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MR. JUSTICE HUNT
delivered the Opinion of the Court.
Larry’s Post Company, Inc. appeals from a judgment of the District Court of the Eleventh Judicial District, Flathead County, which affirmed the determination of the Board of Labor Appeals that services performed by individuals who contracted with Larry’s to harvest timber constituted employment within the meaning of the unemployment insurance laws. We affirm.
Larry’s raises the following issues on appeal:
1. Were the facts found by the appeals referee and adopted by the Board of Labor Appeals supported by the evidence?
2. Do the facts substantiate the finding of an employment relationship for the purpose of unemployment insurance?
Appellant Larry’s Post Company, Inc. operated a post yard in Flathead County near Columbia Falls. It was engaged in the business of procuring, cutting, pointing, curing, treating and selling fence posts, poles and rails.
Larry’s arranged with landowners to cut and remove timber from certain private properties. In exchange for the right to harvest timber, Larry’s paid each landowner a stumpage fee.
When the right to harvest a particular tract was procured, Larry’s contracted with woodcutters to cut and remove the timber. Tom Finch, whose claim for unemployment insurance benefits initiated this matter, contracted with Larry’s to cut timber for approximately four weeks in 1986. Finch performed services for Larry’s after quitting his job at the Superior Lumber Mill and while awaiting the completion of contractual arrangements with the State of Montana to begin harvesting timber on state lands.
Although Larry’s usually executed written contracts with its woodcutters, a written contract was not entered into with Finch. The evidence indicates, however, that Larry’s dealt with Finch on the same terms that it dealt with woodcutters who signed written agreements.
Each cutting agreement granted the woodcutter the exclusive privilege of cutting post and pole timber from areas designated by Larry’s. The woodcutter was required to conform to performance specifications stipulated by the contract, the landowner and statutes. Any failure to conform to these specifications constituted cause for termination.
The woodcutters were allowed to set their own hours. They could also provide services to others, although no evidence was submitted showing that any woodcutter was under contract with any other firm while under contract with Larry’s.
The woodcutters were permitted to hire assistants or subcontract out all or part of the work. Tom Finch was assisted by his son, whom he paid for that assistance. However, no evidence was introduced regarding whether Finch or any other woodcutter paid employment taxes or whether they withheld taxes from the earnings of their assistants or subcontractors.
The woodcutters were permitted to sell to other buyers the timber cut under the contract with Larry’s. When a woodcutter sold his posts and poles to another, he was obliged to pay stumpage fees to Larry’s.
Larry’s paid the woodcutters on a regularly scheduled basis — every two weeks — for cut posts and poles. All contractors were paid the same rate. The woodcutters did not negotiate prices, nor was the work awarded on the basis of competitive bids. Certain costs, including stumpage fees paid to the landowner, were deducted from each woodcutter’s paycheck.
The woodcutters provided their own transportation to and from the cutting site. They also furnished their own tools and equipment, usually a chain saw and other tools common to the woodcutting trade. However, if a woodcutter did not own the appropriate tools, he could rent them from Larry’s. The rental cost was deducted from his paycheck.
Other than equipment and transportation, the woodcutters did not make a significant investment in the job. They did not purchase stumpage prior to harvest; they paid only for the stumpage they cut; they were under no liability if they were unwilling or unable to complete their contracts; they faced little opportunity for profit or loss other than their success or failure in performing efficiently.
Each contract provided that the agreement could be terminated at any time by either party. Tom Finch’s agreement with Larry’s ended in June, 1986, when the property on which he was working was sold by the landowner and was no longer available for timber harvesting. From that time until September, 1986, Finch was self-employed, buying stumpage and cutting timber on state lands.
In October, 1986, Finch filed a claim for unemployment insurance benefits. His claim was denied because he left the Superior Lumber Mill to engage in self-employment. In November, 1986, he sought a redetermination of the claim, this time including his earnings from Larry’s as requalifying wages. The Unemployment Insurance Division then initiated an investigation, resulting in the Division’s determination that, as the services performed by Finch for Larry’s constituted employment, he was eligible for unemployment insurance benefits.
In May, 1987, Larry’s appealed the decision. A hearing was held before an appeals referee from the Department of Labor and Industry. The appeals referee also concluded that the work performed by Finch constituted employment.
In August, 1987, Larry’s again appealed, this time to the Board of Labor Appeals. In the absence of a request for oral argument, the Board reviewed the matter and affirmed the referee’s decision.
Larry’s then sought judicial review of the determination. After briefing, the District Court dismissed the petition and affirmed the agency decision. Larry’s appeals to this Court.
The standard of review of decisions by the Board of Labor Appeals is set out in § 39-51-2410(5), MCA, which provides in pertinent part:
“(5) In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.”
Thus, as mandated by statute, we are bound by those facts found by the Board of Labor Appeals that are supported by the evidence. “Supported by the evidence” means supported by substantial evidence, that is, more than a scintilla of evidence but less than a preponderance. Gypsy Highview Gathering Sys. v. Stokes (1986), 221 Mont. 11, 15, 716 P.2d 620, 623.
Larry’s argues that several of the findings made by the appeals referee and adopted by the board are not supported by the evidence. Specifically, Larry’s refers to those findings in which the appeals referee stated that no evidence was presented regarding certain matters. Larry’s argues that “no evidence” is not the same as “substantial evidence” and cannot be the basis of any finding of fact.
The so-called “non-findings” that Larry’s challenges are:
“[1] [T]here was no evidence or testimony submitted showing that any woodcutter was ever under contract with any other firm while under contract with Larry’s Post Company.
. “[2] [T]here is no evidence or testimony on the record that the woodcutters pay any employment taxes (workers’ compensation, unemployment insurance, social security). Nor was any evidence or testimony submitted showing that the woodcutters withhold taxes from their assistants/subcontractors earnings.
“[3] There is no testimony or evidence in the record showing that woodcutters post a hazard reduction bond as required by Section 76-13-408, et. seq., MCA.
“[4] There was no evidence or testimony submitted showing that the woodcutters negotiated prices or that work is awarded on the basis of competitive bids.”
These “non-findings” are especially pertinent to the present case. Each reflects an element indicative of an individual’s status as an independent contractor. The appeals referee’s finding of a lack of evidence on these points tends to demonstrate that an employment relationship existed between Larry’s and the woodcutters.
Furthermore, Larry’s, as the employer, had the burden of proving that the services performed by the woodcutters did not constitute employment. Section 39-51-203(4), MCA (1985). The very fact that Larry’s neglected to introduce evidence indicating that the woodcutters were independent contractors — evidence showing that not only did the woodcutters have an opportunity to work elsewhere, they actually did so; evidence showing that while the woodcutters occasionally had other individuals assist them, those individuals were actual employees of the woodcutters; evidence showing that the price of the posts was negotiated between two entities of similar bargaining power or that the contracts were awarded on the basis of competitive bids; evidence showing that the woodcutters were required to invest in hazard reduction bonds — established that Larry’s failed to meet its burden. Under the circumstances, the challenged findings were appropriate.
Larry’s next argues that the facts found by the appeals referee do not substantiate the finding of an employment relationship. Larry’s contends that the facts establish that the woodcutters were independent contractors and, therefore, not covered by the unemployment insurance laws.
The formula for determining whether individuals are independent contractors or employees within the meaning of the unemployment insurance laws is commonly known as the ABC Test. The test is delineated in § 39-51-203(4), MCA (1985), which provides:
“(4) Service performed by an individual for wages is considered to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that:
“(a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract and in fact;
“(b) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
“(c) such individual is customarily engaged in an independently established trade, occupation, profession, or business.”
Under the statute, employment is presumed. Before an individual will be deemed an independent contractor, elements of all three subsections of the statute must be proven. Pioneer Baseball League v. Friedricks (Mont. 1988), [233 Mont. 384,] 760 P.2d 93, 95, 45 St.Rep. 1573, 1576; Standard Chem. Mfg. Co. v. Employment § Div. (1980), 185 Mont. 241, 245, 605 P.2d 610, 613.
The first and most crucial element of the ABC test is the right of the individual who performs services to retain control and direction over his labor. Pioneer Baseball, 760 P.2d at 95, 45 St. Rep. at 1576. Control is necessarily implied in every contract that gives the employer the right to insist that services be performed according to specifications. St. Regis Paper Co. v. Unemployment Compensation Comm’n (1971), 157 Mont. 548, 553, 487 P.2d 524, 527. Evidence of Larry’s control over the woodcutters was demonstrated by the written contracts, which enumerated several performance specifications. Further evidence of Larry’s control was illustrated by testimony indicating that Larry’s had the right to specify and change the size of the posts to be cut, depending on the orders the post company needed to fill. In addition, Larry’s monitored the cutting area to assure that the woodcutters followed all stipulations. If a woodcutter failed to comply, Larry’s could withhold from the woodcutter’s pay any amounts necessary to bring the worker into compliance. Failure to comply could also result in dismissal.
Evidence of employment was also found in the method by which the woodcutters were paid. Larry’s paid the woodcutters every two weeks for the number of posts cut, rather than by the job. Moreover, each woodcutter was paid the same amount per post, in accordance with a price list attached to the written contract. The woodcutters did not negotiate the price to be paid per post, nor were the contracts awarded on the basis of competitive bids — both factors that, if present, would indicate an independent contractorship. See Pioneer Baseball, 760 P.2d at 95, 45 St.Rep. at 1576.
Further evidence of employment was indicated by the fact that the woodcutters continued their relationship with Larry’s through a succession of jobs. Their contracts were not renewed each time they were granted a new area in which to cut — a factor that, if present, would point to independent contractorship.
Perhaps the most important indication that Larry’s retained control over the woodcutters was the fact that the relationship between the two was terminable at will without liability on the part of either party. This fact signified the existence of an employment relationship. Kirby Co. of Bozeman v. Employment Sec. Div. (1980), 189 Mont. 1, 9, 614 P.2d 1040, 1044.
