous liquors are terms used to express the same meaning, and since by the prohibition law the sale of ardent spirits is prohibited absolutely, the sale of all spirituous liquors is likewise prohibited, without reference to the alcoholic contents, unless the Enforcement Act has amended the prohibition law. But such was not its purpose and is not its effect.
It does not assume to be an amendment and it does not [2, 3] reenact any part of the prohibition law, and for this reason it cannot have the effect of an amendment. Section 25, Article Y, of the state Constitution, provides: “No law shall be revised or amended, or the provisions thereof extended by •reference to its title only, but so much thereof as is revised, amended or extended shall be re-enacted and published at length.” Neither can the doctrine of amendment by implication apply.
2. Appellant’s contention leads to a contradiction of terms employed in section 2 of the Enforcement Act. Reduced to its- simplest form, the contention amounts to this:
The sale of spirituous, vinous, fermented or malt liquor, not capable of being used as a beverage, is not prohibited. The word “beverage” means a drink or liquor for drinking. (Century Dictionary.) Every one of the terms — spirituous liquor, vinous liquor, fermented or malt liquor — has a well-understood meaning. Every one of those liquors is not merely capable of being used as a beverage, but it is in fact a beverage, and it is a contradiction of terms to speak of spirituous, vinous, fermented or malt liquor, not capable of being used as a beverage.
3. The grammatical construction of the section does not admit of the application of appellant’s theory. Under the construction contended for, the sentence would read: The phrase “intoxicating liquors” shall be held and construed to include any spirituous, vinous, fermented or malt liquors which contains as much as two per centum, of alcohol and which is capable of being used as a beverage. In the connection in which they are employed, the words “any,” “spirituous,” “vinous,” “fermented” and “malt” are adjectives, all modifying the noun “liquors,” which is plural in number, whereas each of the verbs “contains” and “is” is singular.
The rule of. grammatical construction is merely an aid in interpretation, and if the text of the statute indicates a legislative intention contrary to that which would follow from the application of the rules of grammar, then the rule of grammati cal construction must give way, but in the absence of a clear intention disclosed by the text, then, as said by this court in Jay v. School District, 24 Mont. 219, 61 Pac. 250, “we must elicit the purpose and intent of it [the statute] from the terms and expressions employed, if this is possible, calling to our aid the ordinary rules of grammar.”
4. The contention of appellant does violence to another rule of statutory construction. The last antecedent before either of the modifying clauses is liquor or liquid. It is a rule of law as old as the law itself, that a relative clause shall be construed to relate to the nearest antecedent that will make sense (Traverse City v. Blair Township, 190 Mich. 313, Ann. Cas. 1918E, 81, 157 N. W. 81; Endlich on Interpretation of Statutes, sec. 414), or, as more aptly stated: “By what is known as the doctrine of the ‘last antecedent,’ relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote, unless such extension is clearly required by a consideration of the entire Act.” (36 Cyc. 1123.) As said of the last preceding rule, this one is merely an aid in interpretation, and, in case of conflict, must give way to the more general rule that the intention of the legislature is to be pursued, if possible, but unless the statute requires a different construction, the rule of the last antecedent is applicable as fairly indicating the true purpose and intent of the lawmakers.
Appellant argues plausibly that no reason can be advanced why a malt liquor containing only one-half of one per cent of alcohol should be under the ban, while a patented medicine containing 1.95 per cent of alcohol and capable of being used as a beverage is suffered to be sold. We confess our inability to justify the apparent discrimination; but this furnishes no reason for a construction of the language contrary to its manifest import. We cannot substitute judicial opinion of expediency for the will of the legislature. It is too well settled now to be open to argument that it is within the province of the legislature to define the term “intoxicating liquors,” and, if it is deemed necessary,- in order to avoid subterfuges and frauds which fetter the effective enforcement of the law, to include within the definition beverages which are in themselves innocuous, they may be included. (1 Woollen & Thornton on Intoxicating Liquors, sec. 114; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 57 L. Ed. 184, 33 Sup. Ct. Rep. 44.) In that case the court said: “It is well established that, when a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction separately considered is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within, the admitted power of the government.”
In our judgment, the meaning of section 2 above is [1] perfeetly clear. Whisky, brandy, gin, rum, wine, ale, spirituous liquors-, vinous liquors, fermented or malt liquors, as those terms are generally understood, are all declared to be. intoxicating liquors within the meaning of the prohibition law, and that, too, without reference to the amount of alcohol contained in them. Every other liquor or liquid of whatever kind or description, whether medicated, proprietary or patented, is likewise within the same definition if it contains as much as two per centum of alcohol measured by volume, and is capable of being used as a beverage. This construction harmonizes the two statutes and treats the Enforcement Act as a supplement to, and not as an amendment of, the prohibition law. It makes a grammatically correct sentence of the section and avoids any contradiction in terms. It applies the relative clauses to the last antecedent and, above all other considerations, it gives force and effect to the manifest purpose of the lawmakers.
The Act adopted by the people in November, 1916, is not in any sense a statute regulating the liquor traffic. Its avowed purpose is to outlaw a business theretofore regulated by -license legislation. The title of the Act indicates its purpose. “An Act prohibiting the introduction into, the manufacture of, and the giving, exchanging, bartering, selling, or disposing of ardent spirits, ale, beer, wine or intoxicating liquors within the state of Montana,” etc.
The manufacture and sale of denatured alcohol, alcohol for scientific or manufacturing purposes and wine intended for the sacrament are specifically excepted from the operation of the law, but, with these exceptions, the sale of everything which falls within the fair import of the terms employed is prohibited absolutely. The statute was clearly designed as one of suppression and not of supervision. As indicated beyond cavil, the purpose of section 2 above is to aid in the enforcement of the prohibition law by making certain that which was deemed to be uncertain- — by giving to the term “intoxicating liquors” a definition so comprehensive as effectually to forestall every attempt at evasion by any subterfuge whatever.
Long before either of these statutes was enacted, legislative and judicial history had disclosed that the ingenuity of man can devise almost limitless means for evading a prohibition law; that any beverage by name may be counterfeited, and that the use of such general terms as “intoxicating liquors” only leads to confusion and a practical annulment of the law itself, and with this history and experience before them, the members of the legislative assembly in 1917 undertook the enactment of Chapter 143 to render the prohibition law effective and its enforcement a matter of reasonable certainty.
No importance whatever can be attached to the fact that in defining intoxicating liquors in section 2 of the Enforcement Act, the term “beer” by name is omitted. As heretofore observed, this Act is not in any sense an amendment of the prohibition law, and by that law the sale of beer is prohibited absolutely. It could have been only out of abundance of caution that any liquor was designated by name. The concluding clauses of that section were not designed to exempt from the operation of the prohibition law any liquor properly so called. They were designated to mark the deadline beyond which bitters, drugs and other patented and proprietary medicines and nostrums, under whatever name or description, might not become the vehicle for a continuation of the traffic in alcoholic beverages. The legislature doubtless concluded that the alcoholic contents of these preparations — less than two per cent — would be so far neutralized by the other ingredients as to render them practically harmless as beverages.
No useful purpose could be served by a review of the all but limitless number of adjudicated eases construing prohibition laws. The statutes of the several states differ so materially in the language employed that the construction of one is of little aid in the interpretad "u of another. Furthermore, there is a conflict among the authorities construing somewhat similar statutes.
In People v. Strickler, 25 Cal. App. 60, 142 Pac. 1121, the court was called upon to construe a section of the local option law which reads as follows: “The term ‘alcoholic liquors’ as used in this Act, shall include spirituous, vinous and malt liquors, and any other liquor or mixture of liquors which contain one per cent by volume, or more, of alcohol, and which is not so mixed with other drugs as to prevent its use as a beverage.” The rule of the last antecedent was disregarded, and it was held that the clause “which contain one per cent per volume, or more, of alcohol,” modifies the terms “spirituous, vinous and malt liquors” as well as the terms “liquor” or “mixture of liquors.”
In State v. Hemrich, 93 Wash. 439, L. R. A. 1917B, 962, 161 Pac. 79, the Washington supreme court construed a section of the prohibition law which provides: “The phrase ‘intoxicating liquor,’ wherever used in this Act, shall be held and construed to include whisky, brandy, gin, rum, wine, ale, beer and any spirituous, vinous, fermented or malt liquor, and every other liquor or liquid containing intoxicating properties.” The doc-' trine of the last antecedent was applied, and it was held that the phrase “containing intoxicating properties” modifies the terms “other liquor or liquid,” and does not modify any of the other preceding terms.
The strained construction given to the statute considered in Ex parte Hunnicutt, 7 Okl. Cr. 213, 123 Pac. 179, may have been justified under the circumstances, but the reasoning by which the conclusion was reached does not commend it to our judgment. None of the decisions is particularly persuasive here.
Under the construction of these statutes which we have adopted, it is a criminal offense in this state to sell malt liquor which contains less than two per centum of alcohol.
In passing, we may observe that section 2 of the Enforcement Act, in so far as it includes malt liquors within the definition of intoxicating liquors, is to be construed according to the approved usage of the language (Rev. Codes, sec. 15), that is to say, “malt liquor” having acquired a well-defined meaning, will be held to have been used by the legislature to indicate an alcoholic beverage,- — the percentage of alcohol being immaterial. (State v. Hemrich, above.)
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Cooper concur.
|
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] |
MR. CHIEF JUSTICE BRANTLT
delivered the opinion of the court.
Action to recover of the defendant $1,000, the par value of ten shares of its capital stock upon a subscription contract therefor. The complaint alleges: That on or about May 28, 1913, the defendant and other persons agreed to form a corporation to conduct a sheet metal business, and for that purpose signed the following agreement:
“We, the undersigned, in consideration of the mutual promises herein contained do hereby severally subscribe for the number of shares of the capital stock of the Enterprise Sheet Metal Works, a corporation proposed to be organized under the laws of the state,of Montana, with a capital stock of $30,000, of the par value of $100 per share, and promise to pay therefor in cash, except as hereinafter provided, upon the demand of the treasurer of said proposed corporation after the organization thereof.
“The undersigned, H. B. Stridiron and John Sadring have heretofore been engaged in business as a partnership under the firm name of Enterprise Sheet Metal Works, and as such partners are joint owners of considerable personal property consisting of stock on hand, tools and machinery, bills receivable, accounts receivable, and a certain patent for the manufacture and sale of a certain flume, the equity in which H. B. Stridiron and John Sadring value at the sum of $15,000.
“It is mutually agreed by and between the subscribers hereto that all said personal property shall bé turned over by said H. B. Stridiron and John Sadring to said proposed corporation, subject to tbeir partnership indebtedness in payment of the stock hereinafter subscribed for by them and the same shall be received by said proposed corporation in full payment of 150 shares of the stock of said proposed corporation.”
That defendant subscribed for ten shares of the stock of the corporation to be formed; that thereafter “the plaintiff was duly incorporated under the laws of the state of Montana by the subscribers to said subscription contract, in pursuance with the terms thereof”; that it ever since has been and now is engaged in the sheet metal business; that as such corporation the plaintiff succeeded to and acquired all the rights of said subscribers and each of them to the amount for which they subscribed; that plaintiff-has issued its stock to its subscribers; that it “has issued and delivered to defendant ten shares * * * in accordance with his said subscription contract, and that the same has been accepted by him; that he has refused to pay for the same or any part thereof, though the treasurer of the plaintiff has repeatedly demanded payment. ’ ’ Judgment is demanded for $1,000, the subscription price, with interest thereon from April 25, 1915. The defendant interposed a general demurrer, which was overruled. Thereafter issues >vere joined by defendant’s answer and plaintiff’s reply thereto, a trial of which resulted in a judgment in favor of plaintiff. From this judgment and an order denying him a new trial, defendant has appealed.
The principal contention made by counsel is that the complaint does not state a cause of action. The argument is that subscriptions for the entire amount of the capital stock of plaintiff specified in the contract and in the articles of incorporation is a condition precedent which must have been fulfilled before the defendant became liable, and that, since the complaint contains no allegation of the amount that has been subscribed, nor any allegation that any of it other than that of the defendant has been subscribed for, it is fatally defective.
The rule is well established that, when a subscription is made to the shares of the capital stock of a corporation the amount of which is specified in the charter, articles of incorporation, or in the contract of subscription, and there is nothing disclosing a contrary intention, the subscription is made upon the implied condition that the whole amount shall' be subscribed before the subscriber may be lawfully called on to pay for the shares contracted for or any assessment thereon, except for the preliminary expenses. (Morgan v. Landstreet, 109 Md. 558, 130 Am. St. Rep. 531, 16 Ann. Cas. 1247, and cases cited in note, 72 Atl. 399; 1 Thompson on Corporations, sec. 613; 7 R. C. L., p. 232, sec. 205; Morawetz on Corporations, sec. 146; Cook on Stock and Stockholders, sec. 176; 10 Cyc. 493.) The reason for the rule is stated by the authorities in varying terms, but in substance they are all in accord. In Stoneham etc. R. Co. v. Gould, 2 Gray (Mass.), 277, the court said: “It is a rule of law too well settled to be now questioned that when the capital stock and the number of shares are fixed by the act of incorporation or by any vote or by-law passed conformably to the act of incorporation, no assessment can be lawfully made upon the shares of any subscriber until the whole number of shares has been taken. * * * This is no arbitrary rule; it is founded on a plain dictate of justice, and the strict principles regulating the obligation of contracts. When a man subscribes a share to a stock, to consist of 1,000 shares, in order to carry on some designated enterprise, he binds himself to pay a thousandth part of the cost of such enterprise. If only 500 are subscribed for, and he can have no assurance which he is bound to accept that the remainder will be taken, he would be held if liable to assessment, to pay a five-hundredth part of the cost of the enterprise, besides incurring the risk of entire failure of the enterprise itself, and the loss of the amount advanced toward it.”
In Livesey v. Omaha Hotel Co., 5 Neb. 50, the reason is stated thus: “The rule seems to be well established that, when the charter or subscription contract specifically fixes the capital stock at a certain amount, divided into shares of a certain amount each, the whole amount of capital so fixed and required for the accomplishment of the main design of- the company must be fully secured by a bona fide subscription before an action will lie upon the personal contract of subscribers to stock to recover an assessment levied on the shares of stock, unless there is some clear provision in the contract to proceed in the execution of the main design with a less subscription than the whole amount of capital specified. This rule seems to be founded on the principle that by the terms of the grant to the corporation it is essential to the power of assessment for the general objects and purposes of the institution that the whole capital stock required by the condition precedent must be represented and acted upon by the assessment.”
In some states there are statutes which expressly provide that assessments may be made or the purchase price demanded when a certain fractional part of the entire amount has been taken. (San Bernardino Inv. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487; Anvil Min. Co. v. Sherman, 74 Wis. 226, 4 L. R. A. 232, 42 N. W. 226; 7 R. C. L. 205; 1 Thompson on Corporations, sec. 615.) Such statutes are held to modify the general rule so that each subscriber is presumed, when he subscribes, to give his consent to become liable when the corporation has been organized and subscriptions have been made to the required fractional amount of the entire stock. (7 R. C. L. 205.) But, whether the general or modified rule applies, the complaint or declaration does not disclose a liability unless it alleges facts showing that the condition precedent has been fulfilled; in other words, under the general rule, that all the capital stock has been subscribed, or, under the modified rule, that the fractional part has been subscribed. (Livesey v. Omaha Hotel Co. and cases last cited supra.) The general rule has not been modified by statute in this state. Tested by it, the complaint in this case is wholly insufficient and the demurrer should have been sustained.
Counsel for plaintiff insist that the allegation that “plaintiff was duly incorporated under the laws of the state of Montana by the subscribers to said subscription contract, in pursuance with the terms thereof,” is a sufficient averment that all the conditions of the contract have been fulfilled. With this contention we do not agree. The allegation that the corporation was duly organized means no more than that articles of incorporation were formulated and record made of them with the proper officers as required by the statute (Eev. Codes; sec. 3825, as amended by Acts 1909, p. 148) — in other words, that the corporation has gained a legal status for one of two purposes ; that is to say, if the capital stock has all been subscribed, the corporation at once acquires the capacity to enter upon the accomplishment of its main enterprise. If only formative shares have been taken by the persons effecting the organization, legal capacity has been acquired for no other purpose than to solicit subscribers, or to sell shares in order to secure the capital to carry out the main enterprise. “Organization, unlike the power to do business, does not necessarily contemplate the incurring of debts nor make available capital a necessity, and there seems to be no reason for relaxing the rule that liability on a subscription is conditional upon all the stock being taken simply because the corporation may organize before this.” (7 E. C. L., p. 232, sec. 205.) The fact that several provisions of the Code, referred to later, imply that organization may be effected prior to subscription for all the stock, does not require the conclusion that the legislature intended to set aside, annul or modify a settled rule of law founded upon a “plain dictate of justice and the strict principles regulating the obligations of contracts.” In our opinion, nothing short of an express provision on the subject would suffice to accomplish this. The modifying phrase, “in pursuance with the terms thereof,” is a mere bald conclusion. True, the statute (Eev. Codes, sec. 6572) permits a party in declaring upon a contract containing conditions precedent to allege generally that he has performed all the conditions on his part. In order to avail himself • of this permissive provision, however, the pleader must couch his allegation in the terms of the statute or in terms substantially equivalent. (Ivanhoff v. Teale, 47 Mont. 115, 130 Pac. 972.)
Counsel contend that tbe allegation of a delivery of his stock to the defendant and his acceptance of it is sufficient to obviate the necessity of alleging that all the stock has been subscribed. By this contention counsel seek to invoke the doctrine of waiver. This term is defined as “the intentional relinquishment of a known right.” (Anderson’s Dictionary.) “There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts which will enable him to take effectual action for the enforcement of such rights. No one can acquiesce in a wrong while ignorant that it has been committed, and that the effect of his action will be to confirm it. To constitute a waiver on the part of one party to a contract of the performance of the contract on the part of the other party, it must be shown that the party alleged to have waived his rights had knowledge of what the other party had done contrary to the terms of the contract and what part thereof he had failed to perform; and if the contract is affirmed in ignorance of facts by which it is invalidated, there is no waiver of the right to rescind. * * * The burden of proving knowledge is on one who relies upon a waiver, and such knowledge must be plainly made to appear. Certainly a presumption of waiver cannot be rested on a presumption that the right alleged to have been waived was known.” (29 Am. & Eng. Ency. of Law, 2d ed., 1093-1095.)
To make the principle invoked available to plaintiff, therefore, it was incumbent upon it to allege facts showing knowledge by defendant that all the stock had not been subscribed, and that, having this knowledge, he nevertheless accepted that for which he had subscribed. The allegation in question falls short of this requirement; for it implies no knowledge as to how much of the stock had been subscribed. Indeed, it showed nothing further than that the defendant had agreed to take ten shares and did take them. It is true that a waiver may be implied by the conduct of him against whom it is al leged; but the circumstances must be such as to furnish the basis for an inference of knowledge and intention to forego the right which he might have asserted. Such a case is not made out by the complaint.
In support of their contention in this behalf counsel cite the case of Inter-Mountain Pub. Co. v. Jack, 5 Mont. 568, 6 Pac. 20. That was an action to recover an assessment on shares of the capital stock of the plaintiff. The territorial court held that an allegation in the complaint that the defendant had accepted the shares and made payment of one assessment thereon was sufficient to show a waiver by him of his objection made by general demurrer that all the shares had not been taken. In our opinion, the court was in error, in that it did not appear from the complaint that the acceptance and payment were made by defendant with knowledge that all the shares had been taken. Even so, it is distinguishable from this ease in that it is alleged in the complaint here that the defendant has repeatedly refused payment.
Counsel admit that the general rule governing stock sub scriptions ápplies in the absence of legislation modifying it, but insist that several provisions of the Codes relating to corporations have in effect done this, so that it now has no application ‘in this jurisdiction. These provisions are: Amended section 3825, Laws 1909, p. 148; section 1, Chapter 94, Laws 1909, p. 124; amended sections 3818 and 3889, Laws 1915, Chapter 88; and sections 3829, 3840, 3867 and 3897. But none of them sustain the contention. To take them up and subject them to a critical examination would accomplish no beneficial result. It is sufficient to say of them that they contain no provision declaring what portion of the capital stock much be subscribed before the corporation is authorized to begin business. It is true that section 1, Chapter 94, Laws of 1909, supra, declares that the certificate issued by the secretary of state, as prescribed by amended section 3825, shall be prima facie evidence of the corporate character and capacity of the corporation and of its right to do business in this state; but this pre sumes a corporation with capital subscribed under the condition precedent implied by the general rule, or in accordance with an agreement had by the subscribers either at the time they made their subscriptions or thereafter when they conceived that the corporation could successfully carry on the business for which it was organized with the amount of capital stock subscribed. At best, these provisions, taken together with the others cited, which have to do with the mode of levying assessments, the holding of meetings, the method of voting, etc., mean nothing more than that the legislature enacted them to enable the subscribers to fix by convention among themselves the amount of capital stock necessary to enable the corporation to begin business. They do not imply that every corporation after subscription has been obtained in any number of shares less than the whole specified in the articles may engage in the enterprise for which it was organized. Nor, we think did it intend to enable or permit a corporation to deal with the public in an attempt to accomplish its main enterprise, until it has at its command a sufficient capital to warrant a reasonable expectation of its success. True, amended section 3825 permits three or more persons who have taken a nominal amount of stock to perfect an organization. But, as we have said above, the legal status thus acquired must be understood to be limited to preliminary work of securing capital by the co-operation of others; otherwise the prima facie capacity evidenced by the certificate of the secretary of state would be the warrant for the perpetration of gross fraud upon the public, rather than for the conduct of some legitimate business enterprise.
The judgment and order are reversed, and the cause is remanded, with leave to plaintiff to amend the complaint if it desires to do so.
Reversed and remanded.
Mr. Justice Sanner and Mr. Justice Holloway concur.
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] |
MR. JUSTICE PIG-OTT
delivered the opinion of the court.
This proceeding is an application for the writ of supervisory control. Relator is the defendant in the action of Equity Co-operative Association v. Western Accident & Indemnity Company, a Corporation, which was brought and is pending in the district court of Richland county. The relief sought is the annulment of an order of respondents’ court and judge denying the defendant’s demand for a change of venue from Richland county to Lewis and Clark county, and a direction to respondents to enter an order changing the place of trial to Lewis and Clark county.
The sole ultimate question involved is: Was the contract upon which'the action is founded to be performed in Richland county or in Lewis and Clark county? If it was to be performed in the former county, the relator is not entitled to any relief; if it was to be performed in the latter county, the relief must be granted.
The petition in support of the application for the writ exhibits, in substance, these facts: The complaint in the action states that the plaintiff is and at all the times mentioned therein has been a corporation of Montana and engaged in business at Enid, Richland county; that the defendant — relator in this proceeding — at all such times has been and now is a corporation of Montana engaged in the business of bonding and indemnifying against loss, with its principal office and place of business at Helena, Montana; that the defendant, therein called the surety, made a contract with the plaintiff, therein called the employer, by which it covenanted that if the plaintiff should suffer pecuniary loss by certain wrongful acts on the part of an employee named, the defendant would pay the plaintiff such loss not in excess of $3,000, — “Provided, however; * * * 2. That within ten days after the discovery of any loss, the employer shall have delivered notice thereof to the surety, at its home office in Helena, Montana. 3. That within ninety days after the discovery of such loss, the employer shall have delivered to the surety, at its home office in Helena, Montana, written claim stating the items and the dates of the losses, é. That no suit, action or proceeding shall be brought against the surety by the employer within two months after the delivery of such statement of claim, * * * ”; that during the life of the contract the plaintiff suffered such loss in the sum of $10,263.-35; that plaintiff has complied with all the requirements and conditions of the contract on its part to be performed; and that none of the provisions of the contract has been altered or waived by the parties. Summons was served upon defendant at its home office and place of residence at Helena, in Lewis and Clark county. Defendant made timely demand for an order changing the place of trial from Richland county to Lewis and Clark county, basing it upon the papers and pleadings in the action and two affidavits, the latter averring, among other things not here material, that the defendant’s principal place of business has always been, and now is, in Lewis and Clark county; that the contract was made and was to be performed at Helena in that county; “that notice of the discovery of any loss by the plaintiff under said bond was required by the terms and conditions thereof to be given to the defendant at its home office in Helena, Montana. That the written claim by the plaintiff upon the defendant to be reimbursed for any loss is expressly required by the terms of said bond to be delivered to the defendant at its home office, in Helena, Montana. That any claim that would be paid under said bond would be paid through the home office of the defendant company in the city of Helena, Montana. That the contract herein sued upon was to be performed at the city of Helena, in the county of Lewis and Clark, state of Montana, and not in the county of Richland, state of Montana”; that the articles of incorporation certify its principal place of business to be in Helena, Lewis and Clark county, and that the defendant is a resident of that county. In resisting the motion and demand for the change of venue the plaintiff showed by affidavit that its principal place of business and office was at Enid, in Richland county. The respondents denied the demand and retained the action for trial in Richland county, and thereupon the present proceeding was commenced in this court. An order to show cause why the writ of supervisory control should not issue was made, which respondents move to quash upon the ground that the petition is insufficient to entitle the relator to relief.
Upon the showing thus made, relator contends that under the provisions of section 6504 of the Revised Codes, as interpreted by this court in State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 Pac. 1030, the demand for change of venue should have been granted. It is argued that the contract was to be performed in Lewis and Clark county. The case cited is to the effect that an action upon a contract, whether it be express or implied, or in part express and in part implied, must, upon demand of the defendant, be tried in the county in which the contract was to be performed, subject only to the power of the court to change the venue for one or more of the reasons enumerated in divisions 2, 3 and 4 of section 6506 of the Revised Codes; and further, that for breach of a contract to pay money, the county in which the contract was to be performed is the county in which the money was to be paid; and it was held, also, that since a plaintiff is entitled to bring his action in the county where the contract was to be performed, he may, if the place .-of performance does not appear from the complaint, defeat the defendant’s demand for change of venue to the latter’s residence by affidavit disclosing that the contract was to be performed in the county where the action was begun.
1. Relator insists that the contract upon its face shows that the payment to the plaintiff for which the defendant covenanted must, when due, be made at Lewis and Clark county, pointing to the admitted facts that the defendant’s home office, as well as its principal place of business, always has been and is in that county, that the contract was made and delivered there, and that both the notice and claim of loss are required to be made there, and also to the provisos. But these facts as to residence and place of business do not of themselves show, or raise a presumption, that it was the intention to perform the contract by payment in that county. Nor do the provisos, as a whole, evidence such intention. They are for the benefit of the defendant and for its protection, and have nothing whatever to do with appointing a place at which payment shall be made in event of loss. Compliance by the plaintiff with the requirements of provisos 2 and 3 is a condition necessary to the creation of any actual liability or debt, though the relation of debtor and creditor 'may be said to have had a potential existence at least from the day of the loss, if not, indeed, from the delivery of the contract; yet such compliance did not make the debt or liability due or then instantly payable, for proviso 4 postpones the accrual of any right of action by the plaintiff for the period of two months after it shall have complied with the stipulations of provisos 2 and 3, thereby granting to the defendant a space of time during which it might rightfully refuse payment. So it should seem to be clear that the plaintiff’s compliance with the second and third provisos — that is, by delivering the notice and the claim to defendant at Lewis and Clark county — could not have made the money then and there immediately due, whatever might have been the effect in that respect without the presence of the fourth proviso, — were that proviso eliminated, application of.the familiar rule declared in section 5046 of the Revised Codes that if no time is specified for the performance of an act required to be performed and such “act is in its nature capable of being done instantly — as, for example, if it consists in the payment of money only — it must be performed immediately upon the thing to be done being exactly ascertained, ’ ’ might perhaps make Lewis and Clark county the place where payment was to be made. In essence the contract is that if the plaintiff should sustain loss and within the times limited deliver notice and claim thereof to the defendant at its home office in Lewis and Clark county, the defendant will, at the end of two months after delivery of the claim, and not before, become immediately liable, or, to describe the condition more accurately, the plaintiff will have the right at the end of the two months, but not before, lawfully to demand and proceed to enforce its right to payment. In short, the defendant’s breach was intended to be, and consisted in, its failure to pay at the end of the two months, and until that time the defendant had not broken its covenant. The contract does not, therefore, either expressly or by inference indicate or designate Lewis and Clark county as the place where payment was to be made in case of loss. Nor does the contract indicate that Richland county was intended to be such place, for the words “Equity Co-operative Association of Enid, Montana,” while sufficient to indicate that the plaintiff then resided at Enid, do not show or imply that the plaintiff would be a resident of, or within, that county at the time when payment was to be made upon breach by the defendant of its covenant. So neither Lewis and Clark county nor Richland county is designated by the contract as the place in which it was to be performed.
Broadly speaking, the rule is that if no place for payment be specified or agreed upon, the debtor must, in order to perform his obligation, pay or tender payment to the creditor where the latter may then reside or conduct business or be found. Such was the holding in State ex rel. Coburn v. District Court, 41 Mont. 84, 86, 108 Pac. 144. The statute law of this state on that subject, appearing in sections 4932 and 4933 of the Revised Codes, states the rule more comprehensively and with greater particularity: “See. 4932. An offer of performance must be made to the creditor * * * , if such creditor * * is present at the place where the' offer may be made; and, if not, wherever the creditor may be found. See. 4933. In the absence of an express provision to the contrary, an offer of performance may be made, at the' option of the debtor: 1. At any place appointed by the creditor; or, 2. Wherever the person to whom the offer ought to be made can be found; or, 3. If such person cannot, with reasonable diligence, be found within the state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state.”