The above combination of factors demonstrated that Larry’s retained control over the woodcutters, thereby establishing that their relationship was one of employment. As Larry’s failed to establish the first leg of the ABC Test, we need not consider the remaining two branches. As noted earlier, if the employer fails to prove all three elements of the ABC test, the services performed will be considered employment.
Affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and WEBER concur.
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] |
MR. JUSTICE GULBRANDSON
delivered the Opinion of the Court.
Defendants appeal from the final judgment of the Fourth Judicial District Court of Missoula County awarding the fourteen plaintiffs a sum total of $2,479,916 in damages. This judgment was based upon the District Court’s earlier grant of partial summary judgment in favor of the plaintiffs on the issue of liability. The court ruled that the State was liable for a breach of implied contract caused by the premature termination in 1977 of the Aviation Technology Program at the Missoula Technical Center. We reverse.
The issues presented for review:
1. Did the District Court err in granting partial summary judgment in favor of plaintiffs on the issue of liability?
2. Did the District Court err in determining the measure and amount of damages to be awarded plaintiffs?
In the fall of 1976, plaintiffs enrolled in the Aviation Technology Program at the Missoula Technical Center (Center). This Center is one of five such post-secondary vocational education centers financed by state appropriations. Permissive county levies may supplement State financing. The Board of Public Education (Board) retains overall control over the budget and curriculum of each center.
In 1977, the legislature appropriated $7,042,721 in funding for the five centers, a reduction of $819,388 from the 1975 biennial legislative appropriation. This reduction entailed a cutback in vocational programs. After consideration of various alternatives, the Board decided to eliminate the Aviation Technology Program (Program) because it had the highest cost per student of all the programs offered at the Center and because it would affect fewer students (approximately 30 to 45 students) than a cut in many other programs.
In June of 1977, the Board notified those sixteen students at the Center who had already successfully completed one year of the integrated two-year program, that they would be unable to complete the second year of training because the program was being discontinued. The students thereafter filed suit alleging breach of the State’s implied contract to provide a two-year, six-quarter course of study which would prepare them for a career as a commercial pilot. As alleged by the students, the “Career Pilot Program” detailed in the Training Course syllabus was designed as a two-year integrated whole, with completion of course work and flight training more than sufficient to meet minimum FAA requirements and to qualify students for employment as commercial pilots and certified flight and ground instructors. Plaintiffs also alleged that this breach summarily deprived them of liberty and property interests without due process of law.
Plaintiffs initially filed suit in federal district court for damages allegedly resulting from the premature termination of the Program. See Peretti v. Montana (D. Mont. 1979), 464 F.Supp. 784. The Ninth Circuit Court of Appeals, however, subsequently held the State of Montana had not consented to suit in federal court and the Eleventh Amendment therefore precluded district court jurisdiction over the suit. Montana v. Peretti (9th Cir. 1981), 661 F.2d 756. Plaintiffs then filed suit in the Fourth Judicial District Court of Missoula County.
The parties agreed to bifurcate the issues of liability and damages. The issue of liability was then submitted on cross-motions for summary judgment; the parties stipulated that the court could render a decision on these cross-motions based upon its consideration of an agreed statement of facts and the exhibits and transcript from the earlier federal court trials.
On July 12, 1985, the District Court ruled that an implied contractual relationship existed between the parties which entitled plaintiffs to an opportunity to complete the Program’s six-quarter training period and to receive a diploma upon completion. The court held that the State breached its implied contract with the students when it prematurely terminated the Program. The court thus granted partial summary judgment in favor of plaintiffs, finding defendants liable for those damages resulting from this breach.
The State requested and received a certification of the partial summary judgment as final under Rule 54(b), M.R.Civ.P., so it could then file an interlocutory appeal prior to resolution of the issue of damages. The State, however, subsequently decided not to initiate an appeal until after judgment on the issue of damages.
The issue of damages was later tried without a jury. On July 15, 1988, the court issued its Findings of Fact, Conclusions of Law, Opinion and Order awarding damages to each of the fourteen plaintiffs who were deposed and presented evidence of their damages. The court held that those seven students not engaged in a career as pilots (hereinafter “the non-pilots”) received no financial benefit from the one-year aviation training. The court thus concluded that the detriment suffered by these non-pilots equaled the losses they incurred in attending the one-year aviation program (reliance damages) plus the lost expectancy of their bargain. The court then multiplied the total amounts expended in 1977 to attend one year of the Program by an inflation index of 1.9 to arrive at the 1988 equivalency of the total amount of damages incurred by the non-pilots in reliance on the implied contract. The total amounts awarded to each non-pilot ranged from a low of $193,940 to a high of $237,979.
The damages awarded those seven students who went on to become pilots, on the other hand, equaled the increased average cost of alternate training, the average lost income caused by the average one-year delay in beginning a career as pilots, and the value of the employment benefit lost by lack of a degree from a school with a formal integrated two-year pilot training program. The total awarded to each pilot, after consideration of the 1.9 inflation index, amounted to $147,350. The court dismissed the claims of the two students who presented no evidence of damage.
Defendants thereafter filed this appeal from the final judgment of the District Court.
The State contends that the District Court erred in holding it liable for breach of an implied contract since the State has not clearly and unambiguously waived its sovereign immunity as to implied contract actions. Absent such a clear waiver, allege appellants, the State may not be sued in its own courts.
We recognize that the modern trend among the states favors a diminution of those sovereign immunity protections available to the states. The Colorado case of Evans v. Board of County Comm’rs of El Paso County (1971), 174 Colo. 97, 482 P.2d 968, provides a striking rationale for this latent trend toward abolishing many forms of sovereign immunity previously recognized:
“The monarchical philosophies invented to solve the marital problems of Henry VIII are not sufficient justification for the denial of the right of recovery against the government in today’s society. Assuming that there was sovereign immunity of the Kings of England, our forbears [sic] won the Revolutionary War to rid themselves of such sovereign prerogatives.”
Id. at 969.
Montana similarly has endorsed this trend toward diminishing sovereign immunity protections, as evidenced by the 1972 constitutional abolishment of the State’s sovereign immunity as to all actions involving injuries to a person or property. As stated in the 1972 Montana Constitution, Article II, § 18:
“The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a % vote of each house of the legislature.”
While Art. II, § 18 diminishes sovereign immunity protections previously available to the State, it does not abolish all sovereign immunity. This Court has previously held that the waiver found in Art. II, § 18 extends only to tort actions, and not contract actions, involving injuries to a person or property. LeaseAmerica Corp. of Wis. v. State (Mont. 1981), [191 Mont. 462,] 625 P.2d 68, 71, 38 St.Rep. 398, 403. By interpreting Art. II, § 18 as applying only to tort actions, this Court effectuated the intent to prevent a constitutional waiver of sovereign immunity as to contract actions, an intent expressed by Constitutional Convention Delegate Habedank:
“. . . I think there are many instances where there may be some governmental employees [who] do some things in connection with contractual fields that we try to stick the government for where there is a good reason to maintain our governmental immunity in those situations.”
Montana Constitutional Convention, Vol. V, at 1761. Moreover, this interpretation comports with the principle that any waiver of a State’s sovereign immunity must be strictly construed. Storch v. Board of Directors of E. Mont. Region Five Mental Health Center (1976), 169 Mont. 176, 179, 545 P.2d 644, 646, citing 72 Am.Jur.2d, States, Etc., § 121.
Finding no waiver of sovereign immunity for contract actions in the Constitution, we next turn to an examination of the statutes for such a waiver, because a state cannot be sued in its own courts without its plain and specific consent to suit either by constitutional provision or by statute. See, e.g., Heiser v. Severy (1945), 117 Mont. 105, 158 P.2d 501; State ex rel. Freebourn v. Yellowstone County (1939), 108 Mont. 21, 88 P.2d 6. Read by itself, § 18-1-404, MCA, appears to provide just such an unambiguous and specific waiver of the State’s immunity as to all contract actions, express and implied alike. Section 18-1-404(1), MCA, reads:
“The state of Montana shall be liable in respect to any contract entered into in the same manner and to the same extent as a private individual under like circumstances, except the state of Montana shall not be liable for interest prior to or after judgment or for punitive damages.” (Emphasis added.)
This individual statutory provision, however, may not be read and properly understood in a vacuum. Rather, it must be read and construed in such a manner “as to insure coordination with the other sections of an act.” Hostetter v. Inland Dev. Corp. of Mont. (1977), 172 Mont. 167, 171, 561 P.2d 1323, 1326; see also Barney v. Board of R.R. Comm’rs (1932), 93 Mont. 115, 129, 17 P.2d 82, 85 (requiring a court to consider all statutes in their entirety relating to the matter at issue).
The meaning of § 18-1-404, MCA, is ambiguous when read in conjunction with the other provisions in part 4, specifically § 18-1-401, MCA. Section 18-1-404, MCA, appears to waive sovereign immunity as to both express and implied contracts, yet § 18-1-401, MCA, expressly grants district courts jurisdiction only over express contract actions. As stated in § 18-1-401, MCA:
“The district courts of the state of Montana shall have exclusive original jurisdiction to hear, determine, and render judgment on any claim or dispute arising out of any express contract entered into with the state of Montana or any agency, board, or officer thereof.” (Emphasis added.)
Because these two above-mentioned statutes, when read together, render the plain meaning of each ambiguous, we turn to the legislative history of each to determine the legislative intent, and thereby the proper statutory construction of each provision. See, e.g., Thiel v. Taurus Drilling Ltd. 1980-11 (1985), 218 Mont. 201, 710 P.2d 33.