The doctrine rests upon the presumption or implication of law that the intention of the parties was that payment should be made to the creditor at his place of business, or residence, or wherever found, it being the duty of the debtor to seek the creditor. The implication is imported by the law into, and is part of, the contract. Said this court in the Coburn Case, supra: “If at the time this contract of employment was entered into there was not any place of payment mentioned, the parties-will be held to have intended that the contract should be construed in view of the rule of law above, and what was actually intended becomes as much part of the agreement as any express provision, if there is not anything in the contract inconsistent therewith.”; and Mr. Chief Justice Kent, in Thompson v. Ketcham, 8 Johns. (N. Y.) 190, 5 Am. Dec. 332, declared that “where the operation of a contract is clearly settled by general principles of law, it is taken to be the true sense of the contracting parties.” As illustrating the scope of the rule and its effect, we may remark that the principle forbidding the reception of prior or contemporaneous oral promises or agreements which would vary or add to or subtract from the express terms of a contract reduced to writing, is applicable to oral promises or agreements which would vary the legal construction or import of such a contract although not in contradiction of its express terms. (Riddell v. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. 241.)
As we have already said, the contract does not designate any specific place for payment, but does provide by implication of law that such payment shall be made to the plaintiff at its place of business or residence or wherever it may be found, and although such place is not specifically designated, it can be made certain by evidence. "When such place shall have been ascertained, the county where the contract was to be performed will thereby be designated as such place, for that is certain which can be made certain.
2. Relator’s next contention is that the showing on the demand for change of venue was sufficient to prove that payment was to be made at Lewis and Clark county. For several reasons this is untenable. It is to be observed that the demand for change of venue was based upon the papers and pleadings in the action, as well as upon the two affidavits. Now, the complaint, which was duly verified and therefore also an affidavit, states that at the time the action was commenced the plaintiff was a corporation of Montana engaged in business at Enid, in Richland county. The residence of the plaintiff at that time fixed the rights of the parties in respect of the place of trial in so far as residence was the controlling element or factor; the plaintiff’s residence at any subsequent time could not be of moment. "When the question arises as to whether or not a change of venue shall be had, the principal place of business of a domestic corporation is its residence. Again, the complaint alleges that none of the provisions in the contract has been altered or waived, and while this is without value as a pleading because no part of the plaintiff’s statement of its cause of action, being in attempted denial of an anticipated defense, it was competent, as evidence by way of affidavit, in opposition to the demand for the change, because it affirmed that the contract as reduced to writing, including the implied provision touching the place where payment was to be made, had not been changed or waived; but if this averment should be considered as the statement of the opinion of the affiant, we may remark in passing that it would be at least of as much evidentiary value as the naked statements in the affidavits on behalf of the defendant — assuming them to possess any probative effect at all — that the contract was to be performed in Lewis and Clark county, and, if the view be taken that the opposing averments are of equal value, the one is a setoff to the other two.
Since in legal effect the contract stipulates that payment was to be made at the place of residence or business of the plaintiff, or wherever it might be found within the state, the complaint of itself, or it and the affidavit, thus identified Richland county as that place, unless the contrary was made to appear.
The burden was, of course, upon the defendant to show that a place other than the residence of the plaintiff was agreed upon as the place where payment should be made (King v. Buckmcm, 20 N. J. Eq. 316). The affidavits which were intended to prove this supposed fact do not deny that the plaintiff’s residence was in Richland county when the action was begun, but contain the statements, as has been noted, that the contract was to be performed by making payment at its home office in Lewis and Clark county. This bald assertion seems, in view of its context, to be merely an expression of opinion by the affiants as to the legal construction or interpretation which should be placed upon the contract. In any event, however, such statements are sheer legal conclusions and were with out evidentiary value. If the contract has been so changed that Lewis and Clark county became the place in which payment was to be made, the burden rested upon the defendant to state the' facts establishing the change. This it utterly failed to do.
The respondents committed no error in denying the demand for a change of venue.; The order to show cause is discharged, the application denied, and the proceeding dismissed.
Dismissed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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MR. CHIEF JUSTICE BRANTDY
delivered the opinion of the court.
The trial of this cause in the district court resulted in a verdict and .¿judgment in favor of plaintiff. Defendant has appealed from the judgment and order denying him a new trial.
The complaint contains two counts. The first alleges that on June 3, 1913, the plaintiff sold and delivered to defendant, at his special instance and request, on his farm in Gallatin county (described as “See. 15, Tp. 2 S., R. 2 E.”), hay and grain of the reasonable value of $91, no part of which has been paid. The second alleges that between June 4 and October 2, 1913, the plaintiff furnished the defendant on his said farm, at his special instance and request, work of himself and his horses in preparing the land for a crop for the season of 1914, of the reasonable value of $783, no part of which has been paid.
The defendant in his answer joins issue on both counts, and alleges as an affirmative defense, by way of a counterclaim, the following: That on October 23, 1911, the plaintiff entered into a contract with one Berglund, now deceased, wherein the latter agreed to convey to the plaintiff the farm described in the complaint, upon these conditions: That plaintiff should pay Berglund therefor, at the Manhattan State Bank of Gallatin county, $25,600, $800 upon the execution of the contract, and the balance in ten equal annual installments on or before November 1st of each year, from 1913 to 1922, inclusive, with interest at seven per cent per annum on the sum remaining unpaid from time to time, except that plaintiff should have the privilege of paying only one-half of the interest falling due on November 1, 1912, and the remaining half, without interest, on November 1, 1913; that plaintiff should pay all taxes and legal impositions levied upon the land subsequent to the year 1911; that in case plaintiff should make default in any of the payments or interest thereon as stipulated in the contract, or fail to perform any obligation assumed by him therein, the whole of the purchase price, with the interest thereon, should, at the election of Berglund, become at once due and payable, and the contract be forfeited and determined upon his giving the plaintiff thirty days’ notice in writing of the amount' due ^and of his intention to cancel and determine the contract,- that plaintiff should thereupon forfeit all payments made up to that time, as well as all improvements upon the land, and Berglund should have the right to re-enter and take possession; that time of payment should be an essential part of the contract, and that all the covenants and agreements contained in it should extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties; that on May 15, 1913, the defendant became the owner and holder of the contract; that plaintiff had failed to pay any interest upon the purchase price as provided therein; that on June 3, 1913, there was due defendant interest at the rate of seven per cent on $24,800 from October 23, 1911, amounting to $2,786.75; that plaintiff had also failed to pay the taxes for the year 1912, amounting to $68.41, which defendant had paid; that on June 3, 1913, after negotiations between plaintiff and defendant relating to the payment by plaintiff of the interest due and the taxes paid by defendant, it was agreed between them that plaintiff should continue in possession of the land until the fall of that year; that he should plow and prepare the land for a crop for the year 1914; that he should use his horses, furnishing for their maintenance the hay and grain referred to in the complaint; that defendant should furnish other horses and men necessary to aid in doing the work, and food for the maintenance of the men and horses; that plaintiff should .have the right until fail to sell the land or to raise money sufficient to pay tbe past-due interest and taxes paid by tbe defendant, and also to reimburse defendant for the use of the other horses, for the wages of the men, and the value of the food furnished by him; that if he failed to do this he should surrender the land to the defendant, who thereupon would release the plaintiff from the contract of purchase, so that neither party thereafter should have any claim thereunder against the other; that, in pursuance of this agreement, plaintiff remained in possession of the land, and prepared it for a crop, furnishing his horses, harness and such implements as he had, and also the hay and grain referred to in the complaint, the defendant furnishing the additional men and horses necessary to do the work, together with food for the men and the horses other than that furnished by plaintiff; that on October 4, the plaintiff having failed to sell the land and to pay the interest and the taxes paid by the defendant, and to reimburse the defendant for the horses and men and the food furnished by him, defendant gave him notice in writing, as provided in the contract of sale, that the contract was terminated, and demanded that at the end of thirty days from that date plaintiff should surrender to him the possession of the land; that the plaintiff failed and refused to surrender possession or to comply with said notice; that on January 24, 1914, this defendant brought an action against the plaintiff in the district court of Gallatin county to recover possession of the land and for damages for its detention; that such proceedings were had therein that on February 16, 1914, a decree was entered therein in favor of the defendant, the defendant by stipulation waiving all damages against the plaintiff; that the plaintiff thereupon delivered possession of the land to the defendant; that plaintiff has never paid the interest which accrued on the purchase price under the contract of sale, nor the taxes paid by defendant, and that there is due from the plaintiff in this behalf the sum of $3,080.36, after allowing the plaintiff the full amount claimed by him in the complaint. Judgment is demanded for this amount.
To this counterclaim a general demurrer was interposed by the plaintiff, which was overruled. In his reply plaintiff admits that he had entered into the contract with Berglund as alleged, that' the defendant thereafter became the owner of it, and that on June 3 the plaintiff was in default in the payment of interest as therein provided. He denies that he remained in possession of the land under the agreement alleged by the defendant; and alleges that on the said date he surrendered possession to the defendant, who thereafter remained in possession; that on and after said date he furnished to the defendant the hay and grain and the work and labor of himself and horses as alleged in the complaint, and that he prepared the land for a crop under the direction of defendant. He admits that the action was brought as alleged by defendant, and that it resulted in a decree in defendant’s favor. He denies generally all the other allegations in the counterclaim not specifically admitted.
Counsel assails the validity of the judgment on the grounds that the trial court erred to the prejudice of the defendant in certain rulings upon questions of evidence during the trial, in submitting instructions to the jury, and denying defendant a new trial because of the insufficiency of the evidence to justify the verdict.
Upon a careful consideration of the several rulings upon questions of evidence we have found no prejudicial error in any of them. Ye therefore pass them without special notice.
In paragraph 2 of its charge the court instructed the jury as follows: “You are instructed that the defendant set up a counterclaim in this action for unpaid interest due under the contract between plaintiff and Peter A. Berglund, dated October 23, 1911, for the sale to the plaintiff of section 15, township 2 south of range 2 east. The defendant admits the execution of this contract, and that on the fifteenth day of May, 1913, the defendant, F. L. Benepe, became the owner and holder of said contract, and that he was on said date, and ever since has been, the owner of all the right, title, and interest in and to the real estate described in said contract, being section 15, in township 2 south of range 2 east. The plaintiff further admits that he failed, neglected and' refused to pay any interest on the purchase price for the land as provided in said contract, and that on the third day of June, 1913, there was due to the defendant from the plaintiff, Ike De Young, interest at the rate of seven per cent per annum on $24,800 from the twenty-third day of October, 1911, and that such interest amounted at that time to $2,786.75, and that plaintiff failed to pay the taxes levied on said land for the year 1912. Under these admissions it becomes incumbent on the plaintiff to prove, by a preponderance of the evidence, that he has paid, satisfied and discharged the amount of said interest, as provided in said contract, and unless the plaintiff has proved by a preponderance of the evidence that since the third day of June, 1913, he has paid to the defendant in this action the said sum of $2,786.75, and interest on said $24,800 at the rate of seven per cent per annum from June 3, 1913, to February 16, 1914, then your verdict must be for the defendant in this action for the full amount of said interest claimed by him. The defendant also sets up that he paid the county and state taxes for the year 1912, levied upon section 15, township 2 S. E. 2 E., amounting to $68.41, and that the plaintiff has not repaid the said sum. ' The burden of proving the payment of these taxes is upon the defendant. If the defendant has proved by a preponderance of the evidence that he paid said taxes, then he is entitled to recover the sum from the plaintiff in this action, unless the plaintiff has proved by a preponderance of the evidence to your satisfaction that he has repaid the same to the defendant; but before the defendant is entitled to recover upon his counterclaim he must prove the material allegations by a preponderance of the evidence.”
It being admitted in the reply that plaintiff was in default in the payment of interest, and it being shown by defendant’s evidence without dispute that he had paid the taxes for the year 1912, counsel insists that this instruction was in effect a peremptory direction to the jury to find for the defendant, and that, since the jury manifestly disregarded it, the defendant is entitled to a new trial without regard to whether it is correct in point of law, on the ground that the verdict is contrary to law. In view of the admissions and the undisputed evidence referred to by counsel, the verdict is clearly contrary to the instruction, and is therefore contrary to law. This court has frequently held that, when the record discloses that the jury has disregarded a specific instruction, it will not inquire whether the instruction is correct, but will direct a- new trial on this ground. (Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057, 43 Pac. 714; King v. Lincoln, 26 Mont. 157, 66 Pac. 836; Allen v. Bear Creek C. Co., 43 Mont. 269, 115 Pac. 673.)
Counsel for plaintiff, to avoid the consequences of the rule announced in these decisions, has incorporated in the statement of the case his exceptions to the order of the district court overruling his demurrer to defendant’s counterclaim, and an order denying his motion for a nonsuit thereon at the close of defendant’s evidence, and invokes the provisions of section 7118 of the Revised Codes, which declare: “Whenever the record on appeal shall contain a bill of exceptions or statement of the case properly settled, setting forth any order, ruling or proceeding of the trial court against the respondent affecting his substantial rights on the appeal of said cause, together with the objection and exception of such respondent properly made and reserved, settled and allowed in such bill of exceptions, or statement, the supreme court on such appeal shall consider such orders, rulings or proceedings, and the objections and exceptions thereto, and shall reverse or affirm the cause on said appeal according to the substantial rights of the respective parties, as shown upon the record. And no cause shall be reversed upon appeal by reason of any error committed by the trial court against the appellant where the record shows that the same result would have been attained had such trial court not committed an error or errors against the respondent.”
These two orders were clearly erroneous. It is manifest that, when the defendant had exercised his option to terminate the Berglund • contract as therein provided, it was at an end for all purposes as a binding obligation upon either party, and could not thereafter be made the basis of an action. The result was that the defendant was released from his obligation to make a conveyance of the land, and the plaintiff from his obligation to pay the purchase price, including the interest, and also the taxes for the year 1912. Thereafter the defendant could not be heard to assert that the plaintiff was bound to answer to him for a breach of the contract. He could not oust the plaintiff from the land, as he did, and then claim that plaintiff was indebted to him in any amount. The court should have sustained the demurrer, and thus eliminated the counterclaim entirely. Therefore, notwithstanding the decisions citing supra, the plaintiff would have been entitled to have the judgment affirmed under the statute, if the evidence was sufficient to justify the verdict. The statute was enacted for the express purpose of enabling this court to avoid reversing judgments and ordering new trials in cases in which the jury has reached a correct conclusion notwithstanding errors committed by the trial court. .
When we come to examine the evidence, however, we are constrained to the conclusion that it is not sufficient to justify the verdict. Plaintiff was the principal witness in his own behalf. His testimony is vague and indefinite. On his examination in chief he testified, in substance: That he had retained possession of the land purchased under the Berglund contract from the date of the contract until June 3, 1913; that on that date he turned the land over to the defendant; that thereafter he worked for defendant and under his directions; that he used all his horses in the work; that he, along with other men hired by defendant to assist him in preparing the land for a crop for the following year, fed the hay and grain referred to in the complaint, and when that was exhausted they bought more to feed his and other horses furnished by the defendant; that defendant told him to feed this and then buy more; that this was done for defendant because he |iad nothing to do with the land after June 3. Questioned as to who requested him to work there after June 3, he said: “Mr. Benepe asked me if I would work there because the wheat was not sowed as yet; and the worms had eaten out the wheat that was sowed except 100 acres of wheat, which was good yet; and I turned it over to Mr. Benepe. He asked me .if I would stay there and work if he fed horses and I work for him.” He was then questioned at length as to the prevailing rate of wages for men, the rate per <Mem at which horses could be hired in that locality, the number of horses he had, and the number of days he was employed with his horses. On cross-examination he stated: “When Mr. Benepe came out there he asked me what the matter was — what was the reason that I wanted him to come out — and I told him that I didn’t have any money to farm the place any more, and the worms had eaten part of the crop, and that I couldn’t make the payments in the fall and I didn’t know what to do. Then he asked me if I would stay there and work for him. He asked me, if he would take the place, if I would stay there and work for him, and I told him that I could. Then he asked me how much I wanted, and I told him I had $1,200 in the place when I started, and if I could get that out I would stay there and work for him — that is, if I could get the $1,200 back out of it. I told him if I could get the $1,200 back that I had put in that I would stay there and work until the land was clean again. When I got the land, part of it was prairie, and I broke 240 acres, and the rest of the land was in crop by another party when I got it. When I told him that I wanted my $1,200 back, and I would stay there until the land was clean, he asked me, just before he left, if he paid me the $1,200 if I would return the contract I had with Mr. Berglund, and I told him I would. At this time he was sitting on a log out there beside the cabin. Then he talked about how he wanted to send men out and all that kind of stuff. * * * Q. Was the arrangement with Mr. Benepe that you were not to deliver possession to him unless you got the pay? A. I don’t understand that right.” The question being repeated, he answered: “Yes, he asked me if I would — if he would pay me if I would return the contract, and I said, ‘Yes.’ The arrangement was I was to leave the land if he would pay me for this work; if he would pay me the $1,200 that we talked about that I had in it; if he would pay me that the arrangement was I would leave the land and return the contract. The $1,200 was not for this work, but it was the money that I had put in the land. That was the arrangement that I had on the 3d of June. I told you that the reason that I didn’t leave the land in the fall of 1913 was that I hadn’t received any pay — I didn’t get my $1,200. * * * Q. Now, was there anything said in this conversation that you said you had with Mr. Benepe on the 3d of June, 1913, about any price that was to be paid to you for your teams or your labor? A. No; I told him if I had $1,200 out of that I would be satisfied and would stay there until fall. Q. Then you say now, Mr. De Young, that the arrangement that Mr. Benepe was to pay you $1,200 was to include your labor and the teams and everything, and you were to get off by fall. Was that it? A. Yes, sir. Q. That was the arrangement? A. Yes, sir.”
Peter Yan Dyken, the only other witness who testified for plaintiff, after being questioned as to the prevailing rate of wages for men and the rate paid for horse hire, stated that he had a conversation with defendant about July 13, when the witness was employed by him to assist the plaintiff, during which, in answer to an inquiry by witness if the plaintiff “had thrown up the place,” the defendant said he had. Nowhere in the evidence does it appear that plaintiff then or thereafter surrendered the Berglund contract to defendant, or that he ever offered to do so, or that he offered to surrender possession of the land.
This testimony was not aided in any way by that of the defendant. On the contrary, the testimony of the defendant controverted that of the plaintiff and his witnesses, and tended to establish the agreement set out in the counterclaim.
Plaintiff brought his action in assumpsit instead of on the special agreement, upon the theory that, having fully performed the agreement on his part, he was at liberty to count on the implied assumpsit, the limitation of recovery being the stipulated price. There is no doubt as to the correctness of this theory. The course adopted by counsel has directly or impliedly been recognized as proper by this court in the following eases: Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035; Riddell v. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. 241; Cook & Woldson v. Gallatin R. Co., 28 Mont. 509, 73 Pac. 131; McFarland v. Welch, 48 Mont. 196, 136 Pac. 394; Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736.
That the special agreement was entire is obvious from the fact that the consideration was entire, and that the defendant was not to become indebted to plaintiff until he had done the work, surrendered the contract, and given up possession of the land. To make out his 'Case, therefore, plaintiff was bound to show that he had fully performed the agreement on his part; in other words, that, besides doing the work, he had surrendered the contract, and with it the possession of the land. (Riddell v. Peck-Williamson H. & V. Co. and Waite v. Shoemaker, supra.) Now, the evidence, as pointed out above, fails to show a surrender of the contract. So far as it tends to show anything in this regard, plaintiff retained possession of it and all the rights conferred by it. In addition to this, it is admitted by plaintiff in his reply that he remained in possession of the land until he was ousted by judgment in the action brought by defendant. Therefore the evidence is wholly insufficient to justify the verdict and defendant is entitled to a new trial.
Upon the facts disclosed by the record we do not find any merit in the several other assignments made by counsel.
The cause is remanded to the district court, with directions to grant a new trial.
Beversed and remanded.
Mr. Justice Holloway concurs.
Mr. Justice Pigott did not hear the argument, and takes no part in the foregoing decision.
|
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] |
MR. JUSTICE COOPER
delivered the opinion of the court.
Defendant corporation was found guilty of a misdemeanor by the district court of Silver Bow county for the violation of the provisions of the so-called Trading Stamp Law (Chap. 17, Laws of 1917) and sentenced to pay a fine of $25. It appealed from the judgment.
The cause was tried on an agreed statement of facts substantially the same as that found in the opinion in the case of State v. Lutey Bros., ante, p. 545, 179 Pac. 457. Upon the authority of that case, the judgment herein is reversed and the cause remanded, with directions to the district court to dismiss the complaint.
Reversed and remanded.
Mr, Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On the first Monday of March, 1915, the estate of Thomas Cruse, deceased, owned Montana state bonds, and bonds of Fergus county, Valley county, Yellowstone county and Carbon county, all of the aggregate value of $207,500. These bonds were assessed at their par value, the tax thereon was paid under protest, and this action was instituted to recover the amount paid. The plaintiffs appealed from an adverse judgment, and submit for determination the question: Are state and county bonds held in'private ownership subject to taxation?
In theory, the burden of taxation ought to be borne by everyone in proportion to the value of his property. In practice it is not always so. Prior to the adoption of our state Constitution, there were few restraints upon the legislature with respect to its power to declare what property should and what should not be taxed, with the result that from time to time certain classes of privately owned property were declared exempt. At the time the constitutional convention assembled the list of exempt property was a formidable one. It will be found in section 1668, Fifth Division, Compiled Statutes of 1887. The abuse of power was manifest and the inequality in taxation plainly apparent. To obviate the difficulties confronting the new state, to provide the necessary revenue for public purposes, and to insure equal and exact justice in the matter of taxation so far as it was then deemed possible, the people withdrew from the lawmakers some of the legislative powers theretofore exercised, and in no uncertain terms prescribed limitations upon the authority to relieve property from its just proportion of the burdens of government.
The subject “Revenue and Taxation” is covered by Article XII, of the Constitution. By section 2 of that Article two classes of property, and only two, were deemed proper subjects of relief from taxation. The first comprises public property— that is, the property of the United States, the state, counties, cities, towns, school districts, municipal corporations and public libraries — and with respect to this property the Constitution declares that it shall be exempt. The second class comprises property of a gwffisi-public character — that is, property used exclusively for agricultural and horticultural societies, educational purposes, places of actual religious worship, hospitals and places of burial not used or held for private or corporate profit, and institutions of purely public charity. The legislature is permitted, but not required, to relieve any or all of the property of this class from, taxation, and it has all been declared to be exempt. (Sec. 2499, Rev. Codes.)
There cannot be a difference of opinion concerning the meaning of the language employed in section 2 above. The authority to tax any property of the first class is denied the lawmakers absolutely. The provision is mandatory in character, is self-executing and the legislation thereafter enacted declaring property of that class exempt added nothing to its force or effectiveness.
When we recall that our Constitution is not a grant of author- ity, but a limitation upon the powers of government— that our legislature exercises inherent and not delegated authority — the reference to the second class becomes equally explicit. While the language is permissive in form, it is prohibitory in effect. The legislature may extend the exemption to the property .enumerated, but it cannot go further or include any other. This is the construction uniformly placed upon such provisions, and is commanded by the rule of interpretation contained in the Constitution itself. (See. 29, Art. III.)
Section 2 thus expresses the entire will of thte people with respect to the property absolutely exempt and the extent of legislative power to create exemptions. Section 2499, Revised Codes, is therefore to be construed strictly; that is to say, nothing is to be implied, for the legislation is as broad in its terms as the limitation permits, and in its enactment the lawmakers exhausted their power to relieve property from taxation. All other property within the state is liable to taxation. (Sec. 2498, Rev. Codes.)
As early as 1877 this court declared that taxation is the rule and exemption the exception (Hope Min. Co. v. Kennon, 3 Mont. 35), and the principle is given .added emphasis by the provisions of the Constitution and statutes above (Northern Pac. Ry. Co. v. Mjelde, 48 Mont. 287, 137 Pac. 386).
In order to escape the tax which has been levied upon these bonds, appellants must assume the burden of showing (1) that the state cannot tax its public securities when held in private ownership within the state, or (2) that such bonds are not property within the meaning of that term as employed in Article XII of the Constitution and the revenue laws of the state, or (3) that these bonds belong to one or the other of the two classes of property exempt from taxation.
(1) No court has ever ventured to assert that the state cannot tax such public securities. The power of taxation rests in necessity, is inherent in, and is one of the highest attributes of sovereignty, vital to the very existence of government, and unless restrained by the Constitution of the United States, the authority of the state to subject to taxation all subjects over which the sovereignty extends cannot be questioned. (Railroad Co. v. Pennsylvania, 15 Wall. 300, 21 L. Ed. 179.) In McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, the supreme court of the United States, speaking through Chief Justice Marshall said: “If we measure the power of taxation residing in a state by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a state unimpaired; which leaves to a state the command of all its resources. ”
■ In Murray v. Charleston, 96 U. S. 432, 24 L. Ed. 760, it is said: “Is, then, property, which consists in the promise of a state, or of a municipality of a state, beyond the reach of taxation? We dto not affirm that it is. A state may undoubtedly tax any of its creditors within its jurisdiction for the debt due to him, and regulate the amount of the tax by the rate of interest the debt bears, if its promise be left unchanged. A tax thus laid impairs no obligation assumed. It leaves the contract untouched.”
There is n'ot any provision in the Constitution of the United' States which inhibits a state from taxing its public securities held in private ownership within the state, so long as the statutory method of enforcing the tax does not impair the obligation of the contract between the state and its bondholders. Our conclusion is that the authority to tax these bonds is inherent in the state.
(2) Has the state assumed to exercise its taxing authority with respect to public securities? The answer must be that it has, if these bonds are property within the meaning of that term as it is employed in the Constitution and laws.
Are the bonds property? At the time our Constitution was written it had been judicially determined in two states of the Union that the term “property,” employed in their Constitutions and tax laws, did not comprehend municipal bonds or like public securities held in private ownership, and that such securities were not subject to taxation. In other states the contrary conclusion had been reached, and state bonds had been held to be liable to taxation; while in still other states public securities had been declared to be exempt from .taxation by express constitutional or legislative mandate. With this history available to the members of our constitutional convention, and doubtless in their contemplation, they nevertheless included in section 17, Article XII, this significant provision: “The word ‘property,’ as used in this Article, is hereby declared to include moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership.” We imagine that it would defy the ingenuity of the most profound lexicographer to formulate a more comprehensive definition, and, as if to make assurance doubly sure, the legislature adopted the same definition. (See. 2501, Rev. Codes.)
We are not confronted, as were the courts of Louisiana and Georgia, by a contemporaneous construction of the language of our Constitution contrary to the fair import of the language itself. The definition of “property” in section 17 above seems to leave no room for the application of the canons of construction. It is a rule which has been in force in this jurisdiction for more than thirty-five years, that, whenever the language of a statute is plain, simple, direct and unambiguous, it does not require construction, but it construes itself. In other words, it is immaterial what may have been the legislative thought, if no ambiguity exists in what the lawmakers said, and the language of the statute plainly expresses an intent, the letter of the law will not be disregarded under the pretext of pursuing its spirit. (King v. National M. & E. Co., 4 Mont. 1, 1 Pac. 727; Osterholm v. Boston & Mont. Co., 40 Mont. 508, 107 Pac. 499.) The same rule is applied in the interpretation of a provision of the Constitution. (Dunn v. Great Falls, 13 Mont. 58, 31 Pac. 1017.) The bald declaration of our Constitution that the term “property” includes bonds should suffice; but the co-ordination of the word “bonds” with moneys, credits and stocks indicates a determination to subject to taxation every species of bonds held in private ownership within this state possessing any monetary value.
It may be true — and doubtless is true — that by imposing a tax upon its public securities this state places itself at a disadvantage when it goes upon the money market to sell its bonds in competition with other states whose public securities are exempt; but, so long as the power to tax resides in the state, no one can deny its right to exercise the power. These bonds would doubtless sell to better advantage if freed from the burden of taxation; but the same thing is equally true of the public lands owned by the state, and no one would suggest that these lands, when sold to private parties, are not “property” within the meaning of that term as used in the Constitution and statutes. (Courtney v. Missoula County, 21 Mont. 591, 55 Pac. 359.)
In Georgia it is held that such general expressions as “taxable property” or “all property” do not include state, county or municipal bonds. (Augusta v. Dunbar, 50 Ga. 387; Miller v. Wilson, 60 Ga. 505; Macon v. Jones, 67 Ga. 489; Penick v. Foster, 129 Ga. 217, 12 Ann. Cas. 346, 12 L. R. A. (n. s.) 1159, 58 S. E. 773.) The same conclusion was reached by a divided court in Louisiana. (Da Ponte v. Board of Assessors, 35 La. Ann. 651.) The soundness of this conclusion was thereafter questioned, but the decision was followed upon the ground that it had become a rule of property. (State ex rel. Improvement Co. v. Board of Assessors, 111 La. Ann. 982, 36 South. 91, opin ion on rehearing.) By the overwhelming weight of authority, public securities fall within the meaning of the term “property,” and, when privately owned, are subject to taxation unless specifically exempt. (Hall v. Middlesex County, 10 Allen (Mass.), 100; Bank v. Smith, 7 Ohio St. 42; People v. Insurance Co., 29 Cal. 534; Commonwealth v. Maury, 82 Va. 883, 1 S. E. 185; People v. Commissioners of Taxes, 76 N. Y. 64, 77; Bank v. Wilkes-Barre, 148 Pa. 601, 24 Atl. 111; Bank v. Russellville, 133 Ky. 637, 134 Am. St. Rep. 479, 19 Ann. Cas. 410, 118 S. W. 921; Jenkins v. Charleston, 5 S. C. 393, 22 Am. Rep. 14, reversed on other grounds, 96 U. S. 449, 24 L. Ed. 760; Baltimore v. State, 105 Md. 1, 65 Atl. 369; State v. Woodruff, 37 N. J. L. 139; Bank v. Memphis, 116 Tenn. 641, 94 S. W. 606.)
No reason is advanced sufficiently cogent to require 'that the constitutional definition of “property” should be so restricted as to exclude public securities privately owned, and we hold that these bonds are property and subject to taxation unless they are exempt.
(3) Do these bonds belong to either class of property exempt from taxation ?
The taxing power of the state is never presumed to be relin quished unless the intention to relinquish is expressed in clear and unambiguous terms. (Philadelphia etc. R. R. Co. v. Maryland, 10 How. 376, 13 L. Ed. 461; Cooley on Taxation, p. 146.)
Every claim for exemption from taxation should be denied unless the exemption is granted so clearly as to leave no room for any fair doubt. (4 Dillon on Municipal Corporations, 5th ed., sec. 1401.)
It is not contended — and could not be — that these bonds fall within the second class, and they do not fall within the first class, unless it can be said in some sense that they are the property of the state or of the respective counties. These bonds are the evidence of debts due from the state or county, as the case may be, to the holder of the bonds. The public is the debtor and the holder of the securities is the creditor. Can it be said in any sense that tbe state bonds owned by the Cruse estate are property of the state of Montana, or that the county bonds are property of the respective counties? We content ourselves by answering in the language of the supreme court of the United States: “But debts owing by corporations, like debts owing by individuals, are not property of the debtors in any sense; they are obligations of the debtors, and only possess value in the hands of the creditors. With them they are property, and in their hands.they may be taxed. To call debts property of the debtors is simply to misuse terms. * * * This principle might be stated in many different ways, and supported by citations from numerous adjudications; but no number of authorities, and no forms of expression, could add anything to its obvious truth, which is vrecognized upon its simple statement.” (Railroad Co. v. Pennsylvania, above.)
Our conclusion is that these bonds do not fall within either class of property specifically exempt from taxation.
We are not unmindful of the fact that authorities may be found which hold that, notwithstanding the plain letter of the law, there is a presumption in favor of the exemption of ■public securities from taxation based upon the theory that public policy requires it; but, in view of the history of our tax legislation before and since the adoption of the Constitution, that doctrine cannot prevail in this jurisdiction. We determine the public policy of this state by reference to the enactments of the lawmaking power, and, in the absence of them, to the decisions of the courts (Parchen v. Chessman, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631), and these authorities are consistently opposed to the theory of implied exemption. No valid reason is suggested why it should prevail here. The owner of state, county or municipal bonds receives the same protection as the owner of real estate, livestock, money or commercial paper. One man invests his capital in state bonds as a source of income and profit. Another, impelled by the same motive, invests in the bonds of a private corporation. Both investments are taxed as property, and the consequence is that the rate of profit is diminished in each instance. This is the effect, but it is not the object, of tax legislation. Its purpose is, not interference with the rights of borrowers or lenders, but to raise the necessary revenue for the support of the government and the consequent security of the people in the possession of their property.
Our Bill of Bights guarantees to everyone the protection of his property, but this protection carries with it the corresponding obligation to support the government which affords the protection. An exemption from taxation is a release from this obligation, and anyone who seeks the immunity must show that his property belongs to a class which is specifically exempt. (Kalispell v. School District No. 5, 45 Mont. 221, 122 Pac. 742.)
It may be that in certain sections of this state the total tax exacted equals or exceeds the entire income from public securities; but courts can neither make nor unmake laws, much less hold for naught the express declarations of the Constitution. As has been pertinently remarked': “There is nothing very poetic about tax laws. Wherever they find property, except what is devoted to public and charitable uses, they claim a contribution for its protection, without any special respect to the owner or his occupation, and without reflecting much on questions of generosity or courtesy.” (Finley v. Philadelphia, 32 Pa. St. 381.)
These bonds are liable to taxation. The judgment is affirmed.
Affirmed.
Mr. Chief Justice Brantly concurs.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In a-suit to foreclose a mortgage pending in the district court of Rosebud county, wherein the Northwestern Trust Company, mortgagee, was plaintiff, and the Carterville Irrigated Land Company, mortgagor, and the First National Bank of Forsyth were defendants, Donald Campbell was appointed receiver of the property in controversy. Thereafter on August 3, 1916, a decree by consent was rendered and entered, which, among other things, provided that the receivership should be continued; that the land company, should convey the mortgaged property to the receiver; that the receiver should sell the property or so much thereof as should be necessary to realize a sum sufficient to pay all costs and expenses and satisfy the mortgage indebtedness; and that the residue, if any, should be reconveyed to the land company. The decree fixed the minimum price for which each legal subdivision could be sold, and authorized the receiver to accept cash for one-third of the sale price and promissory notes payable to the trust company and secured by mortgage on the property sold, for the remaining two-thirds. For the purposes of his trust the receiver was authorized to treat such notes as cash and credit the receipts from the sales upon the indebtedness after deducting the expense. The decree prescribes the manner of conducting the sales and enumerates certain terms which should be contained in any mortgage securing deferred payments.
On September 3, 1917, the receiver entered into a contract with the Interior Securities Company, by 'the terms of which he agreed to sell to that company all the land then held by him (excepting 1,146 acres) for the sum of $180,000 (in round numbers), one-third payable in cash and the remainder to be represented by the securities company’s note payable to the trust company and secured by a mortgage upon the property sold. Thereafter the receiver declined to carry the agreement into effect, unless and until the same was approved by the court,' and this action was instituted to enforce specific performance, and, as ancillary relief, to secure an injunction pendente lite restraining the receiver from selling these lands to any other person. The trust company and land company were joined with the receiver as defendants, and all answered. The land company made common cause with the plaintiff, while the receiver and the trust company interposed substantially the same defenses. After a hearing, the injunction was denied, and a trial upon the merits resulted in a judgment dismissing the ■ complaint of the plaintiff and the cross-complaint of the land company. Plaintiff and the land company each appealed from the judgment and from the order overruling its motion for a new trial. These appeals have been consolidated. Upon application of the appellants this court issued an injunction pending the determination of the appeals.
This cause was tried to the lower court upon the theory that an independent action may be maintained to compel a receiver to specifically perform a contract entered into by him, and we shall determine the appeals upon the same theory without, however, expressing any opinion as to its correctness.
1. In view of the allegations contained in plaintiff’s complaint, it would seem that it is estopped to say that Mr. Campbell was not receiver; but whether he was technically a receiver, a trustee, or a master in chancery, is of little consequence in our view of the case. For convenience only he will be designated “receiver.” He was not merely the agent of the parties to the foreclosure suit, but was an officer of the court. When he took possession of the property, it thereby passed into the custody of the law. His authority was limited by the terms of the decree, and plaintiff, contracting with him, did so at its peril.
The fact that (the decree was entered by consent did not change the status of this officer from what it would have been had the decree been entered after contest, for a decree by consent has all the force and effect of a judgment in invitum (Harding v. Harding, 198 U. S. 317, 49 L. Ed. 1066, 25 Sup. Ct. Rep. 679; 15 R. C. L. 645; 23 Cye. 729), with the additional characteristic that it is nonappealable (Corby v. Abbott, 28 Mont. 523, 73 Pac. 120).
2. If this contract had been fully executed, the resulting transaction would have constituted a judicial sale. A sale made pursuant to a decree of court in an action to foreclose a mortgage instituted under section 6861, Revised Codes, is a “judicial sale.” (Black v. Caldwell (C. C.), 83 Fed. 880.) We agree with appellants that under our statute such sale, if made, would not have required confirmation by the court in order to pass title to the purchaser. Mr. Campbell was the officer designated by the court to carry its decree into effect, and the decree itself was the authority by virtue of which the property was to be sold. (Thomas v. Thomas, 44 Mont. 102, Ann. Cas. 1913B, 616, 119 Pac. 283.)
But granting that the court’s approval of the contract was not necessary to authorize the sale and that confirmation of the sale, if made, would not have been necessary to pass title, still it does not follow that appellants are entitled to a decree awarding specific performance. They cannot insist that this contract should be enforced if as a matter of fact the receiver exceeded his authority in entering into it, and that he did exceed his authority is manifest.
The decree directs the receiver to sell the property and by necessary implication authorizes him to make proper conveyance. By the terms of the contract he agreed to convey the property by warranty deed, and, to the end that he might be able to do so, he agreed further to perfect the title to any lot, piece or parcel of land the title to which was defective. We need only refer to the character of a judicial sale to determine that the receiver was without authority to convey by warranty deed or to contract to do so. “A judicial sale is one which is made by a court of competent jurisdiction, in a pending suit, through its authorized agent.” (4 Words and Phrases,' 3867.) In every such sale the court itself is the vendor (Hess v. Deppen, 125 Ky. 424, 15 Ann. Cas. 670, 101 S. W. 362), and the officer executing the power, by whatever name designated, is a ministerial agent (16 R. C. L. 6). The rule of caveat emptor applies in its utmost vigor. The court undertakes to sell, and can only sell, the right, title and interest of the parties to the action, and the purchaser is charged with knowledge of this fact. He steps into the shoes of the parties, stands in their places, acquires their interest as it existed in their hands, subject to all the infirmities of title then attaching to the estate, and to all equities which operated as a limitation upon the apparent estate which they had. (16 R. C. L. 119-138.) In view of this rule, it is apparent from the terms of the decree that the receiver was not authorized to warrant the title to the property sold, or to waste the funds of the estate in his hands in an effort to perfect the title.
There are other respects in which we think the receiver exceeded his authority, but these need not be considered further.
Whether, upon the showing made, the court would have been justified in reforming the contract and decreeing its performance, is a question not presented to the trial court nor here. The court below was not.requested to reform the contract, but to enforce it as written.
3. This case is somewhat anomalous, in that the contract is attacked on the ground that the receiver agreed to sell these lands at a price greatly in excess of the minimum fixed by the decree and greatly in excess of their fair market value. At the time the contract was entered into, there was due from the land company to the trust company $140,000, and this indebted ness was secured by the mortgage upon all the real estate in the hands of the receiver — 5,326 acres — and by a pledge of $40,000 worth of personal property belonging to P. J. Lyons. The 1,146 acres of land held by the receiver but not included in the contract are of the value of approximately $100,000. In view of the fact that the compensation of the receiver had not been fixed by the court and that the exact amount of other expenses could not be determined in advance, we must assume for present purposes that the receiver did not undertake to sell more land than necessary to raise a sum sufficient to pay the costs and expenses and discharge the mortgage indebtedness. If this contemplated' sale, then, had materialized, the receiver, acting pursuant to the provisions of the decree, would have credited the original mortgage indebtedness with the amount of the securities company’s note ($120,000) and $20,000 of the cash payment, thereby satisfying and discharging that indebtedness in full. The remainder of the $60,000 would have been applied in satisfaction of the costs and expenses of the receivership and trusteeship, and the costs and expenses of the foreclosure suit. The 1,146 acres would have been reconveyed to the land company, and the Lyons pledge would have been released. The trust company would have received the $20,000 in cash and the securities company’s note for $120,000, secured by the mortgage on the 4,180 acres described in the contract.
In his answer the receiver sets forth that he entered into this contract inadvertently and without due appreciation of the results to flow from its execution. He alleges that the land described in the contract is worth not to exceed two-thirds of the sale price mentioned, and offers to execute the contract provided the sale price is reduced one-third, or provided other lands in his possession, sufficient to raise the valuation to the contract price, are included. The trust company makes the same charge of overvaluation, alleges that the receiver exceeded his authority in many particulars, which are enumerated, and alleges further that the securities company was organized for the express purpose of procuring this contract; that it is not financially responsible;.find that the securities company, the land company, and Lyons entered into a conspiracy to cheat and defraud the trust company and secured this contract as the means through which to carry their conspiracy into effect; that it was the intention of the securities company to default in payment of the principal and interest on the note for $120,000 and in the payment of taxes against the land; and that the land itself is not of sufficient value to secure the payment of the note. The trust company contends in effect that, if this .sale is consummated, it will be called upon to surrender its original claim for $140,000 secured by property worth $260,000, and to accept in lieu thereof $20,000 in cash and a note for $120,000 secured by mortgage upon lands worth less than the face of the note, without recourse except to foreclose, obtain a worthless deficiency judgment and suffer substantial loss, whereas by the expenditure of the $60,000 the land company and Lyons will have turned back to them property of the value of $140,000 free from encumbrance. From the record before it, the trial court might fairly infer that this contention is well founded and that the' contract is not reasonable, equitable and fair.
There are some facts and circumstances disclosed by this record which reflect upon appellants’ good faith, but it is not necessary that the alleged conspiracy be proved in order that the trial court’s conclusions be justified. The court was not merely permitted, but was required, to look beyond the receiver (the nominal party to the contract), to the trust company and land company (the real parties in interest), and refuse specific performance of the contract if its terms, as to either of them, are not just and reasonable (sec. 6103, Rev. Codes), or if the performance would operate more harshly upon either of them than its refusal would upon the plaintiff who seeks performance (see. 6105, Rev. Codes), and it is immaterial that appellants may have acted in good faith. The authority of a court of equity over its own process to prevent abuse by its officer is inherent and as extensive and efficient as the exigencies of the case require; and, if the receiver in entering into this contract acted improvidently or inadvertently to the prejudice of the trust company, the court was justified in withholding its approval (In re First Trust & Sewings Bank, 45 Mont. 89, Ann. Cas. 1913C, 1327, 122 Pac. 561).
We think the evidence is sufficient to justify the court’s conclusion. Appellants were required to sustain the burden of proof and to show that the contract was just and fair in all respects. There is a conflict in the evidence as to whether the property described in the contract is sufficient security for the debt. This conflict was resolved by the court in favor of the trust company and the receiver, and with this finding we do not feel inclined to interfere. The appellants have not acquired any fixed right to have this sale completed, and under the circumstances it appears more' equitable that they should lose their bargain, than that the trust company should be made to suffer loss through compelling the receiver to execute the contract. Finally, appellants must assume the burden of showing that by its decision the trial court committed error to their prejudice.
A decree for specific performance is not granted as a matter of abstract right, but in every instance the application for such relief is addressed to the sound, legal discretion of the court. (Wolf v. Great Falls W. P. & T. Co., 15 Mont. 49, 38 Pac. 115.) To secure the desired relief in this instance, appellants were required to come into court with clean hands and with a cause whose ethical qualities were such as to commend it to the conscience of the chancellor. The case comes within the general rule, often adverted to by this court, that in the absence of a clear showing of abuse of discretion the decision of the lower court will be affirmed.
The judgment and order in each instance are affirmed, and the injunction heretofore granted by this court is dissolved.
Affirmed.
Mr. Chief Justice Brantly concurs.
|
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
The defendants, W. F. and Lila Shannon, are husband and wife. The husband owns and conducts a public inn or hotel at Glasgow, in Valley county, known as the Shannon Hotel, the wife giving her assistance by acting as housekeeper and exercising a general supervision over the guests and their entertainment, her husband giving her authority to do so. On the evening of November 10, 1913, the plaintiff was a guest of the hotel, intending to spend the night there. She and her husband, Roy Jones, were assigned to a room and were occupying and using it. After narrating the foregoing facts, the complaint charges:
“IV. That said plaintiff, while so occupying the room so assigned her by the said defendants, at about the hour of 1 o’clock in the night of November 10, 1913, retired, and thereafter the said defendant Lila Shannon willfully, wrongfully, forcibly and maliciously entered the said room, so assigned as aforesaid, of this plaintiff, and then and there abused and insulted this plaintiff, applying to her vile and indecent epithets, and charged the said plaintiff with improper and disorderly conduct, and wrongfully, maliciously and without any cause therefor required, demanded and compelled said plaintiff to arise from the bed in said room to which she had retired, and dress, and wrongfully, forcibly, maliciously and without any cause therefor ousted and ejected said plaintiff from said hotel.”
It then alleges that by being ejected from the hotel and thus compelled to find lodging elsewhere late at night, the plaintiff suffered great inconvenience and humiliation, and great mental anguish and bodily pain, to her damage in the sum of $5,000.
The answer,' by direct and argumentative denials, puts in issue every allegation of the complaint, except that the defend ant W. F. Shannon was the owner and proprietor of the Shannon Hotel, and that plaintiff was a guest there at the time alleged.
The trial resulted in a verdict against the defendants jointly for $500 compensatory, and against each of them for $250 exemplary, damages, and judgment was entered accordingly. The defendants have appealed from an order denying them a new trial.
It is contended by counsel that the court erred in denying the motion for a new trial, because the evidence is insufficient to justify a verdict for either compensatory or exemplary damages.
"When a person has been received as a guest at a public house, he is entitled to the exclusive use of the room to wdiich he is assigned, subject to the right of the proprietor, as well as his servants and agents, to have access to it when necessary to the ‘ proper and reasonable discharge of their duties. These entries must be at such times and in such manner as are consistent with the rights of the guest. (De Wolf v. Ford, 193 N. Y. 397, 127 Am. St. Rep. 969, 21 L. R. A. (n. s.) 860, 86 N. E. 527; Lehnen v. Hines, 88 Kan. 58, 42 L. R. A. (n. s.) 830, 127 Pac. 612; 14 R. C. L. 505.) As it is the duty of the proprietor to give reasonable attention to the comfort of his guests, so it is his right as well as his duty to see that a particular guest-does not so conduct himself as to be a source of annoyance and discomfort to the other guests. This implies the duty to require the guest to refrain from annoying or offensive conduct, and, if it becomes necessary to perform this duty, the proprietor may enter the room occupied by such a guest and eject him therefrom and from the house, provided, hoAvever, he uses no more force than is necessary. (Lehnen v. Hines, supra; McHugh v. Schlosser, 159 Pa. 480, 39 Am. St. Rep. 699, 23 L. R. A. 574, 28 Atl. 291; Holden v. Carraher, 195 Mass. 392, 11 Ann. Cas. 724, 81 N. E. 261.) If, therefore, the proprietor himself, or by his servant or agent, trespasses upon the rights of the guest, by forcing an entry into his room and ejecting him therefrom and from the house without just cause, he is liable to the guest for compensatory damages. The recovery may also include exemplary damages, if the ejection is accompanied by circumstances indicating that it was prompted by malice, fraud or a spirit of oppression. (McCarthy v. Niskern, 22 Minn. 90; Malin v. McCutcheon, 33 Tex. Civ. App. 387, 76 S. W. 586; Rev. Codes, sec. 6047.)
As to compensatory damages: At about 6 o’clock on the evening in question, plaintiff, in company with her husband and two lady friends, Mrs. Gaasch and Mrs. Hankins, reached Glasgow by train and went to the Shannon Hotel to spend the night. Plaintiff and her husband were assigned to room 22 on the third floor. The two friends were assigned to room 23, immediately adjoining room 22. Access to room 23 could be had only through room 22 by a connecting doorway; the two rooms being apparently constructed' for use as a suite. After having supper, plaintiff with her two friends left their rooms, and were not in them again until about midnight, when they returned and retired to bed. The door between the rooms was then closed. Roy Jones, the husband of plaintiff, had not up to this time been to the room, and did not then accompany plaintiff, but remained about the lobby until half an hour later, when he also retired. While he was engaged in getting undressed for bed, in response to a rap on the door leading from the hall, he opened it wide enough to ascertain what was wanted. He found the defendant Lila Shannon there, who inquired, “Who’s making all this noise in here?” He answered that no one was making noise that he knew of. What thereafter occurred is related in detail by this witness, the plaintiff, Mrs. Gaasch, and Mrs. Hankins. Their several statements tend to establish these facts: That with a show of anger, accompanied by threats of violence, Mrs. Shannon forced her way, not only into room 22, but also into room 23; that she charged the occupants of both with disturbing herself and guests by loud talk and laughter, and by stamping on the floor; that this was done in a loud and boisterous manner; that when this was denied by Mr. Jones, with the request that she leave the’Toom, she threatened to throw him out of the window; that she persisted in the charge, telling them that they must either behave or leave the house, ?md that finally, when Mr. Jones said to her that if they had to leave the house they would do so, she ordered them to get out and then left; that Mr. Jones then told the plaintiff, who was lying in bed, to get up and dress, and to tell Mrs. G-aaseh and Mrs. Hankins, which she did; that they all dressed and proceeded down to the lobby on their way out; that Mrs. Shannon, who had preceded them to the lobby, demanded payment for their rooms for the night, besides the price of supper for the four the previous evening, and also for breakfast nest morning; that Mr. Jones thereupon paid the price of the supper for the four, but declined to pay more; that she prevented them from reaching the door leading into the street, by standing in their way and threatening to knock Mr. Jones’ head off, and pushing the plaintiff from the door; that she took the hand baggage of all the party and held it until the entire bill was paid, calling in a policeman to assist her in compelling payment; that upon its payment by Mr. Jones they all left the hotel, and after searching for some other hotel or lodging-house where they could find lodging for the rest of the night, and not being able to find one, they went to the house of a friend, where they spent the rest of the night. The testimony of these witnesses tends to show, further, that when they finally secured lodging plaintiff had become ill from nervous shock, and continued in that condition for a week afterward. Before they finally left the hotel, Mr. Jones inquired for the defendant W. F. Shannon, in order-to adjust the controversy with him, but was told by Mrs. Shannon that he was in bed and that she was the landlady. There is no controversy that she had general charge and supervision of the rooms and guests. Her account was in direct conflict with the foregoing in every material particular. She stated that she and her husband, who, she said, were asleep in their room immediately below rooms 22 and 23, were aroused by a noise of lond talk and laughter and stamping on the floor above; that she went up to ascertain the cause of it; that upon going into the rooms, to which she was admitted after rapping at plaintiff’s door, she requested the occupants to refrain from' creating further disturbance, calling their attention to the fact that there were other guests in the house who should not be disturbed. She denied that she threatened any violence to any one, either in the plaintiff’s room or in the lobby. She stated, further, that both while in plaintiff’s room and after the party had reached the lobby she insisted that they should continue to occupy their rooms for the rest of the night, refraining in thé meantime from making noise as they had done, but that they refused to do so. She admitted that she exacted payment of the amount paid by Mr. Jones before she consented that the party might leave the hotel.
This brief synopsis of the evidence is sufficient to show that it presented a substantial conflict, the solution of which was primarily the province of the jury. As we have so often said, the conclusion of the jury in such a case must be accepted as final and conclusive, subject to the rule, however, that it is within the sound legal discretion of the trial judge to grant a new trial on motion of the losing party, if, aided by his recollection of the appearance and conduct of the witnesses in giving their testimony at the trial, he is impelled to the conclusion that the evidence as a whole preponderates against the verdict. (Orr v. Haskell, 2 Mont. 225; Western Min. Supply Co. v. Melzner, 48 Mont. 174, 136 Pac. 44; Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76.) Otherwise the motion should be denied. In no case will the conclusion of the trial judge in disposing of the motion be revised by this court, except for manifest abuse of discretion. The motion for a new trial in this case was determined by a judge other than the one who presided at the trial. In such a case the judge is in no better position to determine the motion than is this court. Our office in this case, therefore, is not to determine whether the judge was guilty of an abuse of discretion in deny ing the motion, bnt whether the evidence as it is presented in the printed record preponderates decisively against the verdict. (Gibson v. Morris State Bank, supra.) Having carefully examined the evidence, keeping in mind the limitations of the rule announced in the case just cited, we are of the opinion that it does not preponderate against the conclusion of the jury that Mrs. Shannon wrongfully ejected plaintiff, and is therefore liable to her for compensatory damages.
As remarked by the judge in determining the motion for a new trial, the order to get out of the room, which also meant to leave the hotel, was addressed by Mrs. Shannon to the plaintiff, as well as to her husband, and operated as a wrongful ejection of her, as well as the husband, though she dressed and accompanied him at his suggestion. Mr. Shannon was not present and knew nothing of what occurred until next morning. Yet it cannot be controverted that Mrs. Shannon sustained toward him the relation of servant or agent, and for present purposes it is immaterial which relation she sustained. Therefore he is liable also. It is elementary that the principal is liable in damages for wrongs done by the agent while in the discharge of the duties intrusted to him by the principal, even though the latter is ignorant of them.
As to exemplary damages: In this character of action the defendant is liable to respond in exemplary damages, when it appears that he has been guilty of malice, actual or presumed, in committing the wrong rendering him liable for compensatory damages. (Rev. Codes, see. 6047.) “The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (Rev. Codes, sec. 8099.) We think that the jury were justified in presuming that the conduct of Mrs. Shannon was actuated by a malicious motive. If the plaintiff and her husband and companions were not creating a disturbance — and we must assume that the jury found that they were not — she had no right to enter their rooms as she did. The order for them to vacate the rooms and leave the hotel at that time of the night must necessarily have been a source of vexation and annoyance. This conduct, coupled with that exhibited by Mrs. Shannon in the lobby in exacting payment for the rooms and breakfast, which under the circumstances she clearly had no right to exact, is sufficient to warrant the presumption that she was prompted by a malicious motive, within the meaning of the statute, supra, and fully justified the jury in awarding exemplary damages as against her. As in an action for malicious prosecution, if the evidence discloses the want of probable cause, the jury may infer malice, so by parity of reasoning the ejection of the plaintiff, appearing to have been without reason or excuse, accompanied by the perpetration of - the further wrongful exaction of payment of an unlawful demand, furnished the basis for the presumption that her conduct throughout was prompted by malice. (Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33; Grorud v. Lossl, 48 Mont. 274, 136 Pac. 1069.)
Counsel contend that, since the evidence discloses that W. F. Shannon was not present and took no part in the trespass upon plaintiff’s rights, and did not thereafter ratify Mrs. Shannon’s acts, her malice was not imputable to him, and therefore the verdict against him for exemplary damages cannot stand. They contend, further, that, since the plaintiff elected to sue the husband and wife jointly, she elected to waive exemplary damages if she could not recover them against both. We think the first contention should be sustained. The courts in some of the states announce the broad doctrine that a principal is liable in exemplary damages for the acts of his agent, however tortious and wrongful, when they are done in the regular course of business-, without regard to whether they were previously authorized or subsequently ratified by the principal. (Rucker v. Smoke, 37 S. C. 377, 34 Am. St. Rep. 758, 16 S. E. 40; Goddard v. Grand Trunk Ry., 57 Me. 202, 2 Am. Rep. 39.) The courts in other states hold to what seems to us the better ■rule: That a principal may not be held accountable for the malignant motives of his agent, unless it appears that he authorized the act on account of which recovery is sought, or that he participated in the commission of it or subsequently ratified it. (Burns v. Campbell, 71 Ala. 271; Becker v. Dupree, 75 Ill. 167; Nightingale v. Scannell, 18 Cal. 315; Lightner Min. Co. v. Lane, 161 Cal. 689, Ann. Cas. 1913C, 1093, 120 Pac. 771.)
It is true that we held in the case of Grorud v. Lossl, 48 Mont. 274, 136 Pac. 1069, that the malicious motives of an officer of a corporation while acting in its behalf are imputable to the corporation. We also held in the case of Burles v. Oregon Short Line Ry. Co., 49 Mont. 129, Ann. Cas. 1916A, 873, 140 Pac. 513, that a corporation is liable in exemplary damages for the willful and malicious acts of one of it's servants. A corporation, however, is an artificial person, and can only act through agents; and if the malignant motives of the agent are not imputable to it, it would necessarily follow that it could not be held liable for the malicious acts of its agents in any case. The corporation cannot, as a natural person, participate in any maliciously wrongful act, and it is not to be supposed that the board of directors — the executive body of the corpo-. ration — would by a formal resolution authorize such an act or by the same method ratify it. In the Grorud Case, the president of a corporation had instituted a baseless criminal prosecution against the plaintiff for the alleged theft of money of the corporation. If the malice of the president could not be imputed to the corporation, it could not have been held liable at all, and the only recourse of the plaintiff would have been against the president. In that case the question of exemplary damages did not arise.
In the ease of Burles v. Oregon Short Line Ry. Co., however, it was distinctly held that, where the act of the servant was prompted by a willful disregard of the rights of the plaintiff, his motive was properly imputable to the company. A natural person can act for himself, and therefore the malignant motive of another should not be imputed to him unless, under the rule of the cases cited above, he directly or indirectly authorized or subsequently ratified the wrongful act. It seems to us that, whatever may be assigned as the foundation for it, a clear, distinction is to be recognized between a corporation and a natural person, when we come to fix responsibility for the acts of their agents.
Now, it is not controverted that Mr. Shannon was not present when the plaintiff was ejected; nor is there any evidence that he knew what Mrs. Shannon’s intention was when she went up to the room of plaintiff. Nor, again, is there any evidence that he ratified her act. The evidence does not go any further than to show that she was authorized to supervise the conduct of the guests of the house, and eject anyone who by his conduct created a disturbance and thus trespassed upon the rights of other guests. True, Mr. Jones testified that on the next morning he informed Mr. Shannon that the party had been ordered out, whereupon the latter stated that Mrs. Shannon had authority for that purpose. This statement, however, falls short of showing that he had knowledge of the attendant circumstances without which there could be no such ratification as would subject him to the imputation of malice. (Weidenaar v. New York L. Ins. Co., 36 Mont. 592, 94 Pac. 1; 1 Am. & Eng. Ency. of Law, 2d ed., 965.) Malice of the agent may not be imputed to the principal merely from the fact that the agent did the wrongful act complained of. (Haines v. Schultz, 50 N. J. L. 481, 14 Atl. 488; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760; State v. Mason, 26 Or. 273, 38 Pac. 130; Krug v. Pitass, 162 N. Y. 154, 76 Am. St. Rep. 317, 56 N. E. 526; Davis v. Hearst, 160 Cal. 143, 116 Pac. 530; Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 37 L. Ed. 97, 13 Sup. Ct. Rep. 261.)
It does not follow, however, that because plaintiff joined the defendants in the one action, she should be held to have waived her right to recover exemplary damages against Mrs. Shannon on the ground that Mr. Shannon is not also liable. Under the instructions of the court, the jury found and assessed exemplary damages against the two defendants separately. Since the evidence justified the finding against both for compensatory damages, and against Mrs. Shannon for exemplai*y damages, we do not think that the verdict should be set aside, except as to the exemplary damages awarded against Mr. Shannon. Though it will be perhaps somewhat difficult to formulate a judgment allowing a recovery against both for compensatory damages and for exemplary damages against Mrs. Shannon only, it is not impracticable to do so. Under our liberal practice there seems to be no reason why the prevailing party may not, in this form of action, have judgment against all the defendants for the amount awarded -jointly against all, and against one for an additional amount awarded separately against him, where the evidence, as in this ease, warrants it. This practice has been approved by courts in other jurisdictions. (Mauk v. Brundage, 68 Ohio St. 89, 62 L. R. A. 477, 67 N. E. 152, Waggoner v. Wyatt, 43 Tex. Civ. App. 75, 94 S. W. 1076; Nelson v. Halvorson, 117 Minn. 255, Ann. Cas. 1913D, 104, 135 N. W. 818.)