These two statutory provisions were first enacted by the 34th Legislature in 1955. They were enacted as part of Chapter 138, which was entitled “An Act Permitting Actions on Express Contracts Against the State of Montana and Describing the Practice and Procedure Therefor.” 1955 Laws of Montana, Ch. 138. The title provides a clear indication that the legislature intended only to waive the State’s sovereign immunity as to express contracts. As stated in Dept. of Revenue v. Puget Sound Power & Light Co. (1978), 179 Mont. 255, 263, 587 P.2d 1282, 1286, the title of an act is presumed to indicate the legislature’s intent with regard to the provisions contained therein. See also Barney, 17 P.2d at 85 (stating the title of an Act “is indicative of the legislative intent and purposes in enacting it”). Because the legislature intended only to waive the State’s immunity as to express contracts, as is readily apparent from the title, we hold that § 18-1-404(1), MCA, does not subject the State to liability on implied contracts. Having concluded thus, we find that the District Court erred in finding the State liable on a breach of implied contract theory and in then awarding damages.
The students also included arguments throughout their brief which were based on contentions that the “premature termination” of the program violated their constitutional right to due process, the State’s duty to deal fairly and in good faith with its citizens, and the State’s express contract to provide a two-year integrated program. The liability and damages imposed by the District Court and appealed by the State, however, were based only on the determination that the State breached an implied contract. The students did not contend by way of cross-appeal that the District Court erred in failing to base its judgment on these other constitutional and express contract theories. We therefore will not consider the potential merits and effect of these other theories on the issues of liability and damages.
The orders of the District Court finding the State liable and awarding damages are reversed and we remand to the District Court for entry of judgment for the defendants.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and McDONOUGH concur.
|
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] |
MR. JUSTICE GULBRANDSON
delivered the Opinion of the Court.
Defendant appeals his conviction in the District Court for the Thirteenth Judicial District, Yellowstone County, of four counts of sexual intercourse without consent. We affirm.
The issues are:
1. Did the District Court violate the defendant’s right of confrontation by limiting his cross-examination of the victim named in Count I of the information?
2. Did the District Court err in admitting evidence of other crimes or wrongs as to Count II of the information?
Defendant was charged with four counts of sexual intercourse without consent, each count alleging a separate incident and a different victim. After a five-day jury trial, he was found guilty on all four counts and sentenced to a prison term of 40 years on each count, the terms to be served concurrently. He appeals on issues relating to two of the four counts against him. He argues that the errors relating to those two counts tainted the entire case.
I.
Did the District Court violate the defendant’s right of confrontation by limiting his cross-examination of the victim named in Count I of the information?
Count I of the information alleged an incident of sexual intercourse without consent on October 4, 1987, from 12:00 to 1:30 a.m. The victim testified at trial as follows: During the late evening hours of October 3, 1987, she was at the Machine and Pool Palace in Billings, Montana, with her roommate Collette. Defendant, to whom she had been introduced before, asked her to go outside and talk with him. When they were outside, the defendant stated that he wanted to move his car across the street, and asked the victim to get in the car so that they could continue their conversation. She did so. Instead of driving across the street, the defendant drove to a deserted industrial area and stopped. He refused her requests to take her back to the Machine and Pool Palace. He then fondled her and forced her to perform oral sex. Afterwards, the defendant dropped the victim off near her home and threatened to get revenge if she told anyone.
The victim waited for her roommate Collette to get home, told Collette what had happened, and decided to make a police report. On the way to the police station, the two stopped at Collette’s boyfriend’s house and at the house where the defendant was staying. During both brief stops, the victim remained in the car.
Defendant attempted to elicit from the victim on cross-examination that Collette was a prostitute and that her “boyfriend” was actually her pimp. The defense’s theory was that the victim was also a prostitute, that the acts between the defendant and the victim were consensual, and that the victim fabricated the rape story so that she would not have to face her pimp with no earnings for the evening. The District Court refused to allow this line of questioning. The Sixth Amendment to the United States Constitution provides that a criminal defendant shall enjoy the right “to be confronted with the witnesses against him.” The Montana Constitution also guarantees the right of the criminally accused to meet the witnesses against him face to face. Art. II, § 24, Mont. Const. Defendant argues that in the absence of physical evidence or other evidence corroborating the victim’s testimony, his proposed line of questioning was relevant to the victim’s veracity and essential to his right of confrontation.
Section 45-5-511(4), MCA, provides:
“No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except:
“(a) evidence of the victim’s past sexual conduct with the offender;
“(b) 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.”
Neither of the two statutory exceptions applies in this case.
This Court has considered whether the restrictions codified at § 45-5-511(4), MCA, deny a defendant his constitutional right to confront witnesses. State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043. There the Court stated that the “rules limiting inquiry into sexual conduct of the victim are essential to preserve the integrity of the trial and to prevent it from becoming a trial of the victim,” and found no denial of a defendant’s rights in these limitations. Higley, 621 P.2d at 1050-51.
Defendant maintains that the line of questioning he wishes to pursue is permissible under State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193. In that case, this Court stated that:
“[d] espite the general policy against sordid probes into a victim’s past sexual conduct, we conclude that the policy is not violated or circumvented if the offered evidence can be narrowed to the issue of the complaining witness’ veracity.”
Anderson, 686 P.2d at 200. (Citation omitted.) In Anderson, the offered evidence was that the child victim had made a prior false charge of sexual assault. The Court concluded that the trial court correctly excluded this evidence as unduly prejudicial compared to its value probative of the victim’s truthfulness, under Rule 403, M.R.Evid. Anderson, 686 P.2d at 201.
In the present case, although the defense argues that the testimony about prostitution would go toward the victim’s veracity and motivation to fabricate a rape story, we conclude that the District Court did not err in ruling that the prejudicial effect of that testimony on the credibility of the victim would outweigh its probative value. As the State points out in its brief, the defense did not offer any witnesses, other than possibly the defendant, who could testify that the victim and Collette were prostitutes. It did not offer testimony that the victim had solicited defendant to engage in sexual intercourse for money. Further, even if it were proven that the victim was a prostitute, that would not have proven consent. We hold that the District Court did not violate the defendant’s right of confrontation by refusing to allow the desired cross-examination.
II.
Did the District Court err in admitting evidence of other crimes or wrongs as to Count II of the information?
Count II of the information alleged that at about 11:00 p.m. on November 4, 1987, the defendant knowingly had sexual intercourse without consent with the second victim. The victim testified at trial as follows:
She had lived with the defendant off and on from January 1986 until July 1987. In August 1987, a son was born to them. She allowed the defendant to visit his son from time to time. At about 11:00 p.m. on November 4, 1987, the defendant came to the victim’s house claiming he had brought some diapers for the baby. The victim allowed defendant in. When she learned that he did not have diapers or wish to see his son, she asked him several times to leave. He pretended to do so, but then came back and tried to force her to perform oral sex. She struggled until she heard the baby crying. Then she gave up and told him to “get it over so I can go see my son.” Defendant forced vaginal intercourse.
Defendant threatened the victim that if she reported the incident, he would come to get her. She went into the bedroom to tend the baby and stayed there until the defendant left the house at about 6:00 a.m. The victim reported the incident to the police about a month after it happened. She stated that she delayed in telling anyone because of the defendant’s threats and because she feared no one would believe her, given her former relationship with the defendant.
On direct examination, the State elicited testimony from this victim about previous physical assaults which the defendant had committed against her. She testified about incidents in May 1986, March 1987, and July 1987. The defendant objected to the admission of this testimony on the grounds that the assaults were not similar to the crime charged here. The State successfully argued that this evidence was relevant to the issue of consent and showed that the victim had good reason to be afraid of the defendant.
In general, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person. Rule 404(b), M.R.Evid. Such evidence may be admissible for other purposes, however. Id.
In State v. Just (1979), 184 Mont. 262, 269, 602 P.2d 957, 961, this Court set forth a four-factor test to determine whether evidence of other crimes or acts is admissible in a criminal prosecution. The factors are:
1. Similarity of crimes or acts;
2. nearness in time; and
3. tendency to establish a common scheme, plan, or system; and
4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.
Defendant argues that the other crimes in this case, a series of domestic assaults, are not similar to the crime charged. He asserts that the evidence of the assaults should not have been admitted.
However, as the State argues, the other crimes on which testimony was permitted were similar to the offense charged in several particulars. They were crimes by the defendant against the same victim. They all occurred in the victim’s home. They all followed arguments between the defendant and the victim in which the defendant was angry about some perceived slight. We conclude that the District Court did not abuse its discretion in allowing the testimony about prior physical assaults of the victim in Count II.
The defendant has not appealed any issues relating to the remaining two counts on which he was found guilty. Because we have con- eluded that the defense has not shown reversible error, we need not consider whether such error tainted the trial on those two counts.
Affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and McDONOUGH concur.
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] |
MR. JUSTICE GULBRANDSON
delivered the Opinion of the Court.
Gene Miller appeals from an order of the Fourth Judicial District Court, Missoula County, denying his motion to amend the order issued November 14, 1988, which had set aside a prior decree of dissolution. We reverse.
The parties married June 14, 1985. The husband filed a petition for legal separation three months later, contending that the marriage was irretrievably broken. On October 4,1985, the wife was personally served with a copy of this petition and with a summons requiring her to answer the petition. The wife failed to file an answer or make any other appearance. Consequently, the husband moved for a default judgment. Following a brief hearing on November 8, 1985, the court entered a default judgment granting the husband’s petition for a decree of legal separation.
On September 2, 1986, attorney for the wife, Larry Meyer, filed and served upon the husband’s attorney a motion for entry of a decree of dissolution. The motion was based on the fact that more than six months had passed, without reconciliation, since the decree of legal separation. Hearing on this motion was indefinitely continued per the request of attorney Meyer, who did not take any further action in this matter. Meyer moved to California prior to issuance of notice of the petition for dissolution.
The husband filed a similar motion for entry of decree of dissolution on May 6, 1988. This motion was served on attorney Meyer, who remained the attorney of record for the wife; Meyer did not notify the wife of this motion. A hearing on husband’s motion was held on May 27, 1988. Neither the wife nor an attorney acting on her behalf were present at this hearing. The District Court entered a decree of dissolution at the conclusion of this hearing. No notice of entry of this decree was filed or served by either party.
The husband died intestate on June 19, 1988. Thereafter, on August 22,1988, the wife filed a motion to set aside the decree of dissolution and to substitute the personal representative of the estate of Gene Miller for the deceased in this matter. By affidavit offered in support of this motion, the wife alleged the District Court erred in granting the decree of dissolution as the marriage was not irretrievably broken. She contends this allegation is supported by the fact she and the deceased were traveling to Missoula to remarry when the husband suffered a heart attack and died.
On September 2, 1988, attorney for the husband’s estate filed a motion to dismiss the wife’s August 22, 1988 motion. A memorandum in support of this motion was filed on September 13, 1988.
The District Court did not enter judgment on either motion until November 14, 1988, at which time the court granted the substitution motion and ordered the decree of dissolution set aside for the following reasons: 1) the decree was void for lack of any testimony or evidence that the parties had lived apart for more than 180 days or that the marriage was irretrievably broken; 2) the wife had not received proper notice of the motion for dissolution of the marriage; and 3) the court deemed the wife’s allegations to be well taken since the attorney for the estate failed to file a brief in support of his motion to dismiss within the time required by Rule 2 of the Uniform District Court Rules. Notice of entry of this judgment was filed the same day. The District Court subsequently denied the estate’s motion to amend this November 14, 1988 judgment, and the petitioner thereafter filed this appeal.
The following issues are submitted upon appeal:
1. Did the District Court lose jurisdiction by failing to rule within 45 days of the date the motion to set aside the decree of dissolution was filed?
2. Did the District Court err in holding that the petitioner’s late filing of his brief in opposition to the motion to set aside the dissolution warranted a summary ruling in favor of the wife?
3. Did the District Court err in holding that no testimony existed indicating that the marriage was irretrievably broken?
4. Did the District Court err in determining that the wife was not represented by counsel at the time of dissolution and that service of the motion for dissolution upon attorney Meyer failed to give her proper notice?
The wife contends that the husband’s failure to file a response brief within the mandatory time limits automatically deemed the motion to set aside the judgment admitted as well taken. The wife argues that this admission “cannot then be undone by subsequent application of Rule 60(b) or Rule 59(g), M.R.Civ.P.”
Rule 2 of the Uniform District Court Rules did in fact require the husband, as the adverse party, to file a response brief to the wife’s motion within ten days after the wife filed her motion and supporting brief. The husband failed to file his brief within this period. This failure is deemed an admission by the husband that the motion is well taken. See Rule 2(b), U.D.C.R. The District Court then could, within its discretion, grant a summary ruling in favor of the wife. The court, however, failed to immediately grant such a ruling. Instead, the court waited approximately 74 days before so ruling. The court’s ruling, per Rule 2, U.D.C.R., thus was not a prior ruling, as argued by the wife, which would automatically preempt any subsequent application of Rules 60(b) and 59(g), M.R.Civ.P.
The wife next contends that the 45 day limit specified in Rules 60(c) and 59(g), M.R.Civ.P., during which a district court must rule on a motion properly before it or the motion will be deemed denied, had not expired prior to the November 14, 1988 ruling. She asserts that a notice of entry of judgment begins the running of all jurisdictional time limits. Because such a notice had not been filed after the May 8, 1988 dissolution decree, she contends that none of the post-trial motion time limits had even begun to run, let alone expire, when the court issued its November 14, 1988 order setting aside the decree. This argument, which goes beyond the clear and unambiguous language of the statute, finds no support in law.
A court is required to rule on a post-judgment motion to set aside (Rule 60(b), M.R.Civ.P.) or to amend (Rule 59(g), M.R.Civ.P.) a judgment within 45 days of the date the motion is filed. Rules 60(c) and 59(g), M.R.Civ.P., expressly state that this 45 day limit is the same as that respecting motions for a new trial as set forth in Rule 59(d), M.R.Civ.P.:
“If the court shall fail to rule on a motion for new trial within 45 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.” (Emphasis added.)
The rules clearly state that the 45 day time limit for ruling on such post-trial motions begins on the actual date the motion is filed.
No statutory provision exists, unlike that provision existing for a notice of appeal, which states that this 45 day period, in cases in which a post-judgment motion is filed prior to notice of entry of judgment, shall be treated as beginning on the day of the notice of entry of judgment. Cf. Rule 5(a)(2), M.R.App.P. (expressly stating that a prior notice of appeal will be treated as filed on the subsequent date that notice of entry of judgment is filed). We therefore hold that a notice of entry of judgment, in regard to post-judgment motions, will not affect the time within which a court must rule on the motion. However, if the notice is never filed, a moving party potentially would have an unlimited time within which to file the respective motion. Once the motion is made, however, the time frame within which the court must act begins. See, e.g., Winn v. Winn (1982), 200 Mont. 402, 408, 651 P.2d 51, 54.
When the court failed to rule on the wife’s motion to set aside the judgment within 45 days of the date the motion was filed, the matter was deemed denied and the court lost jurisdiction of the particular issue. Having so ruled, we need not discuss the other challenges to the validity of the November 8 and December 16, 1988 orders issued by the District Court.
We reverse and reinstate the decree of dissolution entered May 27, 1988.
MR. JUSTICES HARRISON, SHEEHY, McDONOUGH and WEBER concur.
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] |
MR. JUSTICE McDONOUGH
delivered the Opinion of the Court.
Julius Tresch and Joan Tresch (Tresch) appeal from an order of the Tenth Judicial District, Fergus County, granting summary judgment to respondent Norwest Bank of Lewistown, N.A. (Norwest) . We affirm.
The issues in this case are:
1. Whether Norwest breached the implied covenant of good faith and fair dealing when it denied a $3,100.00 loan requested by Tresch.
2. Whether Norwest breached a fiduciary duty owed Tresch when it denied the $3,100.00 loan.
Julius and Joan Tresch have owned and operated a dairy farm near Lewistown, Montana since 1966. For over three decades, they have done their banking business with Norwest. In 1983, Tresch increased his operating loan at Norwest to the amount of approximately $147,000.00. This note was to be paid in monthly installments and was secured by an assignment of proceeds from the dairy, and other collateral. One of the terms of this financing agreement provided that Tresch could not make any capital purchase in excess of $500.00 without the express consent of Norwest.
Shortly after receiving this loan, Tresch used advanced funds to upgrade the equipment in his dairy. This upgrading included the purchase of new milking machines. Tresch quickly became dissatisfied with these machines, because he believed that they were responsible for an outbreak of “mastitis” in his dairy herd.
Mastitis is defined as an inflammation of the mammary glands in dairy cattle. It is caused and spread by toxic microorganisms. The disease is endemic to the entire dairy industry and its presence can lead to contaminated milk and the destruction of a dairy herd. Although its cause is subject to debate, it is generally agreed that it can be caused by malfunctioning equipment, unsanitary conditions within the cows’ environment, or improper milking procedures.
Because Tresch believed that the new milking machines were the cause of the mastitis, he approached Norwest in March of 1984, for a three thousand one hundred dollar ($3,100.00) loan which would enable him to replace the machines. Norwest doubted that this purchase would cure the mastitis problem because, as it noted, the disease had existed in his dairy herd for a number of years prior to the acquisition of the new machines. It also doubted that the purchase of new milkers would generate sufficient additional income to repay the loan.
In order to confirm this supposition, Norwest contacted the local implement dealer and the dairy extension service at Montana State University to determine if the new machines were needed. This investigation supported Norwest’s original beliefs. During this inquiry, it was learned that although milking machines can cause mastitis, the primary causes are improper hygiene and sanitation, and improper milking procedures. Moreover, because the disease had been present in the herd prior to the installation of the milking machines it as doubtful that they were the cause of Tresch’s problem. Consequently, the loan was denied.
Eventually Tresch obtained funds from another source, which allowed him to purchase new milking machines. Unfortunately, the mastitis problem continued and the resulting loss of production nearly forced Tresch into foreclosure in late 1986.
Because Tresch believed these problems were caused by Norwest’s refusal to advance him the money he filed suit seeking compensatory and punitive damages for breach of the implied covenant of good faith and fair dealing and for breach of fiduciary duty. Norwest moved for summary judgment. On October 13,1988, this motion was granted. This appeal followed.
I
Tresch maintains that Norwest breached the implied covenant of good faith and fair dealing by refusing to loan him the funds necessary to purchase new milking machines. We disagree.
At the outset we note that this is an appeal from an order granting summary judgment. Summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.:
“The party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact and then the party opposing the motion must come forward with evidence supporting the existence of a genuine fact issue. Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60.
However, when reviewing such an order, this Court must review the evidence in a light which is most favorable to the non-moving party. Nitschke v. Blue Cross of Montana (1988), [231 Mont. 113,] 751 P.2d 175, 176, 45 St.Rep. 473, 475. Therefore, we must review the facts of this case in a light most favorable to Tresch in order to determine the propriety of the court’s order.
Even if this Court was to assume that the implied covenant of good faith and fair dealing applies to a lending arrangement of the nature presented in this case, the facts presented do not indicate that there was any violation of this duty. In making this determination, we look to prior decisions for guidance. In Nicholson v. United Pacific Ins. Co. (1985), 219 Mont. 32, 710 P.2d 1342, we held that:
“The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the justifiable expectations of the parties. Where one party acts arbitrarily, capriciously, or unreasonably, that conduct exceeds the justifiable expectations of the second party. The second party then should be compensated for damages resulting from the other’s culpable conduct. Nicholson, 710 P.2d at 1348.
Therefore, in order to prove that Norwest breached the covenant, Tresch must show that its decision not to advance the $3,100,000 was arbitrary, capricious or unreasonable. Under the agreed upon facts Tresch does not meet this burden.