It is contended that the court erred in submitting instruction No. 6. This instruction authorized the jury to award exemplary damages against Mrs. Shannon, if they believed that she acted maliciously, and also against W. F. Shannon, if they found that with full knowledge of the facts and circumstances he ratified and approved her acts. There is no merit in this contention.
It is insisted that the court erred in admitting evidence of what occurred in the lobby after the plaintiff and her husband started to leave the hotel. What transpired there was a part of the whole occurrence, which began in plaintiff’s room and ended only when she had finally reached the street. There was no error.
It is earnestly argued that the verdict is so excessive as to indi cate that it was given under the influence of passion and prejudice. This case, however, falls within that class of cases in which the amount to be awarded rests entirely in the discretion of the jury, and their conclusion may not be revised, unless the result of their deliberations is such as to shock the conscience and understanding. It is true that the amount awarded is large; yet we may not overlook the fact that the ejection of plaintiff was wholly without justification, that she was forced to leave the hotel at a late hour of the night, that she was finally compelled to go to the house of a friend because she could not find accommodations at any other hotel, that she suffered the humiliation inseparable from such an occurrence, and that she was made ill by the nervous condition induced by it, which continued throughout the night and the following week. Considering all these facts, we do not feel justified in concluding that the award was the result of passion and prejudice indulged by the jury, rather than of their calm deliberate judgment.
There is no standard of measurement by which to determine the amount of damages to be awarded, other than the intelligence of the jury, made up of impartial men governed by a sense of justice. To the jury, therefore, is committed the exclusive task of examining the facts and circumstances of each case and valuing the injury and awarding compensation in the shape of damages. “The law that confers on them this power, and exacts of them the performance of the solemn trust, favors the presumption that they are actuated by pure motives. It therefore makes every allowance for different dispositions, capacities, views, and even frailties in the examination of heterogeneous matters of fact, where no criterion can be applied; and it is not until the result of the deliberations of the jury appears in a form calculated to shock the understanding, and impress no dubious conviction of their prejudice and passion, that courts have found themselves compelled to interpose.” (1 Graham & "Waterman on New Trials, p. 451.)
We have examined the other contentions made by counsel, but find no merit in them.
As to Mrs. Shannon, the order is affirmed. As to W. F. Shannon, the cause is remanded, with directions to the district court to grant him a new trial unless, within twenty days after the remittitur is filed in tbat court, the plaintiff remit the amount of exemplary damages awarded against him. If such remission is made, the order will stand affirmed as to him also.
Mr. Justice Sanner and Mr. Justice Holloway concur.
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] |
ME. JUSTICE HOLLOWAY
delivered the opinion of the court.
In an action pending in the district court of Fergus county wherein Howard Tobey Weed was plaintiff and Eva Marie Weed was defendant, a decree of divorce was rendered and [1] entered which, among other things, awarded to plaintiff the care, custody and control of the minor child, the issue of the marriage. Later defendant moved the court to modify the decree and award the custody of the child to her, and supported the motion by her affidavit. Plaintiff appeared and moved the court to strike defendant’s affidavit from the files and, his motion being overruled, he attempted to prosecute this appeal from that ruling.
“An appeal is authorized by statute only and unless the judgment or order which it is sought to have reviewed in this mode, falls fairly within the enumeration of appealable orders or judgments made by the statute, the appeal does not lie.” (Tuohy’s Estate, 23 Mont. 305, 58 Pac. 722; Taintor v. St. John, 50 Mont. 358, 146 Pac. 939.)
The appealable judgments and orders (in civil cases) are enumerated in section 7098, Revised Codes. The ruling complained of is not a judgment (sec. 6710, Rev. Codes) and it is not an appealable order, unless it can be classified as a special order made after final judgment. It is not every ruling made by a court in a cause after a final judgment has been entered therein, that is the subject of a separate appeal. If the eon- verse of this were true, there would never be an end to litigation if either party sought to harass or annoy the other. In Chicago, M. & St. P. Ry. Co. v. White, 36 Mont. 437, 93 Pac. 350, this court in construing the statute above, said: “The special order, made after final judgment, from which an appeal lies, must be an order affecting the rights of some party to the action, growing out of the judgment previously entered, It must be an order affecting rights incorporated in the judgment.” The decision has the support of the authorities generally. (Greiss v. State Inv. & Ins. Co., 93 Cal. 411, 28 Pac. 1041; Kaltschmidt v. Weber, 136 Cal. 675, 69 Pac. 497; 3 Corpus Juris, 519.)
The affidavit was tendered as evidence in support of the motion under the provisions of section 7992, Revised Codes. The action of the court complained of did not affect the rights of either party. It was nothing more than an interlocutory ruling upon the admissibility of evidence made in the process of determining whether the decree should be modified, and until the court acted upon defendant’s motion neither party was or could be prejudiced. If the court refused to modify the decree, appellant could not complain that defendant’s affidavit was not stricken from the files. If defendant’s motion should be granted, every ruling made by the court in its consideration of the motion could be reviewed on appeal from the order modifying the decree. (Connell v. Warren, 3 Idaho, 117, 27 Pac. 730.)
The statute does not authorize an appeal from the ruling complained of, and for this reason the attempted appeal is dismissed.
Dismissed.
Mr. Chief Justice Brantey and Mr. Justice Cooper concur.
|
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MR. JUSTICE SANNER
delivered the opinion of the court.
The appellants, foreign insurance corporations doing business in this and other states of the Union, have been held by the judgment below for payments in the form of license fees under Code, section 4017 (as amended by Chapter 63, Laws of 1915) and also under Chapter 79, Laws of 1917. This appeal is from that judgment, the appellants contending (A) that Chapter 79, Laws, of 1917, does not apply to them or to insurance corporations in their situation; (B) that if it does apply, it repeals section 4017, so that they are not liable to payment under both laws; and (C) that if it does apply and does not repeal section 4017, then it is unconstitutional and void.
(A) Chapter 79, Laws of 1917, provides:
“Section 1. Every corporation except as hereinafter provided * * * and engaged in business in the state of Montana, * * * shall annually pay for the exclusive use and benefit of the state of Montana a license fee for carrying on its business in the state of Montana of one per centum upon the total net income received by such corporation in the preceding fiscal year from all sources within the state of Montana, * * * provided, however, that in the case of a corporation engaged in interstate commerce the license fee shall be based upon the net earnings of said corporation derived from its intrastate business in the state of Montana only. There shall not be taxed under this title any income received by any [here follow sixteen exceptions, fifteen embracing corporations of a federal or of a mutual, eleemosynary or other nonprofit earning character, and the sixteenth as follows] corporation engaged in the business of brewing or manufacturing malt liquors or distilling, manufacturing or rectifying spirituous liquors which pay a license under the provisions of sections 2770 and 2771 of the Revised Codes. * * *
“Sec. 2. In the case of a corporation engaged in business wholly within the state of Montana, such net income shall be ascertained by deducting from the gross amount of its income received within the year from all sources — First, all the ordinary and necessary expenses; * * * second, all losses actually sustained and charged off within the year and not compensated by insurance or otherwise; * * * third, the amount of interest paid within the year on its indebtedness; s # * fotlrth, taxes and license fees paid within the year imposed by authority of the United States or its territories or possessions, or any foreign country, or under the authority of this state or any county, school district or municipality or other taxing subdivision of this state, not including those assessed against local benefits; fifth, * * * an arbitrary deduction of * * * $10,000.
“Sec. 3. In the case of a corporation engaged partly in business within the state of Montana and partly within any other state or territory of the United States or any foreign country, the net income shall be ascertained by deducting from the gross amount of its income received within the year from all sources within the state of Montana, other than the income derived from interstate commerce: First, all the ordinary and necessary expenses; * * * second, all losses actually sustained within the year; ° # * third, the amount of interest paid within the year on its indebtedness; * * * fourth, taxes paid within the year imposed by the state of Montana or by any county, school district or municipality or other taxing subdivision of the state of Montana, not including those assessed against local benefits; fifth, * *. * an * * * arbitrary deduction of * * * $10,000. * * *
“Sec. 10. That section 2773 of the Revised Codes * * * and sections 2774 and 2777 of the Revised Codes * * * and all Acts and parts of Acts in conflict with this Act are hereby repealed.”
It will be observed that nothing in the language or subject matter of this statute justifies the view that insurance corporations are to be excluded from its operation, and that they are not to be seems clearer still from what counsel tell us in the history of the Act. They say: “When the legislative assembly met in January, 1917, the executive department found itself confronted, by reason of the growth of the state, with a necessity for a large expenditure which could not be met by taxation in the method prescribed by the Constitution and statutes relating to taxation of property under the taxing power of the state. The subject was referred to by the governor in his message to the legislature. The legislature, after several plans had been introduced in which it was sought to impose the additional burden of taxation upon certain selected corporations or lines of business, appointed a joint committee composed of three from the senate and five from the house, to devise ways and means for meeting the emergency. This committee selected two attorneys to advise it as to the power of the legislature, viz., Mr. H. G. Mclntire by the senate, and Mr. E. C. Day, one of the attorneys on this brief, for the house. Sessions of the committee were held and the subject discussed in all its phases, when the attorneys recommended to the joint committee the adoption of the principle of a license or excise tax as that power of the state and of the United States had been outlined by the supreme court of the United States in the case of Flint v. Stone Tracy Co., 220 U. S. 107, Ann. Cas. 1912B, 1312, 55 L. Ed. 389, 31 Sup. Ct. Rep. 342, which involved the discussion of the corporate franchise tax in the Tariff Act of 1909. The committee accepted the recommendation, and the Act of 1917 was drafted from the Tariff Act of 1909.”
If this be correct, and a comparison shows that the language of the Tariff Act was followed almost verbatim, then the following interpretation placed upon this language in Flint v. Stone Tracy Co., supra, is very helpful: “Within the category of indirect taxation, as we shall have further occasion to show, is embraced a tax upon business .done in a corporate capacity, which is the subject matter of the tax imposed in the Act under consideration. * * In the present case the tax is not payable unless there be a carrying on or doing of business in the designated capacity, and this is made the occasion for the tax, measured by the standard prescribed. * * * The tax under consideration, as we have construed the statute, may be described as an excise upon the particular privilege of doing business in a corporate capacity, i. e., with the advantages which arise from corporate or quasi corporate organization. # # * The thing taxed is not the mere dealing in merchandise, in which the actual transactions may be the same, whether conducted by individuals or corporations, but the tax is laid upon the privileges which exist in conducting business with the advantages which inhere in the corporate capacity of those taxed, and which are not enjoyed by private firms or individuals. These advantages are obvious, and have led to the formation of such companies in nearly all branches of trade. The continuity of the business, without interruption by death or dissolution; the transfer of property interests by the disposition of shares of stock; the advantages of business controlled and managed by corporate directors; the general absence of individual liability- — these and other things inhere in the advantages of business thus conducted, which do not exist when the same business is conducted by private individuals or partnerships. It is this distinctive privilege which is the subject of taxation, not the mere buying or * * * handling of goods which may be the same, whether done by corporations or individuals.”
Thus the conviction obtains that, the purpose of our Chapter 79, Laws of 1917, being the imposition of an excise upon the corporation for the privilege of doing business as such, and without regard to the character of the business, insurance corporations were intended to be within its purview.
Our attention is called to the facts that the corporations excepted from the provisions of the Act in section 1, subsection 16, and those whose “rate of license was to be changed by the new law as set forth in section 10” are to be found in the Chapter of the Political Code relating to the classification of licenses. “The reason for this,” it is said, “is that the committee was dealing with the exercise of the licensing power of the state, and the fact that the legislature had exercised such power with reference to insurance companies * * * was overlooked. ’ ’ The facts are as stated, and the explanation suggested may be correct; but neither the facts nor the explanation suffice to show a legislative intent to except insurance corporations from the Act. Such an intent could be asserted only on the assumption that the legislature was pursuing a general plan to exclude all corporations subject to license under the Chapter referred to. That this is not true is clear, for, though brewers licensed by section 2770 are excepted, and though the provisions (sections 2773, 2774, 2777) licensing telephone, telegraph, electric light, gas, water and express companies, common carriers and street railways are repealed, the pursuit of other lines of business equally open to corporations and licensed by the same Chapter — such as retail liquor dealers, theater proprietors, imitation butter merchants, tobacconists, venders of implements, contracting builders, maltsters, etc. (Rev. Codes, sees. 2758, 2759, 2763, 2766, 2778, 2779) — stands unrelieved by any provision of Chapter 79, Laws of 1917. Again, if the facts referred to could be said to indicate a general plan to except corporations subjected to license under prior laws, the omission from such a plan so obviously within its scope as in surance companies, to say nothing of the other occupations just mentioned, would spell a purpose, under the familiar rule expressio unius, to omit that case from the operation of the plan. (Spira v. State, 146 Ala. 177, 41 South. 465.) As to the explanation suggested, it is unavailing, because it cannot be verified, because a supposed unexpressed intention cannot override the clear import of the language employed, and because reasons sufficient may have appealed to the legislature to preserve the distinction between bodies corporate with their privileges and bodies not corporate, engaged in insurance and the other occupations above mentioned, while ignoring it in the case of brewers and public utilities.
(B) The proposition that, if Chapter 79, Laws of 1917, [3] applies to insurance corporations, it repeals section 4017 involves considerations of (a) the general repealing clause contained in the Act first mentioned; (b) the abhorrence of the law for double taxation; and (c) the doctrine of implied repeal. Section 4017 provides: “All insurance corporations, associations and societies as hereinbefore specified in the preceding section, before commencing to do business in the state of Montana, shall be required to secure a license, authorizing them to transact business of insurance corporations, associations or societies, and shall pay to the state auditor for such license the following fees: For a license to collect in any one year premiums amounting to the sum of five thousand dollars or less, one hundred and twenty-five dollars. For a license to collect in any one year premiums over the sum of five thousand dollars, the sum of twenty dollars for each and every one thousand dollars to be so collected. * * ’ * ” The history of this and cognate statutes up to. 1903 will be found reviewed in Northwestern Mutual Life Ins. Co. v. Lewis & Clarke County, 28 Mont. 484, 98 Am. St. Rep. 572, 72 Pac. 982. From this decision and subsequent legislation it will be gathered that the legislature did not always deem the license fee exacted by section 4017 entirely adequate, for up to 1911, section 4073, Revised Codes, also existed, imposing an additional tax on in suranee companies based upon the excess of premiums collected over losses paid. By the Act approved March 2, 1911 (12th Sess. Laws, p. 131), Code section 4073 was repealed, leaving the companies for the time being under the sole burden imposed by section 4017; but in the case just cited the essential distinction between the two enactments was clearly pointed out.
(a) In the light of this decision we are enabled to say that section 4017 and Chapter 79, Laws of 1917, are not coterminous, either in language or purpose. The range of the former is over all insurance companies, whether corporate or not, and it is confined to them; the range of the latter is over all corporations save those excepted, without regard to the business pursued, and’it does not apply to unincorporated concerns. One is unconditional, requiring no net income, imposing a license to carry on a particular business subject to control by a specific department of the state, and fifty per cent of all licenses collected from fire insurance companies under it must be paid to the treasuries of cities for the benefit of the firemen’s disability fund (Laws 1915, Chap. 49); the other is conditional, requires a net income, imposes an excise upon the valuable privilege of doing business as a corporation measured by that income, and its principal purpose is the raising of revenue for the exclusive use of the state. There is therefore no manifest conflict between the two enactments; if they touch at any point, it is not in a way to interfere with the operation of either; hence the general repealing clause cannot be successfully invoked.
(b) This is not a ease of double taxation in any proper acceptance of that term. We are ready to concede that an intention to impose double license burdens is not to be presumed, although no provision of the Constitution may inhibit them. This, however, refers- to impositions upon the same person for the same thing; and the only warrant for the assertion that such is the effect of Chapter 79, Laws of 1917, in connection with Code section 4017, is in the fact that both are called licenses; and, where the insurance company is a corporation, both, may be exacted- But they are not for the same thing. Reverting again to the Tariff Act of 1909, from which it is said that Chapter 79 was taken, it may be noted that by other federal statutes brewers, rectifiers and dealers in tobacco were required. to pay license fees for engaging in those pursuits, yet it never was, nor in the light of Flint v. Stone Tracy Co. could be, contended that a corporation thus engaged was relieved of either the license or the excise. Are we to suppose that in virtue of Chapter 79, Laws of 1917, the provisions of the Code (sections 2758, 2759, 2763, 2766, 2778, 2779) imposing an occupation license upon retail liquor dealers, theater proprietors, imitation butter merchants, tobacconists, venders of implements, contracting builders, maltsters, etc., are repealed where the agency is corporate and in force where it is not? On what basis of equality could an unincorporated malting concern be required to pay an occupation license while its incorporated rival is exempt? The question is a fair one, because the fact that the corporation may, but need not, be taxed as such is wholly beside the matter of occupation wherein the two are on a level. Indeed, it would be as difficult to show, and would exhibit a strange confusion of ideas to attempt the task, why a corporation taxable as such should be relieved of its occupation charge, as that an unincorporated concern, pursuing a licensed occupation, but not enjoying any of the privileges or immunities of corporate capacity, should pay a corporate excise. The things are separate and distinct; if a concern presents either, it is subject to pay accordingly, and if it presents both, it must pay for both. (See Northwestern etc. Ins. Co. v. Lewis & Clark County, supra.)
(c) As there is not any conflict or crossing of purposes between the two statutes, the above considerations dispose of the contention for an implied repeal as well as of the suggestion following Sutherland (Statutory Construction, sec. 158) that: “Unless there is plain indication of an intent that the general Act shall repeal the special, the latter will continue to have effect and the general words with which it conflicts will be restrained and modified accordingly.” We may add that if section 4017 be viewed as special in character, while Chapter 79, Laws of 1917, is looked upon as of a general nature — which distinction we do not clearly see — then the rule is that the former is not to be considered as repealed by implication. (36 Cyc. 1087.)
(C) It is argued, however, that if Chapter 79, Laws of 1917, does apply and does not repeal section 4017 then it is invalid, because its title is defective, because it violates the state Constitution (sec. 27, Art. Ill; sec. 26, Art. Y), and because it is inimical, to the Fourteenth Amendment to the federal Constitution.
The title is not open to any objection. It is comprehensive and not misleading; it states the purpose of the Act with precision, and the only thing the matter with its reference to the statutes to be repealed is a misplaced quotation mark; this is not enough to bring it within the case of State v. Mitchell, 17 Mont. 67, 42 Pac. 100, cited to condemn it.
The constitutional objections are twofold, viz., that no basis exists for the distinction whereby insurance corporations are required to pay a double license while other corporations covered by the Act are not, and that, the discrimination between corporations engaged in business wholly within this state and those engaged in business partly within and partly without the state is indefensible.
Assuming, for argument’s sake, that insurance corporations are required to pay a double license, while other corporations covered by the Act are not, the objection, if valid, would go to the statute making the distinction, which in this instance _ would be 4017, not Chapter. 79, Laws of 1917, and the same complaint would be open to corporations engaged in malting, running a theater, construction, etc. The objection, however, is not valid. As between insurance corporations and other corporations covered by the Act, there is no distinction in virtue of the Act; the distinction arises under authority of section 4017, out of the occupation pursued, and occupation has al ways furnished ground for license classification, whether as to the amount imposed or as between subjection to and immunity from imposition. (State v. Hammond Packing Co., 45 Mont. 343, 123 Pac. 407.)
From the portions of sections 2 and 3 of the Act above quoted, it will be gathered that a distinction is made between corporations whose business is and those whose business is not wholly within this state, in that the forme'r are and the latter are not authorized in ascertaining net income to deduct taxes and license fees imposed by authority of the United States or any foreign country. At first blush this seems an invidious and baseless discrimination, but upon more careful scrutiny we can see that the discrimination was not only just, but necessary, if anything like an equality of burdens was to be attained. A corporation whose business is wholly within this state presents a case where the basis of every public demand, state, national or foreign, is here; that business constitutes its only resource available to answer such demands, and a balance struck between that business and those demands in connection with the other deductions allowed is a true measure of its net income. Essentially different is the situation presented by a corporation of the other class; its business may be partly local, partly interstate, partly within some other state, and it would be very remarkable adjustment of burdens which should shift to the business done within this state, and thus relieve all its other business, the load created by authority without the state and properly chargeable to its interstate business, or, as the case may be, to its business conducted wholly within another state; for such a corporation a true measure of its net income taxable by this state is, as the statute has it, the difference between its business here and the burdens here imposed in connection with the other deductions allowed, leaving to its business elsewhere the burdens imposed by authority elsewhere. This arrangement leaves the two classes upon a substantial equality; any other would give to the corporation whose business is not wholly within, this state a considerable advantage. Foreign corporations, assuming the apparent distinction here involved to be as between them and domestic corporations, which it is not, cannot complain that they are- not given advantages over those created by authority of the state. (Southern Ry. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 17 Ann. Cas. 1247, 30 Sup. Ct. Rep. 287.)
We think the statute is squarely within all the rules touching reasonable classification for the purpose of responding to public charges.
The judgment is therefore affirmed.
!Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
Rehearing denied July 11, 1918.
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] |
MR. JUSTICE SANNER
delivered the opinion of the court.
The complaint in this ease is similar to that presented in Chicago, M. & St. P. Ry. Co. v. Murray, ante, p. 162, 174 Pac. 704, except that it involves,the block-signal system of the Northern Pacific Railway as the same traverses Stillwater county. The appellant treasurer of Stillwater county filed a general demurrer, which was overruled, and he, declining to plead further, suffered judgment to be entered according to the prayer of the complaint, from which judgment this appeal is taken.
Since, as the complaint avers, the block-signal system “is located on the roadbed and adjacent to the track of said railroad, and is attached to the track and the rails thereof” in such a manner as to be operated automatically by passing trains, it comes within the rule announced in the Murray decision relative to the trolley line, and is assessable by the state board of equalization, and not by the county assessor.
The judgment is therefore affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
At the general election held November 5 of this year, Frank D. Miracle was elected state senator for Lewis and Clark county to fill the unexpired term of the senator elected in 1916 who resigned. On November 22 the newly elected senator died, and on November 27 a special election was duly called for December 28 to elect a senator to fill the vacancy. On November 30 the Republican county central committee, acting through its executive committee, assumed to nominate Park Smith as the candidate of the Republican party for state senator, and certified his nomination to the county clerk, who refused to file the certificate. This proceeding was instituted to have determined the question whether under the laws of this state the county central committee had authority to make the nomination. If it had, the county clerk was required) to file the certificate. If i't had not such authority, the clerk cannot be compelled to file the certificate.
Plaintiff must assume the burden of calling to the attention of this court some provision of law which gives countenance to the authority which the committee assumed to exercise, for clearly it exceeded any authority which vested in a like body from 1895 to 1912. Under the convention system of nomination the central committee never had authority to make original nominations. It was only after a duly constituted convention had made a nomination and a vacancy occurred before the election that the committee was authorized to act. It did not make an original nomination, but merely filled the vacancy. But counsel for plaintiff rely upon the provisions of section 32 of the Direct Primary Election Law (Laws 1913, p. 570) for the authority exercised by the committee in this instance. Was it the purpose of that Act to clothe the central committee with power to make a nomination originally? We think not. Such a construction of the language of section 32 would lead to a result at war with the intent and purpose of the entire measure. It is entitled “A law to provide for party nominations by direct vote,” and the title of a statute is indicative of the legislative intent in passing it.
Within the compass of this Act it was clearly the purpose to confer -the power to make original nominations upon the electors voting at a primary election. If we eliminate from the Act the idea of direct nominations by the electors, nothing whatever of consequence remains. In order to interpret the statute, that fundamental purpose must be kept constantly in view, and every section of the Act read with that idea in mind.
Section 32 provides for the election of a central committeeman in every precinct, for the organization of the county and city central committees, and confers upon such committees specific authority as follows: ‘ ‘ Said county and city central committees shall have the power to make nominations to fill vacancies occurring among the candidates of their respective parties nominated for city or county offices by the primary nominating election, where such vacancy is caused by death or removal from the electoral district, but not otherwise. ’ ’ No authority is here given to make an original nomination, but the power conferred is limited strictly to filling vacancies occurring among candidates nominated by the primary nominating election. As if to add emphasis to the fact that very limited authority was intended to be conferred upon the committee, the statute restricts the causes for which a vacancy may occur, to death or removal of the candidate from the jurisdiction. It will be observed that though the naked authority is conferred by the section, no provision is made for its exercise; but a statute is to be construed in its entirety, and by turning to section 16 we are apprised of the procedure necessary to be followed by the committee in filling such a vacancy.
Counsel argue that section 16 itself confers upon the committee the authority to fill vacancies occurring after the primary and before the general election, and insist that the language of section 32 must be construed to give some additional authority, otherwise it is meaningless. It is an elementary rule that in construing a statute the court must give meaning to every word, phrase, sentence and section, if possible to do so, and the rule is grounded in the presumption that the lawmakers did not employ language without meaning. We encounter no difficulty, however, in applying that rule to the provisions of the two sections now under consideration.
We have given our interpretation to section 32. Section 16 refers to the same character of vacancy, and provides: “Such vacancy may be filled by the committee which has been given power by the political party or this law to fill such vacancies substantially in the manner provided by sections 529 and 530, Revised Codes of Montana 1907. ’ ’
It will be observed that this language is general. It refers to any central committee recognized by the Act. It authorizes such committee to exercise certain powers when delegated to it by the political party for which it stands sponsor, or when conferred by this Act.
The only authority which a state or district central committee has to fill vacancies is delegated authority, derived from the political party, whereas the like power is conferred upon the county and city central committees by the express provisions of section 32 of this Act. This latter section creates the county and city central committees and defines their powers. Section 16 defines the circumstances under which they may exercise the powers, and prescribes, by reference, the mode of procedure. It likewise recognizes the authority of the state and district committees to fill vacancies when authorized by the parent political organization to do so. The same fundamental principle pervades this Act as the prior statute, viz.: The committee has no authority to make an original nomination. Its power is limited to filling vacancies which occur after nominations have been regularly made.
Finally it is insisted that since Mr. Miracle was nominated at the primary nominating election held in August last, his death after election created a vacancy within the meaning of section 32 above, and that the committee did nothing more than fill that vacancy. We are unable to appreciate the subtle re finement of reasoning which would justify such a conclusion. If at the time of his death Mr. Miracle was a candidate for state senator, then his death created a vacancy which the committee could fill. If he was not such a candidate, then his death created a vacancy in the office of state senator, but not a vacancy in the candidacy of the Republican nominee. Mr. Miracle was elected to office on November 5, and when the polls closed on that day he ceased to be a candidate.
Many of the provisions of the primary election law are crudely drawn, and some of them are almost unintelligible, but we believe that the construction we have given the Act expresses the intention of the people in enacting it.
For the reason that the committee has not any authority under the primary law or other statutes to make an original nomination, as was attempted in this instance, the motion to quash the alternative writ is sustained, and it is ordered and adjudged that plaintiff take nothing, and that defendant recover his costs.
Mr. Chief Justice Brantly and Mr. Justice Pigott concur.
|
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MR. JUSTICE ERICKSON
delivered the opinion of the court.
The plaintiff, a taxpayer of the city of Helena, brings this original proceeding in this court seeking to restrain the defendant Armory Board and its members from performing certain acts regarding the erection of armories in the cities of Helena and Bozeman.
Under Chapter 161 of the Laws of 1939 the Montana Armory Board was created, particularly naming its status to be “ a body politic and corporate.” Section 2. The board was given certain powers. The powers particularly applicable to this case are as follows:
‘ ‘ Section 4. The Montana armory board shall possess all the powers as a body corporate necessary and convenient to accom plish the objects and purposes prescribed by this Act, including the following, which, however, shall not be construed as a limitation upon the general powers hereby conferred:
“(a) To enter into contracts and be contracted with in any matter connected with any corporate purpose, herein defined.
“(b) To borrow money and issue bonds, and to pledge any and all property and income of such board acquired or received as herein provided, to secure the payment of such bonds, and to redeem such bonds.
“(c) To sue and be sued.
“(d) To acquire, hold and convey real or personal property, by gift or purchase for armory purposes.
“ (e) To donate such property to the State of Montana if and when all debts which have been secured by such property or by the income thereof, have been paid.
“ (f) To purchase sites and buildings or to purchase sites and construct buildings for armory purposes, provided that the board of county commissioners of the county wherein said site or building is to be purchased or a building constructed, shall give their written approval of said purchase or construction.
“(g) To execute leases of buildings and sites to the State of Montana for armory purposes, and in the event of nonpayment of any rents reserved in such leases, to execute leases thereof, to others for any suitable purpose, on such terms as the board may fix. Such leases to the State of Montana shall be subject to appropriations to be made by the'legislative assembly, for the payment of rent under such leases. The rent charged the State of Montana shall not be in excess of the amount necessary for the retirement of bonds secured by the property leased to the State, and other expenses incident thereto, including cost of operation. ’ ’
On the 21st day of August, 1939, the board adopted a resolution setting up a financial plan to build an armory in Helena at the cost of $200,000, and in Bozeman at the cost of $90,000. In brief the plan is as follows: For the Helena Armory the Works Progress Administration will contribute $52,000; the adjutant general’s office some part of $36,000 (amount appro priated by legislature for biennium for rebuilding state arsenal) and in addition $125,000 will be raised through the sale of bonds issued on a trust indenture. For the Bozeman Armory the Works Progress Administration will contribute $40,000, and $50,000 will be raised through the sale of bonds. For retiring the bonds issued, the board relies upon two possible sources of revenue (1) renting the buildings to the state, or (2) renting for private or public enterprise.
The plaintiff contends that Chapter 161 contravenes the provisions of the Constitution in ten instances: First: That the Act constitutes an improper delegation of legislative power. The powers given in the Act which the plaintiff claims belong exclusively to the legislature are: (1) Power to select sites, (2) unlimited power and discretion as to size, specifications and design, (3) unlimited power as to amount of money expended, (4) power to determine the need of the armories.