Tresch maintains that he needed the loan in order to buy new milking machines. It was his theory, upon applying for the loan, that new machines would cure the chronic mastitis that had plagued his herd for years. Norwest doubted that this purchase would cure the problem. Norwest based its conclusion upon inquires made with an agricultural scientist at Montana State University and a local dealer who sold milking machines. Inquiry also led Norwest to believe that the new machines would not generate sufficient additional income to repay the loan.
The uncontested facts clearly establish that Norwest’s refusal to advance the funds was based upon solid business reasons. It then became incumbent upon Tresch to come forward with evidence of his own that would tend to dispute this conclusion. Barich v. Ottenstror (1976), 170 Mont. 38, 550 P.2d 395; Mayer Bros, v Daniel Richards Jewelers Inc., (1986), 223 Mont. 397, 726 P.2d 815. Tresch did not meet this burden, nor did he come forward with any other issue of material fact. In fact, as noted by the trial court, Tresch admitted in his deposition that he did not think that Norwest acted out of motives or for reasons other than those state. Therefore, the order granting summary judgment must be affirmed.
II
Tresch also maintains that Norwest breached its fiduciary duty by denying the loan. Again, we disagree.
With respect to this argument, the following provision in the loan agreement is:
“4. Borrowers shall make no capital purchases in excess of $500.00 without prior consent of the Bank.”
Tresch maintains that under this clause, Norwest had the ability to exercise “absolute managerial” control over the dairy operation by retaining the power to determine which expenditures could be made. He further states because Norwest took “complete charge” over the finances of the Tresch Dairy, it had a duty to place the interests of Tresch on par with its own interest.
Assuming arguendo that such a clause leads to the creation of a fiduciary duty, we fail to find that Norwest acted unreasonably or unfairly towards Tresch. As stated earlier, Norwest’s refusal was based upon solid business grounds and there are no facts to refute it. Accordingly, Norwest’s refusal was not a breach of any fiduciary duty which may have been owed to Tresch. We affirm.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT and GULBRANDSON concur.
|
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] |
MR. JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the District Court of the Thirteenth Judi cial District, Yellowstone County, State of Montana, the Honorable G. Todd Baugh presiding. The appellant appeals the imposition of his two-year suspended prison sentence for criminal mischief. We affirm.
In June of 1987, the appellant, Robert C. Lorash, (Lorash) and his companion, Dennis S. Hegg, were driving a pickup truck which was towing a large trailer filled with trees and debris. At the intersection of 24th Street West and Broadwater Avenue in Billings, Montana, they became involved in an altercation with Mark Richardson. Lorash and Hegg followed Richardson to a Billings residence where Richardson exited his car and went inside. Lorash and Hegg then got out of the pickup and proceeded to hit and kick Richardson’s car causing over $1,800 in damage.
Several months later, on September 4, 1987, the State filed its affidavit and motion for leave to file information with the District Court, basing felony jurisdiction on the provisions of § 45-6-101, MCA, which provides:
“(1) A person commits the offense of criminal mischief if he knowingly or purposely:
“(a) injures, damages, or destroys any property of another or public property without consent;
“(3) ... If the offender commits the offense of criminal mischief and causes pecuniary loss in excess of $300,... he shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both.”
On July 25, 1988, Lorash plead guilty to the charge. A presentence investigation report was then prepared which noted that on October 10, 1973, Lorash had been convicted of possession of marijuana, and given a three-year deferred sentence. The presentence investigation report recommended:
“Due to the fact the subject has a previous felony and sentencing was deferred, the sentence must be suspended under MCA 46-18-201(6).”
After receiving Lorash’s guilty plea to the criminal mischief charge, the District Court sentenced the appellant to two years in the Montana State Prison, but suspended the sentence and placed him on probation for two years. At sentencing, the court noted that the reason the appellant did not receive a deferred sentence as did his co-actor, Hegg, was because of the language in § 46-18-201(6), MCA, which provides in part:
“[imposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.”
The issue on appeal is whether § 46-18-201(6), MCA, is violative of Article II, § 17 of the Montana Constitution, which provides that no person shall be deprived of life, liberty or property without due process of law.
At the time of sentencing, Lorash, through counsel, argued that he should receive a deferred imposition of sentence despite his prior felony conviction and the limitation on deferred sentences imposed by § 46-18-201(6), MCA. The court responded that the legislature, in passing § 46-18-201(6), MCA, had limited its sentencing options since that statute requires there shall be no deferred sentence once a previous deferred sentence has been imposed.
We note that Lorash, through counsel, agreed at his sentencing hearing that he had received a deferred sentence in 1973 and that he did not attempt to have the 1973 conviction dismissed, or expunged, pursuant to § 46-18-204, MCA.
This Court has held that the proper standard of review by this Court is:
[T]he constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt.”
T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 P.2d 1368, 1370. We have also held that the burden of demonstrating an alleged constitutional infirmity in a legislative enactment rests upon the party raising the challenge. Matter of Kujath’s Estate (1976), 169 Mont. 128, 130, 545 P.2d 662, 663; State v. Henrich (1973), 162 Mont. 114, 121, 509 P.2d 288, 292.
Deferral of a sentence is a significant option given to the sentencing judge. It offers the possibility that an offender may later obtain a dismissal of the charges that have been filed against him. At the time the information was filed in this case, September 4, 1987, Lorash was informed that if he had served that sentence with good behavior the charges could be dismissed. Section 46-18-204, MCA (1985), states:
“Whenever the court' has deferred the imposition of sentence and after termination of the time period during which imposition of sentence has been deferred, upon motion of the court, the defendant, or the defendant’s attorney, the court may allow the defendant to with draw his plea of guilty or may strike the verdict of guilty from the record and order that the charge or charges against him be dismissed.”
Shortly before Lorash’s sentencing, an amendment was made to § 46-18-204, MCA, which became law on October 1, 1987:
“Upon dismissal of the charges, the court shall send an order directing the department of justice to expunge the defendant’s record. The order must adequately identify the defendant, such as by sex, race, date of birth, and the current status of the charges to be expunged.”
This amendment was repealed on April 6, 1989, and replaced by the following language:
“A copy of the order of dismissal must be sent to the prosecutor and the department of justice, accompanied by a form prepared by the department of justice and containing identifying information about the defendant. After the charge is dismissed all records and data relating to the charge are confidential criminal justice information as defined in 44-5-103 and public access to the information can only be obtained by district court order upon good cause shown.”
It should be noted that under 1989 Mont. Laws, chapter 463, all information concerning a charge that has been dismissed under the first sentence of § 46-18-204, MCA, becomes confidential criminal justice information (§ 44-5-103(3), MCA), and dissemination is thereby limited to criminal justice agencies. Section 44-5-303, MCA. The definition of criminal justice agency includes “any court with criminal jurisdiction,” § 44-5-103(7)(a), MCA. Courts with criminal jurisdiction are therefore entitled to receive and consider information concerning prior charges which are dismissed under § 46-18-204, MCA.
Here Lorash’s argument attacking the constitutionality of § 46-18-201(6), MCA, is moot because the 1987 amendment to § 46-18-204, MCA, was stricken and became ineffective on April 6, 1989, by approval of Chapter 463, Mont. Laws. (1989).
We find that Lorash has not sustained his heavy burden of demonstrating that § 46-18-201(6), MCA, is unconstitutional beyond a reasonable doubt, and for that reason, and all the reasons stated above, we uphold the constitutionality of § 46-18-201(6), MCA.
The decision of the District Court is affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and McDONOUGH concur.
|
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MR. JUSTICE HARRISON
delivered the Opinion of the Court.
This appeal arises from an action to foreclose a mechanics’ lien filed by Tri-County Atlas, Inc. for work and materials supplied to a construction project owned by James Brummer. The District Court for the First Judicial District, Lewis and Clark County, entered judgment in favor of Tri-County. We affirm and remand for correction of costs.
James Brummer is a general contractor who conceived and developed the construction of a professional office building located in Helena, Montana. Brummer, through his corporation, Brummer Enterprises, Inc., designed and constructed the building, and utilized subcontractors for electrical, plumbing, heating, air conditioning and other aspects of the construction. Tri-County was hired by Brummer to install the heating, ventilation, and air conditioning (HVAC) system, and the domestic plumbing in the building. The parties had no written contract but merely discussed their agreements orally.
Tri-County began work on the building in early February of 1987, and continued installation of both the HVAC system and the domestic plumbing until August, when it walked off the job because of nonpayment. In September, Tri-County filed its lien and brought this action to foreclose. Brummer counterclaimed for alleged defects in Tri-County’s workmanship.
The District Court entered judgment for Tri-County, and awarded damages, attorney’s fees and costs. Brummer raises the following issues for our review:
1. Was the District Court’s award of damages to Tri-County supported by substantial evidence?
2. Was it error for the District Court to award attorney’s fees and costs?
The standard of review is clear. We must affirm the trial court if its findings are supported by substantial evidence and are not clearly erroneous. We will not substitute our judgment for that of the District Court. Hammerquist v. Employment Sec. Div. of Montana Dept. of Labor and Industry (Mont. 1988), [230 Mont. 347,] 749 P.2d 535, 536, 45 St.Rep. 261, 262; Meridian Minerals Co. v. Nicor Minerals, Inc. (Mont. 1987), [228 Mont. 274,] 742 P.2d 456, 461, 44 St.Rep. 1516, 1523.
At trial, Tri-County alleged it was hired on a not-to-exceed basis,, plus specific amounts to be paid for additional constant air volume (CAV) and variable air volume (VAV) units. Brummer claimed Tri-County had given a flat bid of $112,000 for the entire HVAC system. The evidence was clear, however, that no final plans were submitted to Tri-County on which it could make a firm flat bid because the plans were evolving as the project developed. Additionally, there was evidence that other subcontractors were hired by Brummer on similar time-and-materials, or price-not-to-exceed bases.