By the very enactment of Chapter 161 (a) the legislature has determined the need of armory facilities and has created this board to perform such acts as may be necessary to accomplish the purpose. (See Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.(2d) 627.) The provisions relating to the powers are carefully confined to activities of the building and maintenance of armories. The power to determine sites, amounts to be spent, and size do not in this case become an exercise of legislative power since the Act contemplates that the state will not become the owner of the property until or unless donated to the state under the power given in subsection (e) of section 4.
Second: That the Act provides for an appropriation in eon-(b) travention of sections 33, 34 and 35 of Article V of Constitution. Chapter 161 does not provide an appropriation and therefore could not possibly be in conflict with the above constitutional provisions. The Act merely directs the board to exercise the power to rent to the state of Montana and requires the rental to be no more than the amount necessary to pay the principal and interest on the bonds and other legitimate expenses, such as maintenance, operation, financing, etc., — retire the bonds secured by the property. That section (subdivision (g) of section 4) does not bind the legislature to make any appropriation.
Third: That the State Board of Examiners has jurisdiction (c) over the subject matter of Chapter 161 by virtue of section 20, Article YII of the Constitution. Section -20 relates to the Board of Examiners’ power to pass on claims against the state. Chapter 161 makes no provision that the Armory Board shall have the leasing power on behalf of the state. The legislature by appropriation may authorize such leases to be made and paid for through the regular channels and the Board of Examiners will be deprived of no power to pass upon the claims for rent which may be presented to the state by the Armory Board.
Fourth: That Chapter 161 makes armories state institutions (d) to be supported by the state under the provisions of section 1 of Article X of the Constitution. That section of the Constitution does not expréssly or by implication include the type of corporation created by Chapter 161. Institutions under the constitutional provision relate to those wherein the title of the property is in the state. Chapter 161 expressly puts title in a public corporation separate and apart from the state.
Fifth: That if the armories are not state institutions they (e) will not be tax exempt under section 2 of Article XII of the Constitution. Again this contention does not affect the validity of Chapter 161, but is merely incidental to operation of the plant after construction. The “public corporation” created by Chapter 161 is in the same category as a municipal corporation. The purposes are for public benefit the same as in the case of a municipal corporation and we think the constitutional provision is broad enough to exempt the property held by the board, certainly at least so long as the property is used exclusively for armory purposes as provided in the Act.
Sixth and Seventh: That Chapter 161 contravenes sections 12 and 14 of Article XII of the Montana Constitution. Section 12 relates to appropriation limit as to amount and period. Chapter 161 does not bind the legislature to make appropriations of any nature; consequently this contention is not pertinent here.
Section 14 relates to the method of handling the deposits of (f) state monies. The money raised by the sale of bonds becomes a special fund to be disbursed for the erection of proposed buildings. This money is not derived by taxation and consequently need not be handled in that manner. (State ex rel. Veeder v. State Board of Education, 97 Mont. 121, 33 Pac. (2d) 516; State ex rel. Hawkins v. State Board of Examiners, 97 Mont. 441, 35 Pac. (2d) 116.)
Eighth: That Chapter 161 creates an instrument empowered (g) to create a debt against the state and thus contravenes sections 1, 2 and 4 of Article XIII. There is nothing in the Act which obligates the state to be liable for any debt. As before stated, the legislature is not bound to make any appropriation for rental payments, and in such contingency the bondholders have only their remedy of foreclosure upon the property held by the board, no part of which can be, under the terms of the Act, property of the state until the board donates the property to the state free of all indebtedness.
Ninth: That Chapter 161 allows a corporation other than (h) those enumerated in section 2 of Article XV to be created by special law. This section of the Constitution deals with corporations organized for profit. Chapter 161 creates a “body corporate” similar to a municipal corporation.
Tenth: That Chapter 161 is-an exercise of jurisdiction ex-(i) pressly conferred by sections 1, 2, 3, 4 and 5 of Article XIV of the Constitution. Those sections deal exclusively with the military affairs of the state. Chapter 161 makes no infringement on the conduct of the military affairs of the military department. The state, through the military department, will rent the building from the Armory Board. The legislature has adopted Chapter 161 as a means of making facilities available for the military activities of the state.
The contention (No. 11) that the adjutant general does not have authority to execute leases for and in behalf of the Montana National Guard, and, at least, not to execute leases for longer than two years, does not affect the validity of the statute (Chap. 161). The statute, however, does make provision whereby the board may execute leases to the state of Montana for armory purposes. Rent is to be paid by an appropriation. An appropriation made to the adjutant general’s department, such as was made in 1939 (for rental of drill halls, etc.), certainly gives the power to the adjutant general to rent the buildings. As to leases for a longer period than two years, there is nothing before us to indicate that such a plan is contemplated.
Plaintiff’s contention No. 12 presents the question: Can the money appropriated by the legislature in 1939 “for the expenses for additional units and rebuilding state arsenal eighteen thousand dollars” (for each year of the biennium) be used as a part of the original investment in the armories as proposed by the resolution of the board? It is apparent from reading the Act making the appropriation that the legislature contemplated no such use of the funds appropriated. The appropriation was for the specific purpose of rebuilding the state arsenal, a specific building owned by the state itself, and the further provision for expenses for additional units cannot under any stretch of the imagination be said to contemplate the proposed use here. No part of the funds appropriated by the 1939 legislature may be used as contemplated here.
Other serious constitutional questions arise in connection with the proposed use of the $36,000 fund, but in view of what has been said, we do not deem it necessary to discuss those questions.
We hold that the powers granted by Chapter 161 are constitutional, and the Armory Board and the other defendants herein may proceed in the manner proposed with the exception that no part of the $36,000 may be used in the original investment. The writ then will issue, but only in so far as above stated.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur.
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MR. JUSTICE ARNOLD
delivered the opinion of the court.
The plaintiff brought action against her husband, the defendant, for divorce, alleging, among other things, that the defendant for more than one year immediately preceding the commencement of the action had treated the plaintiff with extreme cruelty and had inflicted grievous mental suffering on the plaintiff by a course of conduct set out in section 5738, Revised Codes of 1935, using the language of the statute in her allegation. After a trial without a jury, the court made general findings to the effect that all the allegations of the complaint were true, and that the plaintiff was without means to support herself and minor son, of the age of four years, and that $50 per month was reasonable and necessary for permanent support of plaintiff and her son. Judgment was entered accordingly, granting her a divorce and custody of the child with $50 per month as permanent support. The defendant was an oil field laborer earning about $145 per month.
The sole question for us to determine is whether or not the evidence sustains the decree. It appears that when the plaintiff married she was 18 years of age and the defendant approximately 38 years of age. The plaintiff testified that he was uncompanionable and morose, unhappy and jealous; that he would not take her to social gatherings and accused her of improper relations with others. The evidence indicates that the plaintiff frequently in the absence of her husband went to dances, roller skating parties and other social events, and at times left her young child in the custody of others while she was out seeking social companionship. In the evenings she would spend much of her time downtown. The defendant rarely accompanied plaintiff to social gatherings, claiming he could not afford it.
The evidence in support of an allegation that the defendant threatened to kill the minor son of plaintiff was as follows:
“Q. You said you were going out riding on Sunday afternoon with Claude Deere and Effie Deere? A. Yes. As I gathered • Eddie up in my arms Frank rushed to the dresser drawer and pulled out a 32 revolver gun and said, ‘No, you don’t go, or I will go out there and kill them.’ Well, I opened the curtain and motioned them on. I didn’t question him. I didn’t want anything to happen.”
The defendant denied this alleged happening in toto. There was nothing to corroborate plaintiff concerning this, and besides plaintiff continued to live with defendant for more than a year thereafter.
Likewise the charge that defendant accused plaintiff of improper relations is virtually unsupported, the only evidence we find in the record being as follows: From testimony of plaintiff’s sister, Effie Deere:
“Q. Will you tell the Court who went to the Park and what time it was? A. It was May the 30th, is when Sam Simpson, myself, my husband and sister went along.
‘‘Q. Was there any argument or fight between the plaintiff and defendant after you returned from Glacier Park? A. Yes, there was.
“Q. Will you tell the Court what that argument was about? A. He accused her of adulterations with Sam.
“Q. You mean adultery, do you not? A. Yes, sir.”
From plaintiff’s testimony:
“Q. Did he accuse you of having improper relations with anybody on that trip ? A. He could not say he would be along. He did not know. * * *
‘‘Q. And did he also continually accuse you of having— A. Yes, he did.
“Q. Of having relations with anybody else? A. Yes, sir.”
On the other hand, the defendant testified that the charge of improper relations, if it could by any interpretation be such, was in the following words:
“Q. You have heard the testimony of the plaintiff, as well as various witnesses to the effect that you had accused her of improper relations with other men. Is that true? A. No, sir, I have never accused her.
‘Q. Will you state to the Court the nature of the conversation had upon her return from Glacier Park on the occasion when Sam Simpson was present? A. I told her if she kept running around with Sam Simpson that she was going to lower her name, and that if she insisted upon going with an Indian, why, she knew what she could do. I said, she was not making a home for me.”
There is evidence that plaintiff’s sisters advised her on several occasions to leave the defendant and that she would probably be happier with a younger man.
The effect upon plaintiff of the alleged extreme cruelty was given to the court in the following words:
“Q. Tell the court whether or not it is possible for you to continue to live with the defendant. A. It was not.
“Q. And is it now in your opinion possible? A. No, sir, it is not.”
As was said in the Montana case of Williams v. Williams, 85 Mont. 446, 278 Pac. 1009, 1010: “Each case must be determined upon its own peculiar facts, and it is well recognized by the authorities that an inclusive and exclusive definition of legal cruelty cannot be given. The courts have not attempted so to do, but generally are content with a determination as to whether the facts in the case considered constitute extreme cruelty. Whether the defending spouse has been guilty of extreme cruelty as defined by the statute is purely a question of fact to be determined from all the testimony presented. The particular acts of cruelty of which complaint is made are not in themselves determining factors, but the question is whether the acts of cruelty are of such a nature and character as to destroy the peace of mind and happiness of the injured party.” (Putnam v. Putnam, 86 Mont. 135, 282 Pac. 855; Bickford v. Bickford, 94 Mont. 314, 22 Pac. (2d) 306.) In the last cited case we recognized the rule that, when the evidence fully considered furnishes reasonable grounds for different conclusions, the findings will not be disturbed.
In 19 Corpus Juris, page 50, we find the following: “And the fact that a wife is moody, whimsical, exacting, irascible and inconsiderate of her husband, failing to take an interest in his affairs or enter into the social life which he desires does not entitle the husband to a divorce on the ground of cruelty. The general rule is that conduct causing mental pain to constitute cruelty must be such as to produce impairment of health or create reasonable apprehension of that result. Hence, as a rule, treatment causing mere unhappiness, accompanied by no 111 effects on the health, actual or threatened, is not such cruelty as to authorize a divorce. Where, however, the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony, a divorce may be granted on the ground of cruelty; and in those jurisdictions where extreme cruelty as defined by the statute includes the infliction of grievous mental suffering as well as bodily injury, it is not necessary that such suffering produce impairment of health. ’ ’
While our statute provides that such acts as fall within the definition of extreme cruelty are grounds for divorce if they are justly and reasonably of such a nature and character as so to destroy the peace of mind and happiness of the injured party, or entirely to defeat the purpose and legitimate objects of marriage, or to render the continuance of the married relation between the parties perpetually unreasonable or intolerable to the injured party, nevertheless the burden is on the plaintiff to show that the effect of such acts creates the condition which the statute condemns, whieh we believe she has failed to do in this case. The evidence, weak as it is, shows little more than incompatibility, which is not a ground for divorce in Montana in the absence of a showing of the result, specified in the statute.
It is clear that the disparity in ages of the parties, interference on the part of relatives, the desire for emotional outlet on the part of the plaintiff at social gatherings which people of her age like to attend, and the lack of desire on the part of the defendant to attend them, were the chief causes for the marital disturbances outlined in the complaint. The failure of plaintiff to subordinate juvenile emotions to her responsibilities as a mother and wife, and the refusal of the defendant to yield in some degree to her idea of social diversions were also contributing factors.
Before severing marital bonds, awarding alimony and depriving a father of his son, and a son of his father, the evidence should be clear and convincing that his actions result in what the statute condemns, as we have mentioned above. We believe the decree is not supported by substantial evidence.
The judgment is reversed with direction to the trial court in its discretion either to dismiss the complaint or retain jurisdiction for such further proceedings as it deems proper not inconsistent with this opinion.
Mr. Chief Justice Johnson and Associate Justices Morris and Erickson concur.
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MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment of dismissal entered for his failure to file an amended eomplaint after defendants’ motion to separately state and number the causes of action was sustained. The legal question presented is whether the complaint states more than one cause of action.
Summarized, the complaint, which was filed in February, 1938, sets forth that plaintiff on January 29, 1937, obtained a judgment in the district court of Musselshell county against defendants Pat Doody, P. R. Staunton and Jack Jarrett in the sum of $1,150, with costs and interest, which is wholly unpaid and which has become final. A certified transcript of the judgment was filed in Yellowstone county on July 28,1937. Execution was issued on the judgment and returned as wholly unsatisfied and unpaid. The three named defendants were partners and business associates at the time the judgment was obtained. The complaint alleges that each of the three judgment debtors at different times had fraudulently transferred certain described property without consideration to a different grantee or grantees for the purpose of hindering, delaying and defrauding plaintiff in the matter of obtaining satisfaction and payment of his judgment. Each transfer complained of was made to one or more of the other defendants herein.
Without reiterating all of the details with reference to the transfers, it is sufficient to state that the transfers covered property situated in Musselshell and Yellowstone counties, were made at different times, some before and some after the judgment was obtained; each tract of land or piece of property involved was the separate property of only one of the judgment debtors and was conveyed to a different grantee. The complaint also seeks to have applied on plaintiff’s judgment the sum of $669.01, alleged to be in the possession of Pat Doody, Mary B. Doody and A. G. McNaught.
The motion to separately state and number proceeded upon the theory that each transfer constituted a separate and distinct cause of action, and, in consequence, must be separately stated and numbered pursuant to section 9130, Revised Codes. Plaintiff contends that he has but one cause of action. Obviously, if there is but one cause of action, a motion to separately state and number would not lie.' Hence we must determine whether the complaint states more than one cause of action. Whether it does or not depends upon whether there has been an invasion of more than one primary right. (McLean v. Dickson, 58 Mont. 203, 190 Pac. 924; Cohen v. Clark, 44 Mont. 151, 119 Pac. 775.)
The term “cause of action” is not easily defined; it is often confounded with the remedy. In the case of California Trust Co. v. Cohn, 214 Cal. 619, 7 Pac. (2d) 297, the difference between the cause of action and the remedy is pointed out. Pomeroy’s Remedies and Remedial Rights, second edition, in sections 452 et seq., explains the difference between them. He gives illustrations showing that a multiplicity of remedies does not mean that there is more than one cause of action. He then makes this statement: ‘The principle also applies to actions brought against a fraudulent grantor or assignor and his grantees or assignees to set aside the transfers, although made at different times and to different persons, and to subject the property to the plaintiff’s liens, as in creditors’ suits; or to compel a reconveyance and restoration of possession of the property, as in the case of suits by defrauded heirs or cestuis que trustent, and the like. There is but one cause of action against the various defendants in these and similar suits.”
That this rule is general there can be no doubt. Among the cases so holding directly are the following: Gwillim v. Asher, 71 Colo. 143, 204 Pac. 609; Hoggan v. Price River Irr. Co., 55 Utah, 170, 184 Pac. 536; Dixon v. Coleman, 28 Misc. 64, 59 N. Y. Supp. 806; Jacot v. Boyle, 18 How. Pr. (N. Y.) 106; Wright v. Simon, 52 Misc. 360, 102 N. Y. Supp. 1108; North & Carle v. Bradway, 9 Minn. 183, 9 Gil. 169. And the fact that some property is in one county and some in another does not alter the rule. (Jacot v. Boyle, supra; Hunt v. Dean, 91 Minn. 96, 97 N. W. 574; Minor v. Sumner, 80 Ind. App. 269, 140 N. E. 580.)
The authorities are practically unanimous in holding that an action in the nature of a creditor’s bill against an alleged fraudulent grantor and his fraudulent grantees to set aside different deeds covering separate property, made at different times and to different grantees, is not multifarious. (15 C. J. 1424; Tucker v. Foster, 154 Va. 182, 152 S. E. 376, 69 A. L. R. 220, and authorities cited in exhaustive note on page 229 et seq.; and note in 108 A. L. R. 699; Hubbard v. White, 212 Ala. 394, 102 So. 699.)
We recognize a difference between multifariousness and the question before us. In other words, whether a complaint is multifarious or not depends upon whether two or more causes of action are improperly united. They may not be improperly united, hence not multifarious, even though there are several causes of action.
Here the question is: Is there more than one cause of action alleged? If there were but one judgment debtor involved, the case would present but little difficulty. The above cases which are unanswerable in logic and practically without a dissenting voice, would settle the question in favor of the contention that there is but one cause of action. The case here is further complicated, however, by the fact that there are three judgment debtors, and each has made transfers of his separate property to different grantees. However, the same reasoning that holds there is but one cause of action in the ease of several transfers by one judgment debtor supports the conclusion that there is but one cause of action in the case of two or more joint debtors transferring their separate property.
In Beavans v. Groff, 211 Ind. 85, 5 N. E. (2d) 514, 516, 108 A. L. R. 694, the court speaking of these actions said that while they “are of the type generally denominated actions to set aside fraudulent conveyances, that is not their purpose, nor do they result in setting aside the conveyances. The conveyances continue valid as between the grantor and grantee, and the only effect of the judgment is to subject the property to execution as though it were still in the name of the grantor. Such actions are in the nature of a judgment creditor’s bill. (Towns et al. v. Smith et al., (1888) 115 Ind. 480, 16 N. E. 811; Wild v. Noblesville Building etc. Association et al., (1899) 153 Ind. 5, 6, 53 N. E. 944, 945.) They have for their sole purpose the removal of obstacles which prevent the enforcement of the judgment by the executive officers of the state through the levy of execution. ‘A judgment creditor’s bill is in essence an equitable execution comparable to proceedings supplementary to execution. ’ (Pierce et al. v. United States, (1921) 255 U. S. 398, 401, 402, 41 Sup. Ct. 365, 366, 65 L. Ed. 697, 702.) While the action may involve a conveyance said to be fraudulent, the recovery is not for the wrong or tort. It is not in damages. The same relief may be had where property of the judgment debtor is held by a trustee in his own name, and when there has been no conveyance. The right to have the property subjected to execution does not depend upon the fraud. The relief will be granted in any case where property of the judgment debtor is held in the name of another. ’ ’
In Bradner v. Holland, 33 Hun (N. Y.), 288, plaintiffs had a judgment against Joseph and John Holland. Each of the Hollands was bequeathed a legacy of $4,000. Plaintiffs brought the action to have the property of the two judgment debtors applied to the payment of the judgment. The court in holding that there was not a misjoinder of causes of action said: “The plaintiffs have a judgment against the defendants Holland. The remedy at law has been exhausted by return of execution unsatisfied. This action is in the nature of a creditor’s bill brought to reach the property of those judgment debtors not subject to levy and sale by execution. It is at least proper to join all the judgment debtors as defendants. (Child v. Brace [N. Y.], 4 Paige, 309; Van Cleef v. Sickels [N. Y.], 5 [Paige] 505.) The fact that the property sought by the action to be reached is owned by the judgment debtors in severalty is no-ground of objection. The judgment is against both defendants, and the purpose of the action is to discover and reach their property to apply in payment of the judgment. It is in nowise important for the purposes of the action whether they own the property jointly or severally. The plaintiffs are in pursuit of the property of the defendants, the judgment debtors. The remedy in view is an equitable and not an unusual one. The old Code (sec. 167) did not, nor has the new Code (sec. 484) in any substantial respect changed the rule in this class of actions as relates to the parties and the scope of the cause of action. And the provisions of those sections are so general ‘as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice. ’ (N. Y. & N. H. R. Co. v. Schuyler, 17 N. Y. [592], 604.) And distinct rights of property of each of two or more defendants may be pursued by single action against both or all in behalf of creditors to whom they are jointly liable and so charged by judgment, for the pur pose of obtaining satisfaction of it. This rule is deemed a just and proper one to save necessity of multiplicity of suits.”
In the ease of Hobbs Mfg. Co. v. Gooding, (C. C.) 166 Fed. 933, it was expressly held that a bill by a judgment creditor to set aside as fraudulent several conveyances of different property by several judgment debtors to different grantees is bad for multifariousness. The ease was reversed by the Circuit Court of Appeals in Hobbs Mfg. Co. v. Gooding, (1st Cir.) 176 Fed. 259, 262, the court saying: “If the decree here were in solido against all four of the original respondents for one and the same amount, it would not be questioned, and could not be questioned, that an ancillary bill of the character before us would not be multifarious although it joined all four, and although it sought to make available equitable assets of only one, two, or three of them, or several properties fraudulently conveyed by only one, two, or three. This is clear on general equitable principles, because, whatever the form or purpose of an ancillary proceeding having in view securing payment of an original decree, marshaling between all the respondents is an essential element in the view of the Chancellor. Therefore, all the respondents would necessarily be joined in order that the equities of marshaling might be worked out. (Story’s Equity Pleadings, sec. 286.) Pollard v. Bailey, 20 Wall. 520, 22 L. Ed. 376, and other cases of that class, illustrate the broad necessity of bringing in all respondents for the proper application of the equities of apportionment and marshaling. Here we have, as we have shown, apportionment necessarily preceding the same marshaling on the same principles as though there had been but one decree in solido against all four respondents. Therefore, it follows that, on the mere question of multifariousness, there must be a reversal. ’ ’
In Planters’ & Merchants’ Bank v. Walker, 7 Ala. 926, the court in speaking on this point said: “In the present case, joint judgments were recovered by the complainant against G. Walker, J. IT. Walker, and Robert Lowe, all whom, it is alleged, have united in a fraudulent purpose to defeat the collection of these judgments: and to effect that end, have each made transfers of all their property. The two .former, by absolute sales, pro fessing to pass the possession and property to their respective vendees; the latter, by mortgages. All these transactions are charged to have been fraudulent, not only on the part of the defendants in the judgment, but of their vendees and mortgagees. Here, then, it is apparent, that the three defendants last named, have a common interest in the leading object of the bill, viz.: the satisfaction of the judgments, and they are charged with a joint participation in the design to defraud, which led to the supposed fraudulent transfers. This being the case, we think the authorities cited, clearly warranted the plaintiff in joining them in one suit; especially, as by thus uniting them, their rights could not be prejudiced, by subjecting them to increased costs, or protracting litigation. * * * As then a demurrer for multifariousness would not be sustained, for the reason merely, that the bill attacked the transfers of property made to [by?] the three defendants in the judgments, on the ground of fraud, we think the objection cannot be successfully interposed by those who claim under them, derivatively. The citations already made, sustain us in this conclusion. ’ ’
It is our view that plaintiff in this action has but one cause of action, viz., an ancillary action in the nature of a creditor’s bill, in aid of execution to have applied to the satisfaction of his joint judgment, so much of the property of the judgment debtors as may be necessary to pay the judgment.
The situation is not the same as where the main object and purpose of the action is to set aside deeds, as was the case of Griffith v. Griffith, 71 Kan. 547, 81 Pac. 178, relied upon by defendants. On this point, too, the case of Dunn v. Arbuckle, 113 Kan. 169, 213 Pac. 655, also relied upon by defendants, is distinguishable.
The motion to separately state and number should have been denied. The judgment is reversed and the cause remanded with directions to set aside the order sustaining, and to enter an order denying, the motion to separately state and number. Defendants should be granted a reasonable time to further plead,
Mr. Chief Justice Johnson and Associate Justices Morris, Arnold and Erickson concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an appeal by Hollie Newbauer (Newbauer), plaintiff, from a final judgment entered May 1,1997, and from the June 3,1997 Order of the District Court denying her motion for a new trial. We affirm.
BACKGROUND
¶2 The underlying action involved a suit for personal injuries arising out of an automobile accident in Bozeman, Montana. Newbauer’s vehicle, while stopped at a traffic light, was struck from the rear by a vehicle driven by Steven Hinebauch (Hinebauch). The case proceeded to trial on April 21-23,1997, before a Gallatin County jury. The jury returned a verdict determining that both Newbauer and Hinebauch were negligent but that Hinebauch’s negligence was not the cause of Newbauer’s injuries.
¶3 Subsequent to the trial, Newbauer moved for a new trial pursuant to Rule 59, M.R.Civ.P., and §§ 25-11-102 and -104, MCA. As one of the grounds for her motion, Newbauer contended that she was prejudiced at trial by being induced to mention the existence of Hinebauch’s insured status during defense counsel’s cross examination.
¶4 Specifically, the following exchange took place:
[DEFENSE COUNSEL]: You did tell Mr. Hinebauch that you weren’t hurt in the accident?
[NEWBAUER]: He did ask me, “Are you okay?” and I told him ‘Yeah.” I know it was really cold and I was just numb and I — even, you know — when you’re scared, you get the little jitters. And I remember that I was kind of shaky but feeling pain, no.
[DEFENSE COUNSEL]: You say you were scared. What were you scared of?
[NEWBAUER]: Well, that had never happened to me before and I was faced with a big decision to make, whether to call the police or not. And I didn’t do it and I didn’t know if I was doing all the right things. I was just going along with — or talking and he was nice. He gave me his name and number and address and said, “If your husband saw damage, call me. I have insurance.” It was just — you know, I just thought, okay, I’d go home and let him look at it. I didn’t feel like he was giving me a false name or anything, you know, taking off the other way or something. I felt confident that he was a nice guy.
¶5 At that point the court ordered the noon recess and excused the jury. Defense counsel immediately moved for a mistrial because Newbauer injected insurance into the case by stating that Hinebauch advised her that he was insured. Defense counsel argued to the court that there was no way to cure the problem and that an instruction or an admonition to the jury would merely compound the situation.
¶6 In response to defense counsel’s oral motion for mistrial, Newbauer’s counsel stated:
[NEWBAUER’S COUNSEL]: Well, we object. The statement was made in response to council’s [sic] questions. It was about what his client said. It’s not made with reference to any particular element of the case. The — council [sic] has asked the jury to be aware of — to use their common sense in the case and clearly there is no citation for failure to have insurance in this case.
THE COURT: All right. Motion for mistrial is denied. I assume you don’t want a cautionary instruction, [defense counsel]?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: All right. So, we’ll let it go.
¶7 Following the lunch recess, but prior to the jury returning to court, Newbauer’s counsel filed a motion to strike testimony with a request for cautionary instruction. Defense counsel requested the court to instruct the jury as follows:
You are instructed that the testimony of the Plaintiff about the conversation between the Plaintiff and Defendant immediately after the accident is stricken from the record and is to not be considered by you in making your decision.
In arguing the motion, Newbauer’s counsel observed that her reference to Hinebauch’s insurance was “such an innocuous element of the case and an inadvertent one, that the jury, without prejudiced [sic] to anybody, can be told to ignore the last exchange.”
¶8 The trial court denied the motion and refused the instruction stating that Newbauer’s reference to Hinebauch’s insurance was inadvertent, was not flagrant, and that the record would be left with the jury as is and without a cautionary instruction unless Hinebauch wanted one. Defense counsel stated he did not want a cautionary instruction.
¶9 During the settling of instructions the court reiterated its rejection of the cautionary instruction and neither of the parties’ attorneys had’ any further objection.
¶10 In denying Newbauer’s motion for new trial, the court reiterated that any mention of insurance was inadvertent, did not prejudice Newbauer, and did not warrant a special instruction. Newbauer timely appealed.
ISSUES
¶11 On appeal Newbauer raises two issues:
¶12 1. Whether the District Court erred by its failure to strike testimony and by its failure to give a curative instruction following the introduction of evidence concerning insurance coverage.
¶13 2. Whether the District Court erred by refusing Newbauer’s Instruction No. 24 on the evidence of insurance.
¶14 We address both of these issues together.
STANDARD OF REVIEW
¶15 The law regarding a district court’s determination of a motion for new trial is well established. The general rule is that the decision whether to grant a new trial is committed to the sound discretion of the trial judge and "will not be disturbed absent a showing of manifest abuse of discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶30, [288 Mont. 1], 955 P.2d 160, ¶30. Similarly, questions concerning the admissibility of evidence are within the discretion of the trial court, subject to our review in situations that indicate an abuse of discretion. Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 230.
DISCUSSION
¶16 Citing Massman v. City of Helena (1989), 237 Mont. 234, 773 P.2d 1206, and Rule 411, M.R.Evid., Newbauer argues that the interjection of liability insurance coverage or non-coverage generally is prohibited by law. Accordingly, Newbauer maintains that the District Court abused its discretion by failing to strike her testimony mentioning that Hinebauch was insured and failing to issue a curative instruction.
¶17 We do not disagree with the general rule that the introduction of evidence of liability insurance is generally not admissible under Rule 411, M.R.Evid., or under Montana case law or that placing such evidence before the jury may necessitate a curative instruction or the granting of a new trial. See Sioux v. Powell (1982), 199 Mont. 148, 152-54, 647 P.2d 861, 863-64; D’Hooge v. McCann (1968), 151 Mont. 353, 359-60, 443 P.2d 747, 750.
¶18 We note further, however, that in Massman we held that the interjection of insurance into the case did not rise to the level of reversible error. Massman, 237 Mont. at 244, 773 P.2d at 1212. Rather, we stated that the District Court is charged with determining whether any given mention of liability insurance is sufficiently prejudicial to warrant a new trial and that the court’s determination depends upon the circumstances and manner in which the subject of insurance came up. Massman, 237 Mont. at 244, 773 P.2d at 1212. Here, both the court and Newbauer agreed that her mention of insurance was inadvertent and innocuous. While Newbauer believed, nevertheless, that her remark should have been stricken and a cautionary instruction given, the trial judge, in the exercise of his discretion determined otherwise. We are hard pressed, on the facts here, to conclude that the trial court abused its discretion in making this ruling.