Although Brummer’s counterclaim alleged the work performed by Tri-County was not done in a workmanlike manner, no evidence was produced at trial that Tri-County’s workmanship was deficient. TriCounty admitted some work was not completed, because it pulled off the job. Tri-County also admitted there were some product defects which would have been covered by the manufacturer’s warranty, had Brummer not failed to pay. However, there was no evidence the workmanship was poor. Tri-County’s witnesses and even one of Brummer’s witnesses testified that Tri-County’s workmanship was very good.
The evidence was extensive and complicated. During the four day trial, the District Court heard testimony from eleven witnesses, examined all of the exhibits and determined that Tri-County was entitled to judgment. In its Opinion, Memorandum of Decision, and Order, the District Court made the following conclusions:
“The evidence of each party was diametrically opposed to the evidence of the opposing party. The matter resolved itself into a question of which party presented the most credible evidence. If the version of the Plaintiff is accepted, the version of the Defendant must be rejected, and vice versa. As the trial progressed, it became very clear to the Court that Plaintiff presented the most credible witnesses and evidence. Defendant, on the other hand, lacked credibility to a pronounced degree. His version of the events is wholly rejected by the Court.”
We find no abuse of discretion. The findings were supported by substantial evidence in the record. The judgment of the District Court is affirmed.
Brummer’s final issue alleges the District Court erred in its award of attorney’s fees and costs to Tri-County. The first basis of the alleged error, which Tri-County admits, involves the inclusion of expert witness fees and deposition costs within the award of attorney’s fees and costs. Section 26-2-505, MCA. We remand this matter to the District Court to deduct these costs from the award.
The second basis of alleged error involved settlement negotiations between the parties. Brummer apparently offered to pay TriCounty the amount of its lien as settlement of Tri-County’s claims. Tri-County refused because it had already invested substantial amounts of money in attorney’s fees in its attempt to recover. The District Court refused to hear the evidence because it involved settlement negotiations.
Brummer cites Schillinger v. Brewer (1985), 215 Mont. 333, 697 P.2d 919, to support his claim that because Tri-County refused to accept his settlement offer, it is not entitled to attorney’s fees. However, the facts of Schillinger differ from those of this case, and do not support Brummer’s theory. In Schillinger, the District Court awarded the defendant attorney’s fees when judgment was entered for an amount less than that offered in settlement by the defendant. We reversed the award of attorney’s fees because the defendant was only entitled to costs, not attorney’s fees. If Schillinger has any application to this case, it supports Tri-County’s claim for attorney’s fees. Donnes v. Orlando (1986), 221 Mont. 356, 720 P.2d 233. TriCounty prevailed in its action and was therefore entitled to recover attorney’s fees and costs.
Affirmed and remanded for reduction of costs awarded to TriCounty in accordance with this opinion.
MR. JUSTICES McDONOUGH, SHEEHY, HUNT and GULBRANDSON concur.
|
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] |
MR. JUSTICE SHEEHY
delivered the Opinion of the Court.
E.H. Blome and Shirley A. Blome appeal from a summary judgment granted against them in the District Court, Sixteenth Judicial District, Custer County, and in favor of First National Bank in Miles City. We determine that the record discloses no genuine issue of material fact so as preclude summary judgment and so affirm the District Court.
The issues on appeal as stated in the Blomes’ brief are as follows:
1. Whether summary judgment is proper where the record discloses genuine issues of material fact and that the moving party is not entitled to judgment as a matter of law.
2. Whether the trier-of-fact could find that the Bank acted arbitrarily, unreasonably or capriciously and in violation of the Blomes’ justifiable expectations that the Bank would loan them money for the purchase of feeder cattle and to pay on their Contract for Deed with Charles McRae and Jack Ross in December of 1982.
3. Whether the trier-of-fact could find that the Bank acted arbitrarily, unreasonably or capriciously and in violation of the Blomes’ justifiable expectations by failing to give the Blomes reasonable notice that their credit was in jeopardy prior to December 23, 1982.
4. Whether the court could find that the Bank breached a contract with the Blomes when it refused to loan them money for the purchase of feeder cattle and to pay on the McRae/Ross contract in December of 1982.
5. Whether the trier-of-fact could find, assuming an absence of tortious bad faith or breach of contract, that the Blomes relied, to their detriment, on a justifiable belief that the Bank had agreed to loan money for the purchase of feeder cattle and to pay on the McRae/ Ross contract in December of 1982.
The Blomes, who had been successful farmers near Dillon, Montana, for a number of years, in 1981 sold their farm for $360,000. That summer the Blomes approached Charles McRae, co-owner of a farming and feedlot operation near Hysham, Montana, as interested buyers. Eventually the Blomes entered into a contract for deed to purchase for $1,100,000 from Charles McRae and Jack Ross, the ranching and feedlot operation at Hysham. The Blomes agreed to make and did make payments totaling $300,000 on the contract, and agreed to make annual payments of $77,872 beginning in January of 1983 until the amortized debt was paid.
Charles McRae was a director of the First National Bank in Miles City. He suggested to the Blomes that they deal with the Bank for their financing. Beginning on October 6, 1981, and ending on December 23, 1982, the Bank loaned the Blomes money on 27 occasions, each time evidencing the loans through promissory notes.
The memoranda appearing on the Bank records indicate the progress of the loan and the Blomes’ new ranching operation. On March 17, 1982, the Bank learned that Ed Blome had made a crop sharing agreement on 330 acres of land with a neighboring owner. The Bank officers expressed some dismay that the agreement was made without their knowledge. Nonetheless, on July 21, 1982, their inspection report showed an excellent crop of corn being raised, with excess silage also on hand. On November 5, 1982, the Bank noted the purchase by the Blomes of a 1970 Peterbilt truck and a 1966 Wilson grain hopper at a total cost of $14,500. At this point the Bank expressed to Shirley Blome the displeasure of the officers that these purchases had been made without consultation with the Bank.
The notation for December 23, 1982, showed that Ed Blome had approached the officers with a proposal to purchase 1,200 head of calves to utilize his existing silage. Since the finances would have to come from the Bank, the officers had presented the proposal to the Bank’s loan committee. The loan committee had decided not to allow the loan request and to decline renewal of loans for the entire upcoming year. So it was that on November 23, 1982, the Blomes were advised orally that the Bank would no longer be financing Blomes’ operations. At that time their outstanding debt to the Bank amounted to $372,131.24.
Because of the Bank’s withdrawal of support, the Blomes were unable to meet the January, 1983, payment on their contract for purchase with Charles McRae and Jack Ross. The default resulted in a complete loss of the Blomes’ investment in the ranch operation.
The Bank did not commence foreclosure until after the 1983 harvest, apparently with the consent and cooperation of the Blomes who aided the Bank in disposing of the various items of property and crops so that the debt as of the time of foreclosure had been reduced to $64,899.45 on November 29, 1983. There is a notation in the Bank records that the cooperation of the Blomes helped Charles McRae, the Bank director, who would otherwise have had to farm the unit and who was in no position to do the farming.
The Blomes filed their complaint against the Bank in the Yellowstone County District Court on October 15, 1986. A change of venue to the District Court of the Sixteenth Judicial District for Custer County was eventually granted. On December 23, 1987, First Bank moved for summary judgment which the District Court granted on May 12, 1988. This appeal followed.
This case is similar to, and in many respects controlled by our decision in Shiplet v. First Security Bank of Livingston (1988), 234 Mont. 166, 762 P.2d 242. There, with respect to the appropriate standard of review we stated:
“In order for summary judgment to issue, the moving party must show there is no genuine issue as to facts that are material in the light of the substantive principles entitling that party to judgment as a matter of law. If the moving party meets this burden, the non-moving party then has the burden of showing a genuine issue of material fact. These standards also apply to this Court when reviewing the grant or denial of summary judgment. Frigon v. Morrison Maierle, Inc. (Mont. 1988), [233 Mont. 113,] 760 P.2d 57, 45 St.Rep. 1344, and cases cited therein.”
762 P.2d at 244.
The issues presented for review by the Blomes which we have quoted above, can be boiled down to these essential questions:
(1) Was there ever an expressed or implied contract on the part of the Bank to continue to loan the Blomes money for their ranching operation, and to pay on their contract for deed with Charles McRae and Jack Ross?
(2) Was there an implied covenant of good faith and fair dealing between the Blomes and the Bank which the Bank breached?
(3) Did the Bank give reasonable notice of intention not to renew credit for the Blomes after December 23, 1982. (Arbitrary and capricious issue)?
DID AN EXPRESS OR IMPLIED CONTRACT EXIST?
This caption subsumes issues 4 and 5 first above noted as presented by the Blomes for review.
Blomes contended there was an agreement by the Bank to provide the Blomes financing for their operation as long as they needed it with repayment to be made when they were able to with respect to the operation of the ranch and the payments on the contract for deed.
Totally lacking before the District Court and here is any evidence of facts upon which an express contract could be based. The loans by the Bank were evidenced by promissory notes signed by the Blomes; the memoranda in the Bank records are simply journal reports of the progress of the ranching operations and the prospects of payment for the loans; no oral representations by any bank officers may be found which would bind the Bank to perform as the Blomes contend. In other words in this case there can be no express contract upon which the Blomes can base a cause of action.
The same problem attends the contention of the Blomes that there was an implied contract between them and the Bank. Under § 28-2-103, MCA, an implied contract is one the existence and terms of which are manifested by conduct. The evidence here is that from the time the Blomes entered into financing arrangements with the Bank, until the arrangements were terminated on December 23, 1982, their relationship was one of an ordinary bank-customer. Each time the Blomes needed financing, the Bank reviewed their progress, determined their financing needs, and in accordance therewith issued loans based on promissory notes on a short term basis. Nothing in the evidence suggests anything more than a day-to-day or month-to-month financing arrangement, based upon a review of the financial condition of the borrowers at the time the notes were executed and delivered. Particularly, there is no indication in the Bank memoranda or any oral evidence that the Bank did not expect the notes to be paid when due nor any agreement outside the notes for loans to the Blomes when they needed them, and without regard to the necessity of repayment.