¶19 Moreover, we also note that a failure to object or to request corrective action immediately after the mentioning of insurance constitutes a waiver of the objection. Rasmussen v. Sibert (1969), 153 Mont. 286, 294-95, 456 P.2d 835, 839-40; Reno v. Erickstein (1984), 209 Mont. 36, 40-41, 679 P.2d 1204, 1206-07. Accord Stewart v. Fisher (1989), 235 Mont. 432, 437, 767 P.2d 1321, 1324; Cosner v. Napier (1991), 249 Mont. 153, 154-55, 813 P.2d 989, 990-91. Here, defense counsel moved for a mistrial immediately after Newbauer injected Hinebauch’s insured status into the case. Defense counsel’s motion was, however, opposed by Newbauer and was denied by the trial court. Notwithstanding that Newbauer subsequently changed her mind and requested that the court strike the offending testimony and give a cautionary instruction, we conclude that her objection was neither contemporaneous nor immediate as required by the case law.
¶20 Finally, even were we to determine that the District Court erred in refusing Newbauer’s motion to strike and to give the cautionary instruction, such error was harmless. Again, it is well established that no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless. Rafanelli v. Dale (1996), 278 Mont. 28, 48, 924 P.2d 242, 254-55 (citation omitted). Reversal cannot be predicated upon an error in the admission of evidence, where the evidence in question was not of such character to have affected the result in the case. Mason v. Ditzel (1992), 255 Mont. 364, 371, 842 P.2d 707, 712 (quoting Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 834).
¶21 Here, the jury determined that while both Newbauer and Hinebauch were negligent, Hinebauch’s negligence was not the cause of Newbauer’s injuries. The jury never reached the issue of damages. If the mention of insurance had in some way influenced the jury in their assessment of the case, it would have been in the area of damages and not on the issue of causation. Newbauer argues that Hinebauch built his case around the theory that she was a gold digger and that the mention of insurance prej udiced her by fitting into this theory. This argument is speculative at best, however. The jury never reached the issue of damages. There was no significant impact upon the result of the case, and, thus, Newbauer has failed to demonstrate substantial injustice. In short, even if the court erred, it was harmless. Rafanelli, 278 Mont. at 48, 924 P.2d at 255.
¶22 We hold that the court did not manifestly abuse its discretion in denying Newbauer’s motion for new trial.
¶23 Affirmed.
JUSTICES HUNT, REGNIER, GRAY and LEAPHART concur.
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 Michael S. Blythe appeals from the judgment of the Workers’ Compensation Court that he is not disabled and is not entitled to compensation or benefits for his January 1989 industrial accident. We affirm.
¶2 The issues are:
¶3 1. Whether the Workers’ Compensation Court erred by not giving the most weight to the opinion of the treating physician.
¶4 2. Whether the court erred in finding that Blythe feigned his illness.
¶5 On January 29, 1989, during his employment as a respiratory therapist, Blythe was stuck with a needle containing blood contaminated with theAIDS virus (HIV) and Hepatitis B. The uncontroverted medical testimony was that if Blythe had been infected with HIV, he would have tested positive for the virus within three to six months after the needle stick. Fortunately, Blythe has consistently tested negative for HIV.
¶6 EBI/Orion Group (EBI) was the insurer for Blythe’s employer, Missoula Community Medical Center (the hospital). Immediately after the needle stick, EBI accepted liability and began paying Blythe temporary total disability benefits under a reservation of rights. In January 1992, Blythe brought a district court action against the hospital and Radiometer America, Inc., the manufacturer of the needle with which he was stuck. That case resulted in this Court’s decision in Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 866 P.2d 218, that an injury and accident had occurred and that the Workers’ Compensation Act provided the exclusive remedy.
¶7 In 1994, EBI petitioned the Workers’ Compensation Court to determine whether Blythe suffered any psychological condition caused by the physical injury in the workplace and whether he suffers from a resulting permanent disability. Blythe counterclaimed, alleging a causal connection and permanent total disability. He contends that he suffers from a schizoaffective disorder caused by the stress of worrying about contracting AIDS from the needle stick injury.
¶8 After a three-day trial in July 1995, the Workers’ Compensation Court entered findings, conclusions, and a judgment that Blythe had fabricated and feigned mental illness and was not disabled. Blythe appealed. This Court reversed on grounds that an independent medical examination of Blythe conducted at the request of EBI was performed by a clinical psychologist who was not licensed to practice in Montana and therefore was not authorized to perform an independent medical examination under the applicable statutes. EBI/Orion Group v. Blythe (1997), 281 Mont. 50, 931 P.2d 38 (Blythe I). We remanded to allow the Workers’ Compensation Court to reconsider the evidence without the testimony from that expert witness.
¶9 After reviewing the remaining record, the Workers’ Compensation Court again determined that Blythe is not disabled on account of his January 1989 work injury and is not entitled to further benefits from EBI. Blythe appeals.
Issue 1
¶10 Did the Workers’ Compensation Court err by not giving the most weight to the opinion of the treating physician?
¶11 Dr. William Stratford, a Missoula, Montana board certified psychiatrist, treated Blythe from October of 1989 through the time of trial. Dr. Stratford diagnosed Blythe as suffering from a schizoaffective disorder or schizoaffective schizophrenia, which he treated with counseling and various psychotropic medications. At trial, Dr. Stratford testified extensively on Blythe’s behalf. In Dr. Stratford’s opinion, Blythe is not malingering mental illness. Dr. Stratford farther opined that Blythe’s mental illness was precipitated by the needle stick incident and is totally disabling.
¶12 In remanding this case, this Court stated that the Workers’ Compensation Court was to “reweigh[] ... the evidence as to malingering; contrasting the testimony of Blythe’s experts, including Dr. Stratford, with the testimony of EBI/Orion’s remaining expert, Dr. Faust.” Blythe I, 281 Mont. at 57, 931 P.2d at 42. Blythe points out that this Court has often held that, as a general rule, the opinion of a treating physician is accorded greater weight than the opinions of other expert witnesses. E.g., Blythe I, 281 Mont. at 57, 931 P.2d at 42. That remains the general rule.
¶13 However, this Court has also held that
a treating physician’s opinion is not conclusive. To presume otherwise would quash the role of the fact finder in questions of an alleged injury. The Workers’ Compensation Court, as the finder of fact, is in the best position to assess witnesses’ credibility and testimony.
Kloepfer v. Lumbermen’s Mut. Cas. Co. (1996), 276 Mont. 495, 498, 916 P.2d 1310, 1312. It is the function of a finder of fact to weigh the credibility of both non-medical and medical evidence. See Burns v. Plum Creek Timber Co. (1994), 268 Mont. 82, 885 P.2d 508.
¶14 On remand, the Workers’ Compensation Court described its function as not limited to merely reweighing the testimony of Dr. Stratford against that of EBI’s remaining expert witness, Dr. Faust. The court determined that its task also included consideration of Blythe’s credibility, since Dr. Stratford’s opinions rested largely on what Blythe had told him. The court reasoned:
While Dr. Stratford genuinely believed the claimant, his belief is not binding on this Court, otherwise the fact-finding function vested in the Court would be usurped by a physician whose principal duty is to his patient and who does not have the full benefit of all of the evidence presented in a courtroom.
We agree. The District Court’s interpretation of the law is consistent with Kloepfer and with longstanding precedent concerning the function of a finder of fact.
¶15 We therefore hold that the Workers’ Compensation Court did not err in its weighing of Dr. Stratford’s opinion that Blythe was not malingering against the other evidence presented.
Issue 2
¶16 Did the court err in finding that Blythe feigned his illness?
¶17 The court’s findings on this matter appeared at the end of its extensive and detailed findings of fact. The relevant findings were:
92. Numerous facts support a conclusion that claimant is malingering and untruthful concerning his mental state. The number and nature of the atypical features of claimant’s alleged mental disorder were extraordinary. The evidence presented to the Court showed that claimant falsely answered psychological tests in a deliberate effort to “fake bad” and that he is knowledgeable concerning psychological matters and capable of fabricating and feigning psychiatric symptoms. From virtually the moment of the needle stick, he has been intent on pursuing legal action on account of his injury. His reports to Dr. Stratford concerning his activities were sometimes incomplete or exaggerated. In the Court’s assessment, his explanations at trial were smoothly delivered but often incredible and unbelievable.
93. After reviewing and carefully considering all of the evidence in this case, I find that claimant’s mental illness is malingered. I further find that he is not suffering from a schizoaffective disorder or any other psychotic diagnosis. While he may well have some depression, that is a life-long problem and a personality characteristic which is not attributable to the industrial accident.
94.1 find that claimant is able to work as a respiratory therapist and that his case for disability was fabricated.
This Court reviews findings of fact by the Workers’ Compensation Court to determine whether they are supported by substantial credible evidence. Best v. State Compensation Ins. Fund (1996), 276 Mont. 302, 306, 916 P.2d 108, 110.
¶ 18 Blythe testified at trial as to the circumstances of the needle stick and his condition following the incident. He read from diaries which he had regularly kept since that time, and which were introduced into evidence. Blythe stated that, as a result of the needle stick, he had initially suffered anxiety attacks and depression. He testified that he later experienced auditory, visual, gustatory, tactile, and olfactory hallucinations. Blythe continued working at the hospital for approximately two years after the needle stick, but did not return to work after a March 1991 confrontation with his supervisor.
¶19 Blythe also testified as to his educational background, which included bachelors’ degrees in psychology and sociology, associate of science and medical science degrees, and two associate of arts degrees. Blythe’s college credits included the study of mental disorders. At the hearing, he testified that he was working on two liberal arts degrees and had been accepted into graduate school for a guidance and counseling program.
¶20 Dr. Stratford admitted that Blythe’s highly irregular scores on the validity scales of two versions of the MMPI personality test indicated a strong possibility that he was faking or malingering. While admitting that it was possible that Blythe was in fact malingering, Dr. Stratford nevertheless explained those scores as a result of Blythe’s idiosyncratic way of analyzing matters. He characterized Blythe as a “very unusual character” with “nitpicking qualities.”
¶21 EBI presented expert witness Dr. David Faust, a clinical psychologist and professor of psychology at the University of Rhode Island. Dr. Stratford acknowledged that Dr.Faust was a nationally-known expert on neuropsychology. Dr. Faust had reviewed the results of Blythe’s psychological tests and other materials and had observed Blythe’s trial testimony. In Dr. Faust’s view, although Blythe had been “a troubled person for a long period of time,” he was not unable to work and did not suffer from a serious schizophrenic-type disorder. Dr. Faust based his opinion not only on Blythe’s atypical MMPI validity scores, but also on the atypical symptoms of mental illness presented by Blythe, including late age at onset, delay in onset after the traumatic incident, and the reported combination of types of hallucinations. Dr. Faust also described numerous inconsistencies and implausibilities which he observed in Blythe’s statements in the records he reviewed and at trial. Dr. Faust testified that, in his opinion, Blythe was malingering a mental disorder. He commented, in fact, that he had “never seen a case in which the evidence [of malingering] seemed so overwhelming” as in this case.
¶22 Blythe asserts that Dr. Faust violated the standards of his profession by rendering an opinion without having personally conducted an examination of him. Dr. Faust testified as to this matter. He stated that the ethical guides are often ambiguous, as in this instance where two ethical considerations were in conflict: one, that the professional should use the best available scientific tools; and the other, that the professional should do a personal examination of the subject. Dr. Faust testified that the necessary psychological tests had been done and he was able to evaluate the results of those tests as to Blythe. He further testified that he considered doing a personal interview, but given that all the relevant tests had been done and the results were available to him, and given also that the literature did not support doing an unstructured interview with Blythe as a means which would increase the accuracy of his judgment, he decided to follow the ethical guideline of using the best available scientific tools (the results of tests which were already available to him).
¶23 Blythe also presented testimony from an expert witness who examined him at Dr. Stratford’s request in 1992, Missoula licensed clinical psychologist Dr. Herman Walters. Dr. Walters testified that there are four situations in which one should be particularly attuned to the possibility of malingering: when the psychological examination takes place in a medical/legal setting; when the symptom picture presented seems to be substantially beyond what is available by way of objective data; when the individual does not seem to be complying with and participating in treatment; and when the individual has a diagnosis of antisocial personality disorder. On cross-examination, Dr. Walters admitted that malingering was a possibility in this case because at least two of the four situations — medical/legal setting and symptoms beyond what is available by objective data — and possibly a third — noncompliance in and nonparticipation with treatment— were present.
¶24 Blythe also argues that the court did not adequately consider the possibility that, although he was malingering, he was also suffering from mental illness which made it impossible for him to work. Dr. Faust addressed that issue rather extensively in his testimony. He opined that it would be very difficult for someone with a serious mental disorder to produce the kinds of test results Blythe obtained on the MMPI’s, and that Blythe’s activities were inconsistent with someone as mentally ill as his MMPI scores indicated. Further, Dr. Faust stated that the symptoms Blythe reported did not match up with his behavior in a number of respects:
For example, if a person is constantly hearing voices, constantly seeing things, having all of these delusions, I mean, this is not a subtle thing. This person cannot be at work a year and a half tending to life and death matters.
¶25 The Workers’ Compensation Court set forth other evidence supporting a finding that Blythe was malingering. The testimony of Blythe’s friends and co-workers conflicted as to whether changes in his behavior after the needle stick supported his claimed mental disorder. Several co-workers testified that there had been no change in Blythe’s behavior and that he had always been intellectual, antisocial, and cynical, with “a fatalistic negative attitude.” The court noted that Blythe’s diary entries beginning within two days after the needle stick incident demonstrated his anger at the hospital and preoccupation with filing a lawsuit — “The element of secondary gain was ... fully present.” Class notes taken by Blythe in a class on AIDS after the needle stick referred in several places to the possibility of litigation and a large settlement in his case. The court further noted that the acknowledged deterioration in Blythe’s job performance after the needle stick could be explained by his demonstrated anger and hostility toward the hospital and his supervisor.
¶26 Evidence from witnesses including Blythe himself established that Blythe’s statements to Dr. Stratford about a post-needle stick decline in his educational pursuits were exaggerated — there had not been a dramatic decline, as Blythe had led Dr. Stratford to believe. As to symptoms of mental illness, the court found that Blythe did not make any notations in his meticulous diary that he was suffering from hallucinations until just before he first saw Dr. Stratford in October 1989, whereas he told Dr. Stratford that he had been hallucinating for months, since thirty days after the needle stick. Blythe’s diary further contained numerous notations supporting the Workers’ Compensation Court’s finding that he had a “preoccupation with launching a lawsuit” to recover damages as a result of the needle stick.
¶27 The Workers’ Compensation Court made extensive findings on these and other factors which led it to determine that Blythe’s mental illness was malingered. After reviewing the record, we conclude that substantial credible evidence supports the Workers’ Compensation Court’s findings that Blythe feigned his illness.
¶28 We affirm the decision of the Workers’ Compensation Court.
JUSTICES NELSON, GRAY and LEAPHART concur.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In March, 1910, W. A. Longley agreed to convey to Thomas E. Laughery nineteen lots in Laurel, and, in consideration thereof, Laughery agreed to convey to Longley the Miller ranch " in Carbon county. Longley made his conveyance, but Laughery, being unable at the time to comply with his part of the contract, conveyed to Longley another ranch known as the “Laughery” ranch. The conveyance was by deed absolute in form. At the same time an agreement in writing was entered into between these parties, which recited in effect that the Laughery ranch had been transferred as security for the performance by Laughery of his obligation under the original agreement, and further provided that if Laughery should acquire title in fee simple to the Miller ranch and tender a deed therefor or the cash equivalent, on or before December 19, 1911, then the tender should be accepted and Longley should thereupon deed back the Laughery ranch. This agreement was signed by both parties, was acknowledged by Laughery only, and was filed for record and recorded on February 20, 1912. In the meantime Laughery leased the Laughery ranch from Longley-, and Longley on January 29, 1912, sold the same ranch to the Yellowstone Land & Grain Company. On March 9, 1912, the Yellowstone Land & Grain Company conveyed the Laughery ranch, by warranty deed, to plaintiff, Lee. Laughery thereafter asserted title to the land, and this action was instituted.
The complaint contains two so-called causes of action — one to quiet title, the other in ejectment. The answer contains certain admissions and denials not now material, and an affirmative defense in which is recited the transactions between Longley and Laughery, followed by allegations to the effect that the deed and contract constituted a mortgage, that no proceedings for its foreclosure had been instituted, and that the Laughery ranch was at all times of much greater value than the Miller ranch. There was reply to the new matter, and upon a trial to the court without a jury the issues were determined in. favor of plaintiff. From an order denying him a new trial, defendant appealed.
The findings made by the lower court refer to the deed and contract, to the conveyance to the Yellowstone Land & Grain Company, and to the deed to plaintiff. There is a finding that plaintiff obtained title without notice of any claim by defendant except such as might have been conveyed by defendant’s possession; that defendant had secured a lease of the Laughery ranch from Longley; and that he had not performed or offered to perform the condition imposed upon him by the contract. The court concluded:
(1) That the contract between Longley and Laughery was an agreement on the part of Longley to reconvey on condition to be performed by Laughery within a specified time, and that, by reason of Laughery’s failure to perform or offer to perform, he could not assert any claim to or interest in the Laughery ranch.
(2) That defendant had held possession by virtue of a lease.
(3) That the leasehold interest had terminated; and
(4) That plaintiff is owner of the Laughery ranch, and his title thereto should be quieted.
The judgment establishes title and right of possession in plaintiff and awards him possession and his costs. It then proceeds to declare that the claim of defendant is invalid, and he is enjoined from further asserting it.
1. The complaint does not state a cause of action to quiet title. It is nowhere alleged that plaintiff is in possession or that the land is unoccupied. If the Laughery ranch was held adversely to plaintiff, then ejectment furnished a plain, speedy and adequate remedy. Either possession by plaintiff or the fact that the land is unoccupied is an essential ingredient of the action to quiet title (Montana Ore Pur. Co. v. Boston & Montana Co., 27 Mont. 288, 70 Pac. 1114; O’Hanlon v. Ruby Gulch Min. Co., 48 Mont. 65, 135 Pac. 913); and it is necessary that the one fact or the other be made to appear by appropriate allegation (32 Cyc. 1352). In the so-called second cause of action, it is alleged that defendant is in possession, and this of itself is sufficient to defeat plaintiff’s right to relief in equity.
2. There are in the complaint sufficient allegations to state a cause of action in ejectment, and it is not contended, and could not be, that plaintiff did not make out a prima facie case upon that theory. When Laughery conveyed the land to Longley by deed absolute in form, he placed it within the power of Longley to convey a fee-simple title to anyone who paid value without notice of Laughery’s outstanding claim, and upon the pleadings and undisputed evidence the court had before it, at the close of plaintiff’s case, a- perfect chain of title from Laughery to Lee, and therefore plaintiff acquired an absolute title, even though the land was encumbered by mortgage, unless he had notice of the mortgage.
' 3. The burden was upon the defendant to overcome this prima facie case, and this he sought to do, first, by an attempt to show that Lee purchased with actual knowledge of the outstanding equity; but upon the conflicting testimony the trial court determined the issue in plaintiff’s favor, and the evidence fully sustains the finding.
4. In the second place, defendant relied upon the recordation of the Longley-Laughery contract as imparting constructive notice. By the terms of that agreement Longley was the party to be charged. He agreed that if a tender was made of a sufficient deed to the Miller ranch, or its cash equivalent, he would accept the tender and reconvey the Laughery ranch. It is . elementary that, in order that the recordation of an instrument shall impart constructive notice, the instrument itself must be one which the law authorizes to be recorded. Section 4646, Revised Codes, provides that, before an instrument can be recorded,- its execution must be acknowledged by the person executing it. (The exceptions to the rule are not involved here.) According to defendant’s own theory, he conveyed the Laughery ranch to Longley by deed absolute, received back Longley’s contract to reconvey, and that the two instruments constituted a mortgage. Laughery’s signature to the contract -added nothing to it, and his acknowledgment of its execution was equally without force or effect. We have presented, a ease analogous to that of a deed acknowledged by the grantee alone. Since Longley was the party bound by the contract, he was the “party executing it,” within the meaning of section 4646 above; and, since he did not acknowledge its execution, it was not entitled to be recorded, and its recordation imparted no constructive notice whatever. (Baum v. Northern Pac. Ry. Co., ante, p. 219, 175 Pac. 872.)
The record lends much support to the court’s conclusion that the Longley-Laughery contract was merely an agreement on the part of Longley to reconvey upon condition to be performed by Laughery within a given time; but defendant’s position is not improved, if we accept his theory that the deed and contract constituted a mortgage, since plaintiff had' no notice, actual or constructive, of the existence of such mortgage.
5. It was not necessary for plaintiff to prove, in the first instance, that he paid an adequate consideration for the Laughery ranch. The deed from his grantor furnished presumptive evidence of a consideration (sees. 5010 and 7962 [39], Rev. Codes), and the burden of showing want of consideration sufficient to support it was upon the defendant who sought to invalidate it, or to avoid the effect it otherwise would have (sec. 5011, Rev. Codes). It does not appear from plaintiff’s testimony that he did not pay an adequate consideration, and defendant offered no evidence on the subject.
6. It is suggested by appellant that there is not any evidence that Lee’s deed was ever recorded. The record recites that his deed was offered and received in evidence, but it is not contained in the transcript. If it were before us, it would doubtless disclose whether it had been recorded. The burden of preparing the bill of exceptions was upon defendant in the lower court, and the burden of showing error is upon him in this court. The recital in the certificate that the bill of exceptions contains all the evidence cannot avail in the face of an affirmative showing that it does not.
•7. It cannot be said that this cause was tried as a suit in equity. - The record is equally consistent with the theory that plaintiff relied upon his complaint in ejectment and defendant upon his equitable defense; and even though it be conceded that the trial court erred in its theory in deciding the case — and this is not entirely clear — the record discloses that the same result must have been reached if a correct theory had been adopted. In other words, upon the record made, the plaintiff was entitled to a judgment that he is the owner of the Laughery ranch, entitled to its possession and to Ms costs; and, since the 'judgment is sufficient, any additional recitals in it should be treated as surplusage.
The order is affirmed.
''Affirmed.
Mb. Chief Justice Brantly concurs.
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] |
MR. JUSTICE HOLLOWAY
delivered tbe opinion of tbe court.
This suit was instituted to bave determined tbe relative rights of the parties to certain irrigating ditches. Plaintiffs prevailed, and defendant appealed from tbe judgment and from an order denying bis motion for a new trial.
There is no substantial conflict in the evidence. Stated in general terms, the record discloses that William Scott, Magnus Johnson and Peter Madson settled upon and inclosed certain unsurveyed, unappropriated public lands in Meagher county; that Scott’s inclosure was immediately north of the inclosure of Johnson and Madson, and separated from them by a division fence; that the lands are arid and require artificial irrigation; that about 1886 Scott appropriated 600 inches of water from Sheep Creek, and constructed a main ditch running westerly from the creek to convey water upon the lands which he had inclosed; that about 1890 he sold to Johnson and Madson an undivided half interest in his water right and in his main ditch at least from the headgate to a point near his corral; that at this point a lateral ditch was constructed to convey water upon the Johnson and Madson inelosures; that later two other lateral ditches were constructed — lateral No. 2 tapping the main ditch a short distance west of the corral, and lateral No. 3 tapping the main ditch a considerable distance farther west; that a sub-lateral was constructed from lateral No. 3; that all these ditches were'constructed and used before the government surveys were made; that lateral No. 3 and the sublateral were designed to be used, and were used, originally, to irrigate lands within the Johnson and Madson inelosures; that when the lands were surveyed by the government in 1898 it was ascertained that the several parcels of land mentioned did not conform to legal subdivisions; that the fence which separated the Scott claim from the Johnson and Madson claims was moved south to the quarter-section line, with the result that a strip of land theretofore within the Johnson and Madson inclosure became a part of the Scott claim; that a county road was opened between the claims; that plaintiff Lowry is the successor in interest of Johnson and Madson; that defendant is the successor in interest of Scott; that the other plaintiffs are lessees of plaintiff Lowry, and that lateral No. 1, or “Lowry Branch,” is not involved in this controversy, it being conceded to belong to plaintiff Lowry.
As we understand the record, the court found that the several ditches to which reference is made in the testimony of the witnesses are correctly represented by a map (Defendant’s Exhibit “A”), which is here reproduced with the addition of certain figures to identify the ditches with greater particularity:
On the map to which reference is made, lateral No. 1 is designated “Lowry Branch” and lateral No. 2 is marked ‘(Carrier Ditch.”
The issues raised by the pleadings are whether plaintiff Lowry owns or is entitled to use the main ditch from A to B, and whether she owns or is entitled to use lateral No. 3 and the sublateral. In her complaint she claims title to them: First, by virtue of the fact that they were constructed by her predecessors in interest over unsurveyed public lands; and, second, by virtue of adverse use.
The court found that the laterals in dispute were constructed by Johnson and Madson to irrigate lands within their inclosures, some of which lands fell within the defendant’s claim when the survey was made and the fence removed to the quarter-section line. The court further found that for more than fifteen years prior to the commencement of this action plaintiff had been in the open, notorious, continuous and adverse use of said laterals under a claim of right, and that for more than ten years prior to the commencement of this action defendant, Car rier, had used the main ditch and laterals other than lateral No. 1. The court concluded that plaintiff Lowry and defendant each owns an undivided half interest in “said ditch, laterals and sublaterals as they pass through the premises of defendant. ’ ’
The decree awards to plaintiff Lowry an undivided half interest in certain ditches and an easement in the lands of defendant through which the ditches run.
Defendant complains of rulings of the court excluding evidence, of certain findings, and of the decree.
1. Upon the trial defendant sought to show the limited amount of water which had been or could be used upon plaintiff Lowry’s lands and the amount used and necessary to be used on defendant’s land, but the court excluded the evidence.
The respective water rights of these parties were not involved directly, but if plaintiff Lowry had grounded her title to the ditches in controversy upon prescription exclusively, the evidence would have been material. The extent of an easement acquired by adverse user is measured by the extent of the use. (Sec. 4512, Rev. Codes; 9 R. C. L. 788, and cases cited.) The court decreed to each party a one-half interest in the ditches, without reference to the extent of the use of them by either. Plaintiff pleaded title by prescription, but relied also upon the fact that the ditches had been constructed by her predecessors at a time when the land over which they were constructed and now owned by defendant was open, public land of the United States, and the evidence given by defendant himself fully sustains this latter theory.
Sections 2339 and 2340, United States Revised Statutes (U. S. Comp. Stats., sees. 4647, 4649), in effect grant to the owner of a water right the right to construct ditches over the public lands for the purpose of conducting water for irrigation purposes, and in effect declare that the subsequent entryman on such lands takes them burdened with the easement. (Cottonwood Ditch Co. v. Thom, 39 Mont. 115, 101 Pac. 825, 104 Pac. 281.) Upon the undisputed evidence, Johnson and Mad-son became the owners of lateral No. 3 and the sublateral by virtue of the fact that they constructed them on public land, and as such owners they were entitled to use them, and the extent of their use was of no concern to defendant, in the absence of a showing of abandonment. Evidence of limited use or of nonuser would not alone establish abandonment (Moore v. Sherman, 52 Mont. 542, 159 Pac. 966), and upon this theory of the case, the offered evidence was immaterial.
"While it was permissible for plaintiffs in their complaint to present their claim to these ditches in different counts, each founded upon a different theory to meet the exigencies of the case as disclosed by the evidence (Blankenship v. Decker, 34 Mont. 292, 85 Pac. 1035), it was not possible for them in this instance to maintain both theories, for they are incompatible; yet the court finds that both theories are sustained by the evidence. If lateral No. 3 and the sublateral were constructed by Johnson and Madson over public land, their right to the ditches was confirmed by the government which owned the land; and, in the absence of abandonment, they could not thereafter acquire the same character of title bj adverse user.
Use by a party of his own property is never adverse in the sense that the term “adverse” is employed in the law of prescription. “Adverse possession is the open and hostile possession of land under a claim of title to the exclusion of the true owner.” (1 Words and Phrases, Second Series, 136; Scallon v. Manhattan Ry. Co., 185 N. Y. 359, 7 Ann. Cas. 168, 78 N. E. 284.)
We are confronted by a decree founded upon theories altogether inconsistent; but this is a suit in equity. The evidence in its entirety is before us, and we are authorized by section 6253, Revised Codes, to dispose of the cause on its merits. (Pew v. Johnson, 35 Mont. 173, 119 Am. St. Rep. 852, 88 Pac. 770.) If the theory of adverse user be adopted, a new trial must be ordered (1) for the error of the court in excluding evi dence of the extent of the use; and (2) because the evidence is insufficient to sustain the finding that plaintiff Lowry acquired a one-half interest. But the evidence is sufficient to sustain the findings to the effect that title to lateral No. 3 and the sublateral was acquired by virtue of the fact that those ditches were constructed by Johnson and Madson over public land and that plaintiff Lowry succeeded to their rights, and we adopt this theory of the ease. It involves the elimination from finding No. 7 of all reference to the adverse use of these ditches by plaintiff Lowry and her predecessors in interest.
Complaint is made also that the court refused to permit [7] defendant to show that all of plaintiff Lowry’s irrigable land can be watered successfully from the “Lowry Branch.” The ruling was correct upon either theory of the case indicated above. If plaintiff Lowry acquired an interest in lateral No. 3 and the sublateral, either by grant or prescription, she cannot be compelled to surrender that property right because its function can be performed by other property which she owns.
2. Defendant cannot complain that the court found that Johnson and Madson constructed lateral No. 3 and the sublateral. His own testimony, given on cross-examination, establishes the-fact beyond controversy. Neither can he object that the court awarded to plaintiff Lowry an undivided half interest in those ditches, for upon the theory of the case now under consideration, the court might have awarded them to her in their entirety. She, however, does not complain of the limited interest decreed to her, nor of the fact that the decree does not, in express terms at least, award her any interest in the main ditch between points A and B.