Moreover, the claimed existence of an implied contract between the parties runs into legal questions which cannot be answered here on the facts. First, an implied contract the performance of which exceeded one year would run afoul of the statute of frauds, § 28-2-903, MCA. Secondly, the language of the notes in each case is clear and explicit as to due dates and payment. The claimed implied contract would have the effect of varying the terms of written instruments. So we said in Shiplet, supra:
“As to any oral representations by the Bank that the application was in fact a contract, the District Court quoted language from our decision in First National Montana Bank of Missoula v. McGuiness (Mont. 1985), [217 Mont. 409,] 705 P.2d 579, 42 St.Rep. 288:
“ ‘[E]vidence of prior oral agreements is not admissible for the purpose of altering subsequent written agreements dealing with the same subjects, and that the prior oral agreements and the written agreement will merge into the subsequent written agreement unless they are distinct and can stand independently of one another. 705 P.2d at 584.’
“Under the doctrine of merger as enunciated in McGuiness, any oral representations made by the Bank merged with the terms of the note, which then represented the contract reached between these two parties.”
762 P.2d at 245.
As a matter of law therefore, neither an express nor implied contract, nor evidence tending to support the same, was presented to the District Court so as to preclude summary judgment. We find no error on these issues.
DID THE BANK BREACH AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING?
Under the Uniform Commercial Code, every contract or duty within the code imposes an obligation of good faith in its performance or enforcement. Section 30-1-203, MCA. “Good faith” is defined in the code as “honesty in fact in the conduct or transaction concerned.” Section 30-1-201(19), MCA.
The duty of good faith may not be disclaimed by agreement between the parties, though their agreement may determine the standards by which good faith is to be measured if the standards are not manifestly unreasonable. Section 30-1-102(3) MCA.
We may assume then that there did exist between the parties, mutually, and to each other, because the instruments involved here were related to the Uniform Commercial Code, a duty of good faith in their conduct or performance. This leads us to the next issue raised by the Blomes.
DID THE BANK GIVE REASONABLE NOTICE OF ITS INTENTION NOT TO RENEW ITS FINANCING TO THE BLOMES OR OTHERWISE ACT ARBITRARILY OR CAPRICIOUSLY?
This caption subsumes issues 2 and 3 first noted above by the Blomes as proper for review.
Essentially, the Blomes are claiming that the conduct of the Bank gave rise to their justifiable expectations that the Bank would continue to loan them money for the purchase of feeder cattle, and to pay on their contract for deed. Blomes further contend that they were entitled to reasonable notice that their credit was in jeopardy prior to December 23, 1982.
In Nicholson v. United Pacific Insurance Company (1985), 219 Mont. 32, 710 P.2d 1342, this Court took pains to “more fully articulate our conception of what has been termed loosely as ‘bad faith,’ but has termed more accurately as the tort of breach of the implied covenant of good faith and fair dealing.” There this Court stated:
“. . . [w]e agree with the statement in Quigley, supra, [Quigley v. Pet, Inc. (1984), 162 Cal.App.3rd 877, 208 Cal.Reptr. 394] that the tort resulting from this breach depends on some impermissible activity. The Montana cases discussed above focus on the action of the breaching party in the relationship to find a breach of the implied covenant, not just the existence of a breach of contract.
“ . . . But whether performing or breaching, each party has a justi fiable expectation that the other party will act as a reasonable person (citing a case). The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the justifiable expectations of the parties. Where one party acts arbitrarily, capriciously or unreasonably, that conduct exceeds the justifiable expectation of the second party. The second party then should be compensated for damages resulting from the other’s culpable conduct.”
Nicholson, 710 P.2d at 1348.
Clearly, under Nicholson, a breach of implied covenant of good faith and fair dealing requires the breaching party to conduct itself in an impermissible activity, and in so doing, to act arbitrarily or capriciously. In the case now before us, evidence of such a breach of implied covenant is totally lacking. Certainly the Bank here, analyzing the financial situation of the Blomes, had a right to terminate its financing as long as it did so reasonably and not capriciously. The Bank, from the evidence here, did act reasonably and not capriciously or arbitrarily. As to notice of its intention not to renew the financing, there is no common law or statutory duty to give notice. It further appears here that the Bank gave notice to the Blomes when they applied to the Bank for additional financing to purchase a large herd of feeder cattle. The Bank officials decided that they had gone as far as they could and it was time to call a halt to their financing of the operation. That was a business decision made by the Bank which it fully had a right to make. Again, this point was covered in Shiplet, supra:
“The Shiplets’ fourth count alleged breach of the implied covenant of good faith and fair dealing. The District Court’s ruling cited authority from this Court requiring that a breach of contract must be a result of some ‘impermissible activity’ before the breaching party can be held to have breached the implied covenant of good faith and fair dealing. (Citing cases.)
“The Shiplets seek to distinguish this authority by noting in Nicholson, we held a breach of contract was not a prerequisite to a breach of the covenant, because the implied covenant of good faith is not an obligation arising from the contract itself. Nicholson, 710 P.2d at 1348. While this is true, we also stated the obligation imposed by the covenant is to act reasonably. Under this standard, we have held the ‘minimal requirement’ for breach of the covenant is action by the defendant that is ‘arbitrary, capricious or unreasonable, and exceeded plaintiffs’ justifiable expectation [that the defend ant act reasonably].’ Noonan, [v. First Bank Butte (Mont. 1987)] [227 Mont. 329,] 740 P.2d at 635.
“In this case the Shiplets had a justifiable expectation that the Bank would act reasonably by lending money on the terms agreed upon in the notes. As we found above, this was done. The evidence induced by the Shiplets fails to show arbitrary or unreasonable conduct by the Bank. The District Court was correct in granting summary judgment.”
762 P.2d at 246.
CONCLUSION
The first issue presented by the Blomes for review is that summary judgment is not proper where the record discloses genuine issues of material fact. There simply is no evidence adduced by the Blomes here that would indicate either an express or an implied contract, or a breach of the implied covenant of good faith imposed on transactions under the Uniform Commercial Code. The plight of the Blomes in this case, who lost the entire proceeds of their former farming operation in Dillon, is regrettable, but it cannot be said in this case that the Bank is legally responsible for any of the losses sustained by the Blomes. There is no genuine issue of material fact presented in this case, and the decision of the District Court to grant summary judgment in favor of the Bank is hereby affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT and WEBER concur.
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] |
MR. JUSTICE McDONOUGH
delivered the Opinion of the Court.
This appeal from the District Court of the Eighteenth Judicial District, Gallatin County, involves a dispute over public use of a road across appellant McMillan’s property. The District Court permanently enjoined McMillan from interfering with use of the road holding that the road constituted a public way. Respondent Johnson had requested the relief granted by the lower court arguing that the road was a public way by virtue of prescriptive use from approximately 1895 to 1985. We affirm.
Timberline road follows Timberline Creek up several miles from the Jackson Creek Interchange on Interstate 90. The road is on an old railroad bed built by the Northern Pacific Railway in the early 1890’s. The rail line formerly connected Northern Pacific’s main line to the Timberline coal mining camp. The camp flourished during most of the 1880’s, but died out in the early 1890’s. In 1912, the rail was removed from the bed.
Testimony at trial documented public use of the old railroad bed as a road across what is today McMillan’s property in the late 1930’s. Testimony also documented public use of the road from the early 1950’s to 1976, when McMillan purchased the land. Following McMillan’s purchase of the property, witnesses testified that public use of the road continued up until McMillan placed a locked gate on the road in 1985.
During the period from the early 1950’s to the present, various unlocked gates have been installed and in operation on the road. However, the gates were erected to keep cattle from roaming rather than to deny public access. Except for McMillan’s locked gate, there is no evidence that any other landowner has attempted to restrict public access during the long period of time that the road has been in use by the public. Hilda Peterson, McMillan’s predecessor in interest to the land involved, testified she maintained gates to keep cattle in pasture, but freely allowed all public access through the gates. Other landowners whose property is adjacent to the road also testified that they never considered denying public access, although they may have denied access if the public use had been abused. Hilda Peterson also testified that hunters had sought and obtained her permission to travel the road and hunt on her property.
Issue
Whether the District Court erred in concluding that the Timberline Road is a public road by reason of a prescriptive easement?
The public’s acquisition of a prescriptive easement on a private road may be explained as follows:
“That the public may acquire the right by prescription to pass over private land is undisputed and such is the law in Montana. To establish the existence of a public road by prescription it must be shown that the public followed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner ....
“By ‘continuous and uninterrupted use’ is meant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned by the one claiming it ... .
“This court has said that to establish a prescriptive right it must be shown that the use was adverse and not by permission of the landowner. However, the older a road the more difficult it usually is to produce the proof of actual adverse use because the witnesses are no longer usually available ....
“The fact that a road has been barred by gátes to be opened and closed by the parties passing over the land has always been considered as strong evidence of a mere license to the public to pass over the designated way. [Citations omitted.]”
Kostbade v. Metier (1967), 150 Mont. 139, 142-45, 432 P.2d 382, 384-86.
Use of an alleged easement for the full statutory period, unexplained, creates a presumption of use adverse to the owner which may be overcome by evidence that the use is permissive. Lunceford v. Trenk (1974), 163 Mont. 504, 518 P.2d 266. District courts sitting as finders of fact occupy the best position to determine if the use was permissive or adverse. Lunceford, 518 P.2d at 267.
McMillan contends that the lower court erred by finding use of Timberline Road adverse to prior owners. He points out that “the general rule is that the use of the road by another will generally be regarded as permissive where such use does not injure or interfere with the owner’s use.” White v. Kamps (1946), 119 Mont. 102, 115-16, 171 P.2d 343, 349. McMillan also contends that the fact that landowners long gated the road, and the fact that he placed a locked gate on the road in 1985, provides sufficient proof to overturn the lower court’s finding that public use established the easement.