It is not made plain upon what theory the court granted to defendant an undivided half interest in lateral No. 3 and the sublateral. Assuming that these ditches belonged to plaintiff Lowry and her predecessors from the date of their construction, they remained her property after she succeeded to the interests of Johnson and Madson, unless she abandoned them in whole or in part, or unless defendant acquired an interest in them by prescription, and the evidence does not sustain either of these alternatives; furthermore, defendant does not claim that he acquired title by adverse user, but, on the contrary, he denies that plaintiff Lowry or her predecessors ever had any interest in any lateral or sublateral other than lateral No. 1, the “Lowry Branch.” However, as neither party complains of the decree in the particulars just mentioned, we refrain from further comment upon them.
3. Lateral No. 3 and the sublateral were constructed to [8] irrigate lands originally within the Johnson and Madson Enclosures, but the fact that a portion of those lands fell within the lines of defendant’s claim when the survey was made and the division fence was moved did not operate to divest plaintiff Lowry of her title to the ditches or invest defendant with title to them.
i. In its conclusion of law No. 2 the court declared that plaintiff Lowry “is entitled to the right to use said ditch, laterals and sublaterals as they pass through the premises of the defendant.” The language is indefinite, but sufficiently comprehensive to include ditches not in controversy, and to which plaintiff Lowry neither has nor claims any right. The decree awards to Mrs. Lowry “an undivided one-half interest in the lateral ditches mentioned and described in her complaint” and “an easement in the land of defendant through which said ditches run,” and then, as if to identify with minute particularity the ditches referred to, the decree continues: “The said ditches being the ones west of the first lateral tapping the main ditch which takes water to the land of the plaintiff Emma M. Lowry, the said ditches being about three feet wide on top and about two feet deep, and each being about 600 feet in length as they run through defendant’s land.” The only ditches mentioned in the testimony which meet the description just given in any degree are laterals 2 and 3. There is not any finding that plaintiff Lowry has an interest in lateral No. 2, and such a finding cannot be implied, for there is not any evidence to support it, and, furthermore, it is not involved in this contro versy by tbe pleadings. The complaint describes but one lateral (No. 3) and one sublateral.
To the end that these parties may understand definitely their respective rights under the decree, a copy of the map (Defendant’s Exhibit “A”), with the laterals numbered as in the diagram herein produced, should be attached to and made a part of the decree, and the first paragraph of the decree should be amended to read as follows: “It is hereby ordered, adjudged and decreed that the said plaintiff Emma M. Lowry is now the owner, in the possession and entitled to the possession and use, of an undivided one-half interest in the lateral ditches mentioned and described in her complaint, to-wit, lateral No. 3 and the sublateral shown upon the map hereto attached and hereof made a part, and has an easement in the land of the defendant through which said ditches run, said land of defendant, being described as the south half of the northwest quarter of section 29, and the south half of the northeast quarter of section 30, township 12 north, range 7 east, in Meagher county, Montana. ’ ’
The order overruling the motion for a new trial is affirmed. The cause is remanded to the district court, with directions to modify the findings and decree in accordance with the views herein expressed, and, when so modified, the decree will stand affirmed. Each party will pay his own costs of these appeals.
Modified and affirmed.
Mr. Chief Justice Brantly and Mr. Justice Pigott concur.
|
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] |
MR. JUSTICE HOLLOWAY
delivered, tbe opinion of tbe court.
Tbe facts of tbis case are in all substantial particulars identical with tbe facts in Allen v. City of Butte, ante, p. 205, 175 Pac. 595. Upon tbe authority of that ease, tbe judgment herein is affirmed.
!Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Sanner concur.
|
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MR. CHIEF JUSTICE BRANTLT
delivered the opinion of the court.
On February 5 of this year, one Frank L. Riley filed a complaint in the district court of Silver Bow county charging that he had probable cause to believe, and did believe, that on January 30 intoxicating liquors had been and still were kept and deposited by Jim Prato and Anton Giacomo in a building situate on the north side of Daly Street, known as and called The American House, in the city of Walkerville, Silver Bow county, and that such intoxicating liquors had been and then were intended by the defendants to be sold, exchanged, given away, bartered or otherwise disposed of in violation of the laws of the state of Montana. Thereupon there was issued by the court a search-warrant directed to any peace officer of Silver Bow county, and commanding him, together with the necessary and proper assistants, to thoroughly search the premises described in the complaint, and, if any intoxicating liquors were found therein, to seize the same together with the vessels containing them, and all implements, furniture, fixtures and other articles used in connection therewith, and to keep them safely and securely until final action thereon. The officer was also directed to serve the warrant and return the same to the court with his .return indorsed thereon. On February 7 return was made by John F. Melia, a peace officer of Silver Bow county, showing that he had found and taken into his possession a large quantity of intoxicating liquors and had them in his possession. On the same day the court made and entered an order fixing February 19 at 10 o’clock A. M. as the time for hearing- upon the return to determine whether the liquors, etc., were being used or in any manner kept or possessed by any person with the intention of violating the laws of Montana relating to intoxicating liquors, when and where any person claiming any interest in them or in any part thereof, might appear and show cause, if any he had, why the same should not be adjudged forfeited according to law. On February 19, C. S. Wagner, Esq., appeared for the defendants and filed a demurrer to the complaint, the grounds of which were that the court had no jurisdiction of the persons of the defendants or of the subject of the action, that the complaint did not state facts sufficient to constitute a cause of action, and that the complaint did not state facts sufficient to constitute a public offense. The demurrer was overruled. Mr. Wagner thereupon filed a verified answer for the defendants which put in issue all the allegations of the complaint and alleged affirmatively that at all the times mentioned in the complaint, the defendants were the lawful owners and holders of the liquors, and that such liquors were wrongfully and unlawfully seized and removed from the premises of the defendants; that the defendants for a long time prior to December 31, 1918, had been duly and regularly licensed to carry on the business of retail liquor dealers at the place known as and called The American House described in the complaint, and until that date had lawfully carried on therein the business of retail liquor dealers; that they had lawfully purchased the liquors so seized, for the purpose of selling and disposing of them in the ordinary course of business; that these liquors consisted of and constituted the unsold portion of their stock in trade, all of which had theretofore been lawfully purchased and acquired as aforesaid; that on the thirty-first day of December, 1918, they dismantled their place of business and had removed therefrom all intoxicating liquors therein contained, and de posited the same in a cellar or vault upon the said premises in the rear of their place of business and securely locked the approaches to the same, so that they were securely kept from thence until the time they were seized; that the defendants each for himself averred that he had not sold, exchanged, given away, bartered or disposed of any of the liquors or compounds thereof capable of being used as a beverage, in the state of Montana or elsewhere; that he had not in any other respect violated the laws relating to the sale of intoxicating liquors; that defendants at all times since December 31 were lawfully occupying the premises described in the complaint, and that they had not jointly or severally or otherwise made, sold, exchanged, given away, bartered or otherwise disposed of any portion of said liquors contrary to law, and that no part thereof so seized had ever been used in any manner, or kept or possessed by the defendants, or any other person or persons or at all, with the intention of violating any of the provisions of the laws of Montana. At the same time the defendants made written demand for a jury trial. This demand was by the court denied. Thereupon the hearing upon the return was set for March 1.
On February 21 an application was made to this court for a writ of certiorari to annul the order of the court overruling the demurrer and also the order denying the defendants’ motion for a trial by jury. At the hearing the attorney general in response to the writ, presented a certified copy of the proceedings and filed a motion to quash the writ and dismiss the proceeding on the grounds that the district court had jurisdiction to make the orders, and that relators have a plain, speedy and adequate remedy by appeal. The motion must be sustained. ,
The proceeding was instituted under the provisions of [1] Chapter 143, Laws of 1917 (Laws 1917, p. 239) commonly known as the Enforcement Act. Section 7 of that Act authorizes any district court on application by sworn complaint by any person, from which it appears that there is probable cause to believe that intoxicating liquor is being sold, exchanged, given away, bartered or otherwise disposed of, or kept contrary to law, to issue a warrant directed to any peace officer of the county ordering him to search the premises described in the complaint, and to seize all intoxicating liquors there found, together with the vessels in which they are contained, and all. implements, furniture, fixtures and other articles used or kept for the sale, barter, giving away or otherwise disposing of such liquors, and to safely keep the same and make return thereof within three days showing all acts and things done by him, with a particular statement of all liquors, etc., and other articles seized, and the name of the person or persons in whose possession the same were found.. The person or persons found in possession of such liquors must be served with a copy of the warrant.
Section 8 provides that when the warrant is returned the court shall fix a time, not less than ten nor more than twenty days thereafter,- for the hearing upon the return. The court is authorized to hear and determine whether or not the liquors or other articles so seized, or any part thereof, were used or in any manner kept or possessed by any person with the intention of violating any of the provisions of the law relating to intoxicating liquors. At the hearing any person claiming an interest in the property seized may appear and be heard upon filing a verified claim setting forth in particular the character and extent of his interest. The sworn complaint upon which the search-warrant was issued, and the possession of such intoxicating liquor and other articles shall be prima, facie evidence of the contraband character of said liquor, other articles, etc. The burden rests upon the claimant to show his interest and also that the liquors were not being kept with intent to violate any provision of law relating to intoxicating liquors. If upon the hearing the evidence warrants, or if no person shall appear as claimant, the court shall thereupon enter a judgment of forfeiture and order the liquors and other articles destroyed forthwith by the officers having custody of the same at the time of the adjudication; provided, however, the court may, in its dis cretion, appoint a special officer for the purpose of executing the judgment of forfeiture by destroying such liquors and property; and provided further, that if in the opinion of the court any of such forfeited property, other than intoxicating liquors, is adapted to any lawful use, such judge shall, as a part of the order and judgment, direct that such property, other than intoxicating liquors, be sold as upon execution by the officer having them in custody, and that the proceeds of such sale, after the payment of all costs of the proceeding, be paid into the common school fund of the school district in which the property was seized. A forfeiture, destruction or sale of any property under this section shall not be a bar to a prosecution under any other provision of law relating to intoxicating liquors.
It is apparent from the foregoing recital of the substance of the provisions of sections 7 and 8, that jurisdiction is conferred upon any district court to entertain and determine the proceedings therein provided for and that it terminates in a final [2] judgment. The proceeding has some of the aspects of a criminal action. It is not such, however, for, though properly prosecuted in the name of the state, the complaint charges no one with an offense. It is rather to be regarded as a proceeding in rem against the liquors, etc., for their condemnation as forfeited property, and the complaint is in the nature of a libel. (23 Cyc. 299; State v. Burrow’s Liquors, 37 Conn. 425; 2 Black on Judgments, sec. 799.) This is made apparent by the last sentence in section 8, for it declares that the forfeiture or destruction or sale of any property under the judgment, shall not be a bar to a prosecution under any other law relating to intoxicating liquors.
The requirement in section 7 that a copy of the warrant must be served upon the person or persons found in possession of the liquors seized, and the provision in section 8 permitting any person interested to appear and claim the liquors, etc., contemplate that when anyone does appear and make claim, a trial must be had of the question of title and whether or not the liquors were being kept or used by the claimant with the intention of violating the laws prohibiting the sale of intoxicating liquors. Such a trial is, for this purpose, a trial inter partes and necessarily results in a judgment affecting the rights of the state and the claimant from which either may appeal, under section 7098 of the Eevised Codes.
Under section 7203, certiorari may issue when the inferior tribunal, board or officer exercising judicial functions, has exceeded its or his jurisdiction and there is no appeal, nor any plain, speedy and adequate remedy. The fact that the complaining party has an appeal from the final judgment, precludes relief by this court by certiorari. (State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 Pac. 395; State ex rel. Weinstein Co. v. District Court, 28 Mont. 445, 72 Pac. 867; State ex rel. Davis v. District Court, 29 Mont. 153, 74 Pac. 200; State ex rel. Furnish v. Mullendore, 53 Mont. 109, 161 Pac. 949.)
Furthermore, it was within the jurisdiction of the district court to determine the sufficiency of the complaint and also to determine whether the defendants were entitled to a trial by jury. We do not concede that the court was in error in making either order. But conceding, for the purpose of this case only, that both of them were erroneous, the error did not divest it of jurisdiction in the sense that the proceeding became coram, non judice; otherwise every erroneous decision during the course of any proceeding would divest the court of jurisdiction. (Cases cited supra.)
The writ is set aside and the proceeding dismissed.
Dismissed.
Mr. Justice Holloway and Mr. Justice Cooper concur.
|
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On November 9, 1894, Charles Normandin died intestate in Deer Lodge (now Powell) county, leaving personal property of the alleged value of $4,800, and leaving, as his sole heirs at law, his wife and his daughter Agnes, then en ventre sa mere. There was never any administration of the estate, but a brother, Peter Normandin, immediately on the death of Charles, took possession of the property and converted it to his own use. On July 13, 1895, the daughter Agnes was born. In May, 1915, Peter Normandin died testate, and Marie Normandin was duly appointed and qualified as executrix of his last will and proceeded with the administration of his estate. In July, 1915, the daughter Agnes, then Agnes Haydon, presented to the executrix a claim for one-half the value of the property so converted. The claim was rejected and this action was commenced in September, 1915. From a judgment in favor of plaintiff, defendant appealed.
It is conceded by counsel for plaintiff that this action must be maintained, if at all, under and by virtue of the provisions of section 6462, Revised Codes, which section reads as follows: “Sec. 6462. For the purpose of computing the time within which an action must be commenced in a court of this state, by an executor or administrator, to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to re cover damages for taking, detaining or injuring personal property within the same period, the letters are deemed to have been issued within five years after the death of the testator or intestate. But where.an action is barred by this section any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of majority, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such disability, maintain an action to recover damages by reason thereof, in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator.” The statute was first enacted in this state as a part of the Codes and became effective on July 1, 1895, about seven months after the conversion took place and a few days prior to the birth of this plaintiff.
For the purpose of defining her civil rights and remedies, plaintiff is deemed to have been living at the time of her father’s death, although she was not born until eight months thereafter. (See. 552, Probate Practice Act, Comp. Stats. 1887; sec. 4834, Rev. Codes.) She enjoyed all the rights of inheritance conferred upon any living person. (14 Cyc. 39; 14 R. C. L. 216.) Since Charles Normandin died intestate, his property passed immediately upon his death to his wife and daughter, subject to the control of the probate court for the purposes of administration. (Sec. 532, Probate Practice Act, Comp. Stats. 1887.)
If section 6462 can be made applicable to a case of this character, then it must be conceded that plaintiff has brought herself within its provisions, since she labored under the disability of infancy until July, 1913.
Neither at common law nor under the statutes, in force prior to July 1, 1895, could an heir at law maintain an action for the wrongful conversion of property belonging to the decedent. The right of action was in the personal representative who was entitled to the possession of the property for the purpose of administration (secs. 127, 226 and 227, Probate Practice Act, Comp. Stats. 1887), and until there was a personal representative qualified to act, the statute of limitations did not commence to run. (25 Cyc. 1067.) But for section 6462 the plaintiff, upon reaching her majority, could have had an administrator appointed and an appropriate' action prosecuted for the conversion of this property. With this statute in force, however, she was confronted with the fact, when she became of age, that although there never was an administrator of her father’s estate, the law presumes that one was appointed within five years of his death, and any action which might have been prosecuted by a personal representative, was barred after seven years from November, 1894, or in November, 1901, — twelve years before she reached her majority.
It is the' contention of appellant that section 6462 creates a new cause of action in favor of the heir; that it is this new right of action which plaintiff seeks to enforce in this instance; that the statute cannot be given retroactive effect, and, since the property was converted before the statute was enacted, this action cannot be maintained. That argument leads to the conclusion that although plaintiff was wrongfully deprived of her property, she is without recourse, solely because of the fact that during the seven years succeeding her father’s death she was unfortunate enough to be an infant. It would be a reproach to the law to say that such a result could be consummated or that in enacting section 6462 the legislature ever intended such a consequence.
The history of the statute furnishes some evidence of its purpose. Section 6462 is practically a literal copy of section 392 of the Code of Civil Procedure of New York. (Code Civ. Proc., New York, 1876, p. 72.) Prior to its enactment it was held that the statute of limitations did not. commence to run until an administrator was appointed, no matter how long a period elapsed after the death of the intestate. (Bucklin v. Ford, 5 Barb. (N. Y.) 393.) The principle of that case was reiterated in Sanford v. Sanford, 62 N. Y. 553, de cided in 1875, and the following year section 392 was enacted. Later it came before the court for construction in Cohen v. Hymes, 64 Hun, 54, 18 N. Y. Supp. 571, and it was then held that its purpose undoubtedly was to limit the operation of the rule laid down in Bucklin y. Ford. In other words, the purpose of the statute was, by force of the presumption created, to fix definite points of time from which the statute of limitations would commence to run. It is to be observed, too, that section 392 is found in the New York Code as a part of Chapter IY, entitled “Limitation of the Time of Enforcing a Civil Remedy. ’ ’ When the section was adopted in our Code of Civil Procedure it was made a part of the statute of limitations under the title, ‘ ‘ General Provisions as to the Time of Commencing Actions.” This arrangement of the statutes is not a controlling consideration, but is indicative of the legislative intention.
Since the statute had been construed by the New York court before its adoption here, it will be held that our legislature adopted the construction as well as the text (Miller v. Miller, 47 Mont. 150, 131 Pac. 23), and that the purpose of its enactment was not to create a new cause of action, but to fix distinct points of time from which the statute of limitations begins to run.
It is true that the statute authorizes a person who theretofore labored under disability, to prosecute the action, but it does not create a new cause of action. The conversion by Peter Normandin gave rise tb a cause of action in favor of the administrator of Charles Normandin’s estate, but for the use and benefit, ultimately, of this plaintiff to the extent of her interest, and it is that same cause of action for that same interest which section 6462 authorizes this plaintiff to maintain. (Berry v. Kansas City, Ft. S. & M. R. Co., 52 Kan. 759, 39 Am. St. Rep. 371, 34 Pac. 805.)
Our conclusion is that section 6462 operates on the remedy alone; that it does not create a new cause of action; that it does not operate retroactively, but that it affects rights of ae tion which might have been enforced at the time it took effect. It is remedial in character and its application to the facts of this case works no hardship on defendant. Peter Normandin acquired no vested right in plaintiff’s property by converting it to his own use, and his estate is in no better position than he, to take advantage of his wrong. (36 Cyc. 1216.)
The judgment is affirmed.
'Affirmed.
Mb. Chief Justice Brantly and Mb. Justice Coopeb concur.
|
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MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff on or about September 23, 1934, while- he was riding with a stock shipment under contract with the defendant from Stanford, Montana, to St. Paul, Minnesota.
In his complaint plaintiff alleges that through the negligence of the defendant company and one of its locomotive engineers in their operation of the train in question, and while plaintiff was riding in the coach which was provided for himself and others accompanying the stock, the coach was carelessly, sud denly and violently jerked -in such a manner as to cause the plaintiff to be thrown qgainst the back of a seat, resulting in injuries causing total disability.
Defendant’s answer was in the form of a general denial and a plea of contributory negligence by reason of plaintiff walking or standing in the aisle without taking care to steady or safeguard himself.
Plaintiff produced four stockmen as witnesses, besides himself, who testified to a violent jolting or jar at the approximate time and place complained of, and to the fall as alleged by plaintiff, and his injury. Some eight other witnesses riding in the same coach testified on behalf of the defendant that there were no unusual bumps or jars not ordinarily associated with the running of a stock train. Various medical experts were called, some testifying that the disability of the plaintiff, due to a heart condition, could have resulted and probably would result from the fall, while others testified that it could not. By agreement the cause was dismissed as against the engineer who was not served with process.
The cause was submitted to the jury and resulted in the verdict for defendant. Thereafter plaintiff made a motion for new trial, and it was granted. In its order granting the new trial the court said: “In this action court this day ordered' that the plaintiff’s motion for a new trial be and the same is hereby granted for the reason the court submitted an erroneous instruction. ’ ’ This appeal is from the order..
Defendant specifies as error (1) that the court erred in granting plaintiff’s motion for a new trial, and (2) that it erred in finding that an erroneous instruction was given. The court in its order did not specify which instruction it deemed to be erroneous, but counsel seem to concede that the instruction in question is instruction No. 12, which is set out in full later.
In examining this cause this court is, of course, required to examine it in accordance with the rule often stated by this court, and which is found in the late case of Maki v. Murray Hospital, 91 Mont. 251, 7 Pac. (2d) 228, 230: “The granting, or refusal to grant, a motion for a new trial lies within the sound discretion of the trial court, and its order thereon will be reversed only for manifest abuse of that discretion.”
Plaintiff argues that instruction No. 12, as given, does not correctly state the law, and that it is sharply in conflict with instruction No. 23, which correctly states the law. Instruction No. 12 is as follows: “You are instructed that plaintiff was a passenger on a freight train of defendant, and as such passenger assumed the ordinary risks of injury from jerks incident to the movement of such train, and in order for plaintiff to recover for the injuries alleged to have been sustained by him from a jerk of said car while riding on said freight train, the plaintiff must prove by a preponderance of the evidence that such jerk was not only unusual, extraordinary, or unnecessary, but also that it was the result of defendant’s negligence, [Italics supplied], and if you find that plaintiff has failed to do this, your verdict must be in favor of the defendant.”
Plaintiff objected to the giving of instruction No. 12. At his request instruction No. 23 was given, and it is as follows: “You are instructed that if you find from the evidence that the train upon which Skelton was riding was jerked in an unusual or violent manner at the time and place complained of and not in the usual and ordinary manner incident to the operation of said freight train with the highest degree of care, the proof of such violent jerk is sufficient to warrant your finding that the defendant was guilty of negligence as alleged by the plaintiff. ’ ’
There is sharp conflict between instructions Nos. 12 and 23. By no means can instruction No. 12 be harmonized with instruction No. 23 and other instructions given. No. 23 instructs the jury that it may find for plaintiff if the train was jerked in an unusual and violent manner, and not in the usual manner incident to the operation of the freight train with the highest degree of care. No. 12 instructs specifically that before the jury can find for plaintiff something further must be proven, i. e., that the jerk ‘ ‘ was not only unusual, extraordinary, or unnecessary, but also that it was the result of defendant’s negligence.” This instruction required the plaintiff to prove the existence of negligence by something more than the severe jerk not incident to the operation of the train with the highest degree of care. If the jury followed No. 23 and other instructions given, proof of the violent jerk under the circumstances stated would be sufficient to warrant finding for the plaintiff; if it followed No. 12, proof of the jerk under the circumstances stated in instruction No. 23 would not be sufficient to warrant finding for plaintiff.
We cannot know which instruction the jury followed. The court properly granted a new trial. This court has passed on the matter of conflicting instructions a number of times. In Hageman v. Arnold, 79 Mont. 91, 254 Pac. 1070, 1072, the court said: “Moreover, the instruction is in conflict with instruction No. 3, which is correct. Both cannot be correct. The giving of conflicting instructions upon a material issue is reversible error. (Wray v. Great Falls Paper Co., 72 Mont. 461, 234 Pac. 486.) ” (See, also, Sullivan v. Metropolitan Life Ins. Co., 35 Mont. 1, 88 Pac. 401; Wells v. Waddell, 59 Mont. 436, 196 Pac. 1000.)
Defendant urges that, taken together, the instructions fairly state the law, and that even though No. 12 is erroneous, it is cured by the others given. Had No. 12 not been a complete instruction on the proof required to show negligence the argument might have merit, but this is not a case of an incomplete instruction which may be explained or made complete by other instructions, but it purports to state the law on the subject fully and specifically requires the finding of all the requirements therein stated to allow recovery for the plaintiff.
Defendant argues that instruction No. 12 correctly states the law when it requires proof that defendant was guilty of some specific negligent act, basing its argument on the contention that the plaintiff has made specific allegations of negligence by the allegation “that said defendants then and there failed and omitted to have such train under control; that said defendants then and there carelessly, recklessly and negligently, suddenly and violently jerked the said train, and particularly the car upon which plaintiff was riding. ’ ’ ■
Under the decision in Maki v. Murray Hospital, supra, it appears that the above allegation is general rather than particu lar, but even if it were treated as particular, under the rule stated in Hoskins v. Northern Pac. Ry. Co., 39 Mont. 394, 102 Pac. 988, 990, proof of negligence as defined in instruction No. 23 is sufficient, and the doctrine of res ipsa loquitur applies: “We hold that, as no duty rests upon a plaintiff, who is a passenger, to allege or prove in his affirmative case the particular cause of the derailment, allegations of specific causes in the complaint should be treated as surplusage, and he may rely upon his prima facie ease without attempting to substantiate them. The sufficiency of a pleading must be determined upon the facts from which the legal duty or liability is deduced.” (See, also, Maki v. Murray Hospital, supra.)
Instruction No. 12 was erroneously given and it does not state the law. (John v. Northern Pac. Ry. Co., 42 Mont. 18, 111 Pac. 632, 32 L. R. A. (n. s.) 85; Freeman v. Chicago etc. Ry. Co., 52 Mont. 1, 154 Pac. 912.) Instruction No. 23 correctly states the law and was properly given.
Plaintiff in his motion for a new trial questioned instruction No. 13, which states that the plaintiff by traveling on a stock train assumed the risks reasonably incident to the operation of that kind of train, and that if the jerk complained of was one of “the usual incidents” in the operation of such train he could not recover. Instruction No. 19 states that plaintiff can recover if the train upon which plaintiff was riding as a passenger was jerked so violently as to show want of the highest degree of care by the defendant. There is some conflict between these two instructions. Although apparently instruction No. 19 is intended to modify and explain instruction No. 13, some ambiguity may arise if they are given in the same form on another trial. To obviate any question the substance of the two instructions should be included in one.
The order granting the new trial was properly made and it is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur. ■
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MR. JUSTICE ARNOLD
delivered the opinion of the court.
This is an appeal from a judgment of the district court of Lewis and Clark county granting the plaintiff a divorce from the defendant on the ground of extreme cruelty. The court' awarded the plaintiff the custody of the minor child of the parties — a girl of the age of six years — and $25 a month for the child’s support. The court also awarded plaintiff certain personal property alleged to have been owned by the plaintiff but in the custody of the defendant.
The plaintiff made timely motion in this court to strike the bill of exceptions from the transcript on the ground that it was not prepared, served and filed within the time allowed by law. It appears that on May 22, 1939, the defendant was notified that his motion for a new trial had been denied,. Not until July 10, 1939, did he apply for and receive sixty days in addition to the time allowed by law to prepare, serve and file a bill of exceptions, as provided in section 9390, Revised Codes. It is obvious, therefore, that he obtained the extension too late, and we must sustain the motion to strike the bill of exceptions from the transcript. (O’Donnell v. City of Butte, 72 Mont. 449, 235 Pac. 707; Vicain v. City of Missoula, 107 Mont. 105, 81 Pac. (2d) 350.) We are, therefore, limited in our review to the remainder of the judgment roll.
Among the assignments of error which we may now consider is this: Did the court err in overruling the defendant’s objection to the introduction of evidence on the ground that the complaint does not state a cause of action 1
The allegations as to extreme cruelty consist of the following: “That defendant has been guilty of extreme cruelty of and toward this plaintiff by the infliction of grievous mental suffering upon plaintiff by a course of conduct toward and treatment of the plaintiff existing, and persisted in for a period of more than one year immediately before the 11th day of May, 1938, the date of the commencement of this action for divorce, which justly and reasonably is of such a nature and character so as to destroy the peace of mind and happiness of plaintiff and entirely to defeat the purpose and legitimate objects of marriage, and to render the continuance of the married relations between this plaintiff and defendant perpetually unreasonable and intolerable to the plaintiff and no longer endurable by her. ’ ’
The plaintiff then alleged that the specific acts of such cruelty consisted of the following: That the defendant had been neglectful of the plaintiff; that he did not obey the reasonable requests of plaintiff but would disregard her every wish and kept continually nagging her; that defendant would not repair or arrange the home as plaintiff desired in order that it be comfortable, convenient and satisfactory; that he refused to comply with plaintiff’s reasonable requests which made living in the home by the plaintiff uncomfortable, unsatisfactory and unbearable, and disturbed her peace of mind and happiness; that the defendant spent the greater number of evenings away from home and in a pool hall; that he refused to invite or have company in the home of the parties; that he continually found fault with purchases made by the plaintiff; that he was stingy and fault-finding otherwise; and that his conduct was arbitrary and tyrannical, which gave rise to quarrels in the home and thus disturbed and upset the plaintiff’s state of mind and happiness, and caused discomfort and damage to the well-being of the child of the parties.
While these allegations are a recital of petty differences and quarrels seemingly not of a serious nature, yet we believe that under the rule laid down in the Montana case of Williams v. Williams, 85 Mont. 446, 278 Pac. 1009, 1010, they are sufficient to warrant evidence of extreme cruelty. As was held in that case: “Each case must be determined upon its own peculiar facts, and it is well recognized by the authorities that an inclusive and exclusive definition of legal cruelty cannot be given. The courts have not attempted so to do, but generally are content with a determination as to whether the facts in the case considered constitute extreme cruelty. Whether the defending spouse has been guilty of extreme cruelty as defined by the statute is purely a question of fact to be determined from all the testimony presented. The particular acts of cruelty of which complaint is made are not in themselves determining factors, but the question is whether the acts of cruelty are of such a nature and character as to destroy the peace of mind and happiness of the injured party.” (See, also, Argenbright v. Argenbright, ante, p. 379, 101 Pac. (2d) 62; Putnam v. Putnam, 86 Mont. 135, 282 Pac. 855.)
The defendant specifies as error the refusal of the court to sustain his motion for a new trial. In support of his motion he stated that he was in possession of evidence which would establish a valid defense to the complaint. This evidence would show that plaintiff was not fit and proper to have the custody of the minor child of these parties. Defendant admits that he was cognizant of the existence of this evidence at the time of trial but felt impelled not to offer it out of deference to his wife and child. This is no ground for granting a new trial. If the defendant is able to substantiate his charge by competent evidence, he may by appropriate application bring the matter to the trial court’s attention, as a decree of divorce awarding custody of a minor child is always subject to modification on a proper showing, the welfare of the child being the paramount consideration. (Kane v. Kane, 53 Mont. 519, 165 Pac. 457; State ex rel. Floch v. District Court, 107 Mont. 185, 81 Pac. (2d) 692.)
The rule laid down by this court, and the courts of practically all other jurisdictions, that before a decree of divorce may be modified as to alimony there must be a change in circumstances of the parties, has no application to an award of the custody of a child. Section 5770, Revised Codes, gives the court power, before or after judgment, to make suitable provision for the custody, care and education of the children of the marriage, which provision may be vacated or modified by the court, at any time. In the case of Pearce v. Pearce, 30 Mont. 269, 76 Pac. 289, 290, in construing the statute, supra, this court said: ‘ ‘ If the parents do not, by proper petition, ask the court to make a proper order for the care and protection of their helpless [offspring], the court should and may of its own motion inquire into the facts and make the necessary order, and must do so when moved by either party, whether such party was in default, or not, in the suit, or is the guilty party. If it makes a mistake in the first instance, it may and should remedy the same, upon a proper showing, as soon thereafter as possible.” The child of divorced parents is a ward of the court and its rights cannot be compromised by matters which, as between the parties to the suit, would be considered res adjudicata.
As above indicated, we are precluded from considering the bill of exceptions in this case, and therefore cannot review the evidence. We have frequently held that in equity cases where there is conflicting evidence, the judgment of the trial court will not be disturbed if there is substantial evidence supporting the decree. (Farwell v. Farwell, 47 Mont. 574, 133 Pac. 958, Ann. Cas. 1915C, 78; Dockins v. Dockins, 82 Mont. 218, 266 Pac. 398.) Where, as here, we are not able to review the evidence in any manner, there is greater reason for allowing the judgment of the trial court to stand, it having heard the evidence and observed the demeanor of the witnesses and manner in which they testified.
The judgment of the trial court is affirmed.
Mr. Chief Justice Johnson and Associate Justices Angst-man and Erickson concur.
Mr. Justice Morris, deeming himself disqualified, takes no part in the foregoing decision.
|
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PER CURIAM.
After due consideration of the application of relator for writ of prohibition, the petition is denied.
|
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] |
PER CURIAM.
Pursuant to praecipe of dismissal of the appeal herein filéd by appellant, the appeal is ordered dismissed.
|
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] |
MR. JUSTICE ERICKSON
delivered the opinion of the court.
This is an appeal from a judgment entered for the defendants in the district court of Fergus county. The facts of the case are involved; however, for the determination of the questions raised on the appeal, the following résumé of the transactions involved should be sufficient:
Beginning in 1926, the plaintiff Wise was associated with one of the defendants, Levinson, in a copartnership the chief business of which was to handle and deal in sheep and lambs. In addition to this business the partnership was interested in mining enterprises. However, with the exception of the particular transactions out of which this case arose, no details were given at the trial as to dealings involving anything but livestock matters.
Some time during the summer of 1927, while Wise and Levinson were actively engaged in carrying on the business of the partnership, they became interested in the stock of the Euby Gulch Mining Company. Figures were quoted to them by the representatives of the Phillips estate, the owner of 60 per cent, of the issued stock, for its interest in the mine. SucQessive quotations were made until the price finally came down to $10,000. Both Levinson and Wise inspected the mining properties and discussed the matter with the Phillips heirs.
The partnership carried a checking account in a Lewistown bank and the testimony is that there were quite large sums of money on deposit at all times subject to withdrawal by either of the partners, but there is no testimony' that any sums were paid from the bank account in the purchase of this mining stock. Charles Whitcomb, now deceased, had a verbal option from the Phillips heirs covering the stock in question. Levinson’s testimony is that he paid to Whitcomb some $250 for a release of that option to clear the way for the purchase of the stock. In July of 1927, when Levinson paid the $250 to Whitcomb, which Levinson said came from his pocket and which he “presumed” was money “of Wise and myself,” Levinson had discussed the proposition with his uncle, Mose Zimmerman, and Zimmerman, with. Levinson, talked to Walter Phillips about the deal. After securing the release of the Whitcomb option of which Zimmerman, so far as the testimony shows, apparently had no knowledge, Zimmerman, with Simon Meyers, visited the mine, and within a short time after the inspection of the premises by them, they, together- with Levinson, Whitcomb and Walter and Ben Phillips, went to Helena where an option agreement was prepared and executed whereby the representatives of the Phillips estate agreed to sell 60,000 shares of the capital stock in the Ruby Gulch Mining Company to Simon Meyers and Mose Zimmerman. At the same time Benjamin M. Phillips, one of the representatives of the Phillips estate, gave an option to the same purchasers for 500 shares of the Ruby Gulch Mining Company stock which he owned personally. On the same day Meyers and Zimmerman wrote a letter to the National Bank of Montana, offering to pay a certain note owed by Whitcomb to that bank, which note was secured by 27,000 shares of stock of the mining company owned by Whitcomb. This note was after-wards paid by Meyers and Zimmerman, and the terms of the option agreement were carried out and the agreed purchase price was paid, one-half by Zimmerman and the other half by Meyers. On the same day, or the next day after the execution of the option, Meyers and Zimmerman executed a memorandum as follows:
“Placer Hotel, Helena, Montana.
“M. Levinson and J. E. McDonald.
“We agree to give you as commission for your services on purchase of stock in Ruby Gulch Mining Company in the event we purchase the same — 25% of any profit we make on same.
“Simon Meyers
“Mose Zimmerman.”
The J. E. McDonald mentioned in the above memorandum was a partner acquired by Levinson prior to the time Zimmerman and Meyers together visited the mining property, and he assisted Levinson in showing the mining property, and Levinson in his testimony said that McDonald was equally interested in the matter with him.
Subsequently, in 1928, Levinson wrote a letter to Meyers demanding a more definite agreement as to his interest in the mining venture, and in this letter he stated that it was originally agreed that he and McDonald were to have one-fourth of the stock of the mine. On June 27 of the same year, Meyers wrote Levinson a letter in which he stated that Levinson and McDonald were to have only an interest in the profits, according to the memorandum above set out, and on July 12, 1928, an agreement was entered into between Zimmerman and Meyers, on the one hand, and McDonald and Levinson, on the other, whereby it was agreed that McDonald and Levinson were to get 25 per cent, interest in the profits accruing from the mining stock deal.
In the complaint it is alleged that the funds used in the purchase of 69 per cent, of the capital stock of the mining company were partnership funds belonging to Levinson and Wise, and that the purchase was made by Levinson, and that Zimmerman and Levinson, in order to cheat and defraud the plaintiff, entered into a conspiracy whereby Levinson transferred the stock to Zimmerman, although Zimmerman had no interest in it and knew of plaintiff’s alleged interest in the transaction.
The defendants, in addition to Levinson and the Ruby Gulch Mining Company, a corporation, are assignees of the stock originally purchased by Zimmerman and Meyers, and the complaint alleges knowledge on their part of the alleged plan of Levinson and Zimmerman to defraud the plaintiff.
On the trial no proof was offered to sustain the allegation that partnership funds were used in the purchase by Zimmerman and Meyers of the stock in question. By the testimony of Levinson it is sought to be proved that the transaction was really one wherein Meyers and Zimmerman loaned the purchase price to Levinson and Wise, who were to have the privilege of taking up as much of the stock as they wished by paying to Zimmerman and Meyers the pro rata portion of the original purchase price, or that they might secure all of the stock by payment of the full purchase price plus six per cent, interest.
Many transactions took place from the time of the original acquisition of the stock by Zimmerman and Meyers to the date of the trial: Transfers from Zimmerman to his son-in-law and from Meyers to Zimmerman’s son-in-law, and eventually a transfer of the stock in question to the defendants other than Levinson and the mining company.
From August, 1927, to 1933, Meyers and Zimmerman from their own funds financed the company, paying the taxes, watchman’s salary, located new mining claims and made many efforts to sell the property.
In 1928 Wise filed a complaint against Levinson for a partnership accounting, and as a result of the action an interlocutory order impounding and placing in custody of the court the properties of the partnership was made. In 1936 the partnership action was continued with Levinson defaulting, and a judgment was entered in the accounting action finding that plaintiff was the owner of 345,000 shares of the capital stock of the Ruby Gulch Mining Company. Great stress is laid by the plaintiff on the effect of the lis pendens and the service of notice of the assignees of Zimmerman of the accounting suit pending in the district court for the purpose of showing knowledge on the part of defendants of Wise’s claim.
The specifications of error cover, first, the entering of judgment in favor of defendants; second, that the court erred in making the following findings of fact which may be briefly sum marized as (a) .in Finding No. 3, that the money paid for the stock in question was paid by Meyers and Zimmerman from the personal funds of each; (b) in Finding No. 6, that the contract alluded to heretofore, made on July 12, 1928, expressed the whole of the agreement between Meyers and Zimmerman, on the one hand, and Monte Levinson, on the other, with regard to the stock in question, and that Levinson had no other interest in the stock than that set out in the contract; (c) in Finding No. 8, that Zimmerman and Meyers never did lend or promise to lend or advance to Levinson and Wise the purchase price of the stock; (d) in Finding No. 9, that Zimmerman and Meyers did never promise or agree to allow Levinson and Wise to purchase any of this stock at cost plus 6 per cent.; .(e) in Finding No. 10, that no money or anything of value belonging to the partnership of Levinson and Wise was used for the purchase of the stock; (f) in Finding No. 12, that nothing was done by Meyers or Zimmerman, or any of the defendants, for the purpose of defrauding or wronging the plaintiff; (g) that none of the defendants, other than Levinson, formed or entered into any conspiracy for the purpose of defrauding plaintiff; (h) in Finding No. 17, that defendant Trauerman in purchasing the stock from the executors of the Zimmerman estate and from Zimmerman’s son-in-law was not acting in behalf of the plaintiff, and that plaintiff furnished no part of the money and had no right or interest in the stock secured thereby; (i) in Finding No. 18, that Wise did not bring any action prior to the present one to assert the claim he now advances; and (j) in Finding No. 20, that the cause of action was not prosecuted against Levinson.
The third exception deals with the following conclusions of law made by the trial court: (a) That plaintiff was guilty of laches barring the suit; (b) that plaintiff has not now and never has had any right, title, interest or claim, either at law or in equity, of, in or to the stock in question, nor the proceeds thereof; (c) that plaintiff failed to prove any conspiracy as alleged, or otherwise; and (d) that plaintiff should take nothing by his complaint, and that judgment be entered against him for costs.
The appeal presents a situation often before this court, i. e., as to whether or not there is any evidence here sufficient to sustain the trial court. As this court said, in In re Sales’ Estate, 108 Mont. 202, 89 Pac. (2d) 1043, 1045: “The question before us is: Does the record contain substantial evidence to support the judgment?” If it does, the judgment must be affirmed. (Ferguson v. Standley, 89 Mont. 489, 300 Pac. 245, and eases therein cited.)
In their brief, counsel for plaintiff abandon any claim to that portion of the stock originally secured by Meyers. Meyers’ testimony is to the effect that he had no knowledge of any claim made by Wise to the stock in question. There is ample testimony to support the trial court’s finding so far as Meyers is concerned, and the plaintiff has this to say in his brief: ‘ ‘ Candor demands that we admit there was evidence to sustain the court’s findings that Meyers was an innocent purchaser.” It is their argument, though, that so far as the Zimmerman portion of the stock is concerned, there is no evidence to raise even a conflict, and that all of the evidence supports the plaintiff’s view, sufficiently, at least, to require that the cause be returned to the trial court for a new trial as to the stock originally acquired by Zimmerman.
A determination of the question whether there was sufficient evidence before the lower court to raise a conflict will dispose of the errors specified. It is to be noted that much of the testimony of both Wise and Levinson concerns conversations held with Whitcomb, who was dead before the time of the trial, and Zimmerman who died some years before the trial.
It will be necessary to examine the testimony of each one of the witnesses to some extent satisfactorily to discuss the points raised in the exceptions and in the briefs. The plaintiff testified at some length and, as has been indicated, the portions of his testimony with the exception of conversations alleged to have been had with Meyers and Levinson, concern conversations he had with Zimmerman and Whitcomb — both of whom were dead prior to the time of trial. His testimony as to his conversation with Whitcomb is that some two months after the option agree ment between the representatives of the Phillips estate, and Meyers and Zimmerman, he visited Whitcomb and told him that he, Wise, had purchased a one-half interest in the Buby Gold Mining Company stock in question, that he had not received it, and he wanted to know what became of it. In reply the testimony is: ‘ ‘ Mr. Whitcomb says, ‘ I guess you have been gypped. ’ ’ ’ This is the only testimony on the part of Wise as to any conversation with Whitcomb that would tend in any way to sustain plaintiff’s contention. He testified that in November, 1927, he visited Zimmerman and told him that he thought he had been defrauded. In reply Wise testified Zimmerman said: ‘ He told me that when I got my sheep deal closed with Monte Levinson he was satisfied I would get my stock.” He further testified that on a later occasion he visited Zimmerman who took him to the office of Meyers, and had conversations there. Meyers on the stand denied ever having met Wise prior to the time of trial, and stated that so far as he could remember Wise had never visited his office. The balance of Wise’s testimony concerns the arrangements made between himself and Levinson looking to the purchase of the stock in question.
It is significant that Wise testified the agreement between him and Levinson to purchase the stock was made in a conversation held in an automobile on the Grass Bange road. Levinson on the stand could not recall any such conversation; however, he did testify there was a loose understanding between himself and Wise that the latter was to share the profits which might be gained in dealing in the stock in question.
Since neither Whitcomb nor Zimmerman was alive and there were no witnesses to the conversation between Wise, Zimmerman and Whitcomb, his testimony on these points is not expressly contradicted. Standing alone, however, it does not seem possible that these conversations could raise the constructive trust here sought to be proved. Although there was no express contradiction of Wise’s testimony as to these conversations, his own actions are to a great extent inconsistent with the position he now advances. For example, the long delay in making any attempt to assert his claim by suit, which he at tempts to explain by the accounting suit, together with his interest in the proceedings, would warrant the lower court in finding a conflict. And, as we have said, it is doubtful that Wise’s testimony, even if true, would be sufficient to raise the constructive trust.
The chief witness for the plaintiff besides himself was Monte Levinson, the former partner. Again it is argued that so far as Zimmerman’s part of the deal is concerned, Levinson’s testimony is uncontradicted, and again we have a situation where most of Levinson’s testimony concerns conversations he had with Zimmerman, now dead.
At the outset in the examination of the testimony of Levinson it may be noted that the trial court was faced with a peculiar situation. Levinson, the former partner of Wise and one of the defendants, defaulted in the present case. In the accounting proceedings preceding the present action, he was represented by an attorney by the name of Allen. In the present case, Allen appears as an attorney for the plaintiff, and Levinson as one of his witnesses. Levinson had filed a claim based on this transaction against the Zimmerman estate which had not been paid, and he had some interest in the establishment of Wise’s claim, as its establishment would fortify this claim. In that situation the lower court was justified in viewing the testimony of Levinson with some reservations as to its credibility.
The gist of Levinson’s testimony is that he and Wise were interested in the Ruby Gulch Mining Company stock jointly; that they had made several trips to the mine and that he had procured a release of the verbal option held by Whitcomb; that after the negotiations had proceeded some time between the partners and the Phillips’ interests, he met Zimmerman at Malta and in response to an inquiry from Zimmerman of the deal Levinson wanted on the mine, Levinson replied, “I said I would like to have you loan me the money to buy this mine with and let us pay you back and you can hold the stock or I would like to have you give me a certain percentage of this mine and you keep the balance of it. * * * And he said, ‘I think it’s all right. You can go ahead and make the deal.’ ” Levinson testified further that he drove to Lewistown and saw Wise and told him that Zimmerman had promised to lend the money. When Zimmerman brought Meyers into the deal, Levinson’s testimony is that in reply to a question put by him to Zimmerman as to why Meyers was brought along, he replied: "It’s on account of that Wise angle.”
There was some other testimony on the part of Levinson relative to knowledge on the part of Zimmerman that Wise had some interest in the deal in question, but the gist of all of Levinson’s testimony is that Zimmerman agreed to lend to Wise and Levinson the money required to purchase the stock, and that Wise and Levinson might at any time obtain the stock by paying the original price, plus 6 per cent, interest.
The. position taken by Levinson in his testimony is amply refuted, first, by the testimony of Meyers contradicting Levinson’s testimony as to conversations alleged to have been had in Meyers’ presence, and, second, the testimony is contradicted by a showing of the contractual relations evidenced by the memorandum and the agreement heretofore referred to, whereby it was agreed between Meyers and Zimmerman, on the one hand, and Levinson and McDonald, on the other, that Levinson and McDonald were to receive as compensation for their part in the transaction 25 per cent, of the profits accruing from the transaction. In addition to that, Levinson filed a creditor’s claim on behalf of himself and the widow of McDonald in the Zimmerman estate for this 25 per cent, interest. He makes some explanation of these contracts on the stand by stating that the memorandum and agreement did not represent the original understanding. However, there is a sharp conflict between the situation shown by the memorandum and the contract and Levinson’s conduct over more than ten years elapsing from the time the transaction was first entered into and the time of the trial, and the position he now takes. Further, although Levinson testified that Wise had an interest in the matter and, as has been said, his testimony is that the agreement was that Zimmerman and Meyers were to lend the partnership the funds with which to buy the stock, he said on the stand that in reporting the matter to Wise, he said: "I didn’t feel lie [Wise] was entitled to fifty per cent, cut on the profits of that particular deal; and Wise said he thought he was, and I told him if he would be satisfied with a smaller amount, which I thought would be fair, around 25% — not to exceed that- — that I would go ahead with this deal. ’ ’ Then followed an argument and “a little fight, and I left the office.” That is the last Wise and Levinson saw of each other for several years. This latter testimony certainly does not bear out the theory of the loan transaction, nor that Wise was interested in any way from then on. Rather it supports the view that the real deal is shown by the memorandum and agreement between McDonaldi and Levinson, on the one hand, and Zimmerman and Meyers, on the other. The fact of the fight and Levinson’s acquisition of a new partner at this time indicates strongly that then Levinson had counted Wise out of the deal. This state of facts is inconsistent with the general view he advanced in other portions of his testimony. The conflicting positions warranted the lower court in finding as it did on the fact questions involved.
The witness Jacobson, called by the plaintiff, testified as to conversations had with Zimmerman in which the latter was supposed to have said to Jacobson, “By the way, Monte [referring to Levinson] has got this stock from the Ruby Gulch Mine and he would like to sell some to you;” and that after talking to Levinson, Jacobson visited Zimmerman again and Zimmerman was supposed to have said, ‘‘ I am just holding for him his stock. ’ ’ This testimony tends to support the view of the plaintiff; however, no attempt was made to tie this testimony up with the original transaction, and we are left to conjecture as to how Levinson acquired the stock mentioned in the Jacobson conversation, and whether Levinson had it to sell under the memorandum and agreement from which he would make a profit, or as owner, and it, together with the Wise testimony, is totally insufficient to establish the cause of action here pleaded.
As we have said, the two positions taken by Levinson being mutually exclusive, the court was warranted in disregarding his testimony. The position taken by Wise during the period elapsing from the time of the original transaction and his position taken on the stand are sufficiently contradictory to cast doubt on his testimony. His testimony, even if it were accepted as true, is scanty and incomplete, and the testimony of Wise and Jacobson together under the circumstances could not warrant recovery under the theory advanced.on the trial.
In all of this opinion we have assumed that the testimony of Wise, Levinson and Jacobson relative to conversations had with Zimmerman and Whitcomb and other persons deceased at the time of the trial, was admissible, since the question was not argued in the briefs. However, in making that assumption, we are not passing upon the question of its admissibility. We have found, then, that the court was warranted in finding that there never was any scheme on the part of Zimmerman or Meyers to defraud this plaintiff, nor any knowledge on their part of Wise’s alleged interest, and that the purchase price was paid by Zimmerman and Meyers. Since that is the case, a cause of action against the assignees of the original purchasers cannot be maintained.
Plaintiff urges that the defendant Trauerman and his assignees cannot take this stock as against Wise, for the reason that Trauerman and Wise were copartners, and that some two years before the assignments were made to Trauerman, he and Wise had some conversation concerning the stock and they agreed to purchase it. The evidence as to the conversation had between Trauerman and Wise, and a certain letter written by Trauerman to Wise, are totally insufficient to support the contention that there was a partnership between the two. The evidence is that the two never purchased or sold anything, and that it had no money or assets, and all of the evidence demonstrates conclusively that the findings of the court on this matter were justified.
What we have said above determines the matter and it is not necessary to discuss the specifications not considered in the opinion. The judgment is affirmed.
Mr. Chief Justice Johnson and Associate Justices Morris, Angstman and Arnold concur.
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MR. JUSTICE ARNOLD
delivered the opinion of the court.
This is an appeal from a judgment of the district court of Missoula county making permanent a temporary injunction which enjoined the defendants from operating and conducting a plan popularly known as “Bank Night.” The plaintiffs’ theory of the case is that the defendants were maintaining a nuisance as defined in section 11124, Revised Codes, and they sought to abate the nuisance.
The case was tried upon an agreed statement of facts. The essential parts of the plan, as we gather from the agreed statement, are as follows:
The defendant Fox Missoula Theatre Corporation operates two theaters in the city of Missoula, known as the Wilma and the Rialto. One Thomas C. Grindley, who is not a party to this suit, operates a theater known as the Community Theatre. Each week the defendant theater and Grindley deposit $100 apiece in a bank, which sum becomes a prize subject to drawing under the following conditions: The defendants maintain a register where people over sixteen years of age sign their names and set forth their addresses. Each registered name receives a number in regular order. In a second register, known as Register No. 2, the names are alphabetically arranged, retaining the same numbers they have in Register No. 1. Anyone so registered becomes eligible for the prize.
Once each week at the Wilma Theatre numbers corresponding to those set opposite the names of registered persons were placed in a box on the stage. A disinterested person, usually from the audience, drew at# random from the box and the number drawn was read aloud. The person whose number was drawn was the winner of the prize. A period of two minutes was permitted for the person to appear and claim the prize. If the $200 award was not claimed within the allotted time, the money was added to the prize fund until it reached the sum of $500, at which time it was otherwise apportioned. At no time did a single award exceed $200. While it was not necessary for one to purchase a ticket for admission to the theater to become eligible to the drawing, this fact was not announced on the screen, radio or published in a newspaper, but such information was imparted by the door attendant each bank night and at the time of the drawing. On bank night all tickets are sold for the price charged adults, no children’s tickets at the usual reduced price being sold. It is conceded by the parties that some theater patrons attend on bank night solely for the chance of winning a prize, while others attend solely for the purpose of seeing the picture.
It is admitted in the agreed statement that the plan was profitable for the theaters and that, if the money were not used for the prize, it would be otherwise used for advertising. On bank night the theaters joining in the plan were virtually filled to capacity with large numbers of persons standing on the outside.
The question for us to determine is whether or not the plan constitutes a lottery under the laws of Montana. While there have been no decisions in our court on this subject, as it relates to so-called Bank Nights, our Constitution, Article XIX, section 2, reads as follows: ‘ ‘ The legislative assembly shall have no power to authorize lotteries, or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this state. ’ ’ In pursuance of such mandate in the Constitution, the legislature enacted section 11149, Revised Codes, reading as follows: “A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known.” In State v. Hahn, 105 Mont. 270, 72 Pac. (2d) 459, this court set out the three requisites of a lottery as the offer of a prize, its award by chance, and the giving of consideration for an opportunity to win the prize.
It appears that the defendants admit that all elements of a lottery are present, except the requisite that there must be a valuable consideration paid for a chance to win a prize. The fact that the scheme was cleverly arranged apparently to avoid the stigma of the statute forbidding lotteries is no defense. Judicial scrutiny must pierce the veil of sham defense, whether it be the product of a mind ingenious or ingenuous, clever or crude.
Defendants, when they argue that the money put up by them for the gifts would otherwise be spent for advertising, step into their own deadfall. Why, then, do they not spend it for advertising ? If spent for advertising the attraction for attending the show, and the appeal of the advertisement would be the picture shown, and not the gift offered. The purpose of the gift is a strong factor in determining the nature of the scheme. It would seem that on bank night the remote chance of a smile from lady luck or dame fortune is a greater attraction than the winsome ways of other stars.
Defendants contend that there was no consideration paid for participation in the drawing, hence it was not a lottery. Where does the money come from for the gift? From the treasury of the theater. Where does the money come from for the treasury of the theater? From the customers who purchase tickets. Therefore the price paid for the ticket, in part, though disguised, later reappears as the gift. It enters the box office as Dr. Jekyll, and steps out as Mr. Hyde.
The recent work of Williams on Lotteries, in section 185, page 115, has this to say about consideration: “With respect to its office or function this term may denote the element of a consideration in a specific contract such as the purchase price in the buying of a lottery ticket. This is the narrow, technical use of the word. Or, it may have a wider meaning and refer to all or a portion of the element of consideration in the entire scheme or device. Here it may include all or a part of the consideration involved in all or a part of the contracts between the operator and the players. As to kinds of consideration, there are many, such as money or property paid or promised, time given, labor performed, services rendered, benefits conferred, losses sustained, and detriments endured.”
Where the theater uses a part of the price of the ticket for a plan such as we have here, it is pro tanto a reduction in the price for admission and an application of the amount of the reduction toward an accumulating prize.
In State ex rel. Beck v. Fox Kansas Theatre Co., 144 Kan. 687, 62 Pac. (2d) 929, 109 A. L. R. 698, it was held under circumstances quite similar to those before us, that the benefit under the “bank night” plan in the way of increased gross receipts for paid admissions is sufficient consideration coming directly or indirectly from those entitled to chances generally to meet the element of consideration in the definition of a lottery. (See, also, Sproat-Temple Theatre Co. v. Colonial Theatrical Enterprise, 276 Mich. 127, 267 N. W. 602; Society Theatre v. Seattle, 118 Wash. 258, 203 Pac. 21.)
A further analysis of the question of consideration is found in Williams on Lotteries, supra, at page 132, which in several respects is pertinent to the problem before us:
“The Athens theatre has a show to exploit and seats to sell. It makes offers to the public upon certain terms and conditions which contemplate two classes of chances and the members of the public accept these terms and conditions without change. It is the theatre’s game and the players have to accept the offers as they are made, if they accept at all.
“It is respectfully suggested that this scheme discloses six kinds of consideration connected with and included in the theatre’s offer and the corresponding acceptance of the offer, namely:
“(a) The registrant’s time, trouble and expense in going to and from, the lobby of the theatre in order to register and receive his option number.
“ (b) The registrant’s subjection in the lobby to sales appeal of the theatre program by the flaming posters suggesting beautiful scenery, charming women, handsome men and thrilling music —a thing of value to the theatre.
“(c) The addition of registrant’s name and address to the theatre’s mailing list, a list which is of value and would cost considerable if made in some other manner.
“(d) The registrant’s time, trouble and expense in going to and from the theatre in order to participate in the drawing at nine o’clock on ‘bank night.’
“(e) The registrant’s service to the theatre in ‘broadcasting’ notice of the scheme to his kin, comrades and acquaintances— a very valuable service since the use of the mails and radio is denied to ‘ bank night. ’
“ (f) The admission fee, which, in most cases, is paid by the registrant in order to see the drawing as it actually occurs and to participate most comfortably and advantageously in the distribution, if, as, and when it takes place.
‘ ‘ In view of this analysis several things are obvious, namely:
“(a) That there are two prerequisites for participation in the distribution of prizes: (1) Registration of name and address in a book in the theatre lobby, and (2) attendance at the theatre, either in or out, at nine o’clock sharp on ‘bank night,’ and that one of these prerequisites is absolutely worthless without the other.
“(b) That there is only one way for the registrant to see the drawing and get first hand information and thereby participate fully in what is done, and this way, this opportunity for visual participation, this chance de luxe, is sold to him in a 25 cent admission fee and all the hocus pocus that ‘bank night’ promoters can muster cannot obscure the fact.
“(e) That while consideration is present in the scheme in all the kinds and aspects shown in the foregoing analysis, that part which is made up of the stimulated admission fees actually and undoubtedly received by the theatre, is, in itself, sufficient to constitute the consideration comprehended by the anti-lottery statutes in any state in the Union.
“(d) That another kind of consideration involved in the acceptance which is in and of itself sufficient to supply the element of consideration in a lottery, is the presence of the registrants at the theatre, even on the outside, in response to the operator’s offer.
“(e) That the plan of drawing from all registration numbers has the effect of playing the total registration against the attendance and thereby increasing the odds against the award and in favor of passing the prize for addition to the prize for the next Monday night. This, of course, increases the prize without increasing the admission and in so doing accelerates the gambling spirit. Here there is an increase in prize from $35.00 to $210.00 without any award at all. Thus there is no limit to the prize in the ‘bank night’ scheme and consequently no height to which the gambling fever may not rise under it. ’ ’
While in the instant ease, failure of a number holder to claim the prize will result in adding the prize to the next week’s drawing without increasing the individual prize, yet the number of prizes that may be drawn is thereby increased, resulting in greater interest in attendance.
In describing a lottery our statute, supra, in conclusion uses these words: ‘ ‘ Whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known.” Apparently the legislature foresaw clever plans to evade the plain meaning of the law and confuse or befuddle the courts. As was done by this court in State v. Hahn, supra, we must here look to the substance as well as the form.
The scheme is admittedly arranged for the purpose of attracting money to the theater, by offering a prize to a chance winner, even though the prize might occasionally be drawn by one who has purchased no ticket. It is in effect a spawning ground for more unrestrained forms of gambling, appealing to juveniles as well as adults. That the scheme is artful and difficult of judicial capture is evidenced by the fact that sixteen ju risdictions have classified it as a lottery, and about nine have allowed it to depart with judicial blessing. Injunction lies to abate a nuisance such as we have here. (State ex rel. Stewart v. District Court, 77 Mont. 361, 251 Pac. 137, 49 A. L. R. 627.) Despite its attractive makeup, we believe the scheme must take its place in the limbo of lotteries.
Judgment affirmed.
Associate J ustices Angstman and Erickson concur.
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PER CURIAM.
The parties having filed a praecipe of dismissal of the appeal herein, it is ordered that the appeal be, and the same is hereby, dismissed.
|
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