Referring again to the standard of review applicable here, absent a demonstration by McMillan that the lower court’s determinations are “clearly erroneous”, we must affirm the lower court. Rule 52(a), M.R.Civ.P. The lower court determined that the presence of gates on Timberline Road did not overcome the presumption that the public’s use was by claim of right, adverse to McMillan’s predecessors in title. We acknowledge the rule from previous cases that standing alone, evidence of use by the public of a road obstructed by gates is insufficient to establish a prescriptive easement in favor of the public. Descheemaeker v. Anderson (1957), 131 Mont. 322, 326, 310 P.2d 587, 589. But this Court has also held that a gate constructed “not to stop people but cattle, is not enough standing alone to rebut the presumption established by such [over 50 years] long public use.” Kostbade, 432 P.2d at 386.
There is substantial evidence here to support a finding that public travelers pursued a definite, fixed course, continuously and uninterruptedly, down the old railroad bed for nearly one hundred years. The evidence of permissive use brought out by McMillan is scant. Previous landowners could only speculate that they may have attempted to bar public access if gates had been left open by travelers on the road. Hilda Peterson offered another solution to the open gate hypothetical question posed by McMillan’s counsel:
“Q. Do you think that you — if a member of the public came in there and left your gate open, did you think that you had the right to go in there and ask him to leave?
“A. I would have — yes, I think maybe I would have felt that way. I would certainly have felt like asking him to please keep the gate closed.”
(Tr. at 52) Hilda Peterson also testified as follows:
“Q. And as far as you are concerned and your dad was concerned, you gave permission to everybody to go up through there?
“A. There was no specific permission given to anybody to go in there. People went in there, that’s all.”
(Tr. at 52)
Prior to 1954, the relevant statutory period for establishing the right at issue here was ten years. Section 9015 R.C.M. (1935). Since 1953, the period has been five years. Section 70-19-401, MCA. The long public use as documented in the record sufficiently supports the District Court’s finding that Timberline Road is a public way. McMillan’s evidence purporting to demonstrate permissive use does not overcome such public use. We affirm.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT concur.
|
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] |
MR. JUSTICE McDONOUGH
delivered the Opinion of the Court.
This appeal concerns a judgment from the District Court of the Eighth Judicial District, Cascade County, declaring classification of livestock in property tax valuation unconstitutional in violation of equal protection guarantees in the United States and Montana Constitutions. The Department of Revenue (DOR) appeals this decision, and also appeals the District Court’s interpretations of applicable statutes, its decision to take judicial notice of facts denied by the DOR in answer to requests for admissions from Respondent, the Montana Stockgrowers Association (MSA), and the remedy provided the MSA for the DOR’s alleged improper assessment of taxes. We reverse the District Court’s decision on the initial issues, and thus render the issue of the appropriate remedy moot.
Issues
(1) Did the District Court err by concluding that the enactment of Senate Bill 47 and Senate Bill 283 denied MSA equal protection of the law?
(2) Did the District Court err by concluding that all livestock in Montana are business inventory?
(3) Did the District Court err by taking judicial notice of certain facts called for by the plaintiffs’ requests for admission?
(4) Did the District Court err in its interpretation of Chapter 330 and Chapter 613 of the Laws of Montana 1981?
(5) Did the District Court err by fashioning a remedy which is beyond the scope of the Uniform Declaratory Judgments Act, and § 15-1-406, MCA?
In the lower court, MSA, three members of MSA, and three stock owners brought suit seeking a declaration that the classification of livestock separate from business inventory was invalid. Both parties moved for judgment on the pleadings. The District Court granted the motion made by MSA.
The legislature’s enactment of laws affecting the rate of taxation for business inventory and livestock spawned the current litigation. In 1981, the legislature passed two bills which affected tax rates for livestock and business inventories. Senate Bill 47, entitled “AN ACT TO REMOVE LIVESTOCK, POULTRY, AND THE UNPROCESSED PRODUCTS OF BOTH FROM CLASS SEVEN AND PLACE THEM IN CLASS SIX FOR PURPOSES OF PROPERTY TAXATION; AND PROVIDING AN APPLICABILITY AND IMMEDIATE EFFECTIVE DATE; AMENDING SECTIONS 15-6-136 AND 15-6-137, MCA” appeared to mandate that livestock be valued with property defined as class six in the tax code, effective on approval. See I Laws of Montana, Chapter 330 (1981). SB 47, however, did not provide a directive to code compilers to actually amend § 15-6-136, MCA, so that livestock would be listed in the code books with class six property following its passage. Instead, and engendering some confusion, another bill also passed in 1981, accomplished the actual code amendment. Senate Bill 283, entitled “AN ACT TO EXEMPT BUSINESS INVENTORIES FROM TAXATION; PROVIDING TAX CREDITS FOR BUSINESS INVENTORY TAXES PAID PRIOR TO EXEMPTION; AMENDING SECTIONS 15-6-136, 15-6-202, 15-8-104, AND 15-24-301, MCA; AND REPEALING SECTIONS 15-24-402 AND 15-24-403, MCA; AND PROVIDING EFFECTIVE DATES” directed code compilers to amend the list of class six property contained in § 15-6-136, MCA, to include livestock. II Laws of Montana, Chapter 613 (1981). SB 283 also directed code compilers to delete business inventory from the list of class six property. The effective date of this amendment, however, was January 1, 1983.
Following the 1981 Session, the DOR recognized that the effect of the passage of SB 283 and SB 47, while clearly spelling out treatment of livestock property for the tax year 1983 when SB 283 became effective, left the classification of livestock in limbo for the tax year 1982. The title of SB 47 indicated that livestock would no longer be taxed as class seven property effective on passage of SB 47 in 1981. However, the placement of livestock in class six (which provided a lower tax rate than class seven), was not effective until SB 283 became effective, that is, in 1983. To provide for classification in the interim, the DOR drafted ARM § 42-21-120 (1981) which proposed classifying livestock as class six property for the 1982 tax year. The DOR submitted this proposal to the Legislature’s Revenue Oversight Committee. Thus, we are assured that at least the Committee scrutinized the DOR’s interpretation of SB 43 and SB 283. However, the Committee did not specifically poll the legislature on the issue of whether livestock should be treated as class six property for the 1982 tax year. Following applicable procedures, the DOR adopted the rule and taxed livestock as class six property for the 1982 tax year. In 1983, code compilers specifically listed livestock as Class six property. The legislature has not amended the statute to provide the same exemption for livestock which has been effective for business inventory since 1983.
I.
The District Court held that no distinction exists which would justify classification of livestock separate from business inventory. Therefore, according to the lower court, the classifications attempted by SB 47 and SB 283 violated equal protection guarantees found in the Fourteenth Amendment to the United States Constitution, and in Article II, § 4 of the Montana Constitution. The lower court applied both the rational basis test and middle tier analysis to conclude that the classification at issue violated equal protection guarantees.
The DOR contends that the District Court erred because middle tier analysis does not apply, and a review of the history of livestock tax treatment demonstrates that livestock has always been reasonably classified as a distinct type of property. MSA responds that the District Court correctly concluded that no distinction exists between livestock and business inventory which would justify disparate tax treatment under state and federal equal protection guarantees.
Initially, we note that middle tier scrutiny does not apply in this case. The District Court’s decision to apply middle tier analysis rests on its interpretation of Article XII, § 1 of the Montana Constitution, which reads:
“Section 1. Agriculture. (1) The legislature shall provide for a Department of Agriculture and enact laws and provide appropriations to protect, enhance, and develop all agriculture.”
The lower court held that the interest in agriculture possessed by MSA resulting from the constitutional provision mandated middle tier scrutiny citing Butte Community Union v. Lewis (1986), 219 Mont. 426, 712 P.2d 1309. Butte Community Union held that the guarantee to the needy to receive state assistance as provided by Article XII, § 3(3) of the Montana Constitution, mandated middle tier scrutiny of classifications burdening certain individuals’ interest in obtaining welfare benefits. We disagree that Butte Community Union provides the rule for this case.
Article XII, § 1 requires the Legislature to “enact laws and provide appropriations to protect, enhance, and develop agriculture”. We disagree. Article XII, § 1, imparts to stock growers a constitutionally significant interest in tax classifications. The language provides a broad directive whose specifics are implemented through legislative decision, not by constitutional mandate. Thus, it is in no sense a self-executing provision which can be enforced by this Court. See generally 16 Am. Jur. 2d Constitutional Law § 143. Moreover, the power to exempt particular classes of properties is specifically enumerated under Article VIII, § 5 of the Montana Constitution. Reading this provision with the vague instruction to enact laws to benefit agriculture in Article XII, § 1, leads us to conclude that middle tier scrutiny is not required. Therefore, we reverse the District Court and hold the middle tier analysis inapplicable.
The proper test for the classification at issue here is the rational basis test. As explained by the United States Supreme Court, to survive scrutiny under the rational basis test, classifications must be reasonable, not arbitrary, and they must bear a fair and substantial relation to the object of the legislation, so that all persons simi larly circumstanced shall be treated alike. Eisenstadt v. Baird (1972), 405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349, 359. In applying this test the Court in Eisenstadt framed the inquiry as:
“whether there is some ground of difference that rationally explains the different treatment . . .”
Eisenstadt, 438 U.S. at 447, 92 S.Ct. at 1035.
Decisions by this Court have explained and employed the rational basis test to determine whether various tax classifications pass equal protection muster:
“Equal protection of the law is seldom, if ever, obtained; and because of the very frailty of human agencies, the authorities all recognize the right of the legislative branch of government to make reasonable classifications of subjects, for property or occupation taxes * * * and if the classification is reasonable, and if all of the subjects within a given class are accorded the same treatment, the legislation cannot be said to deny to anyone within such class the equal protection of the law, even though the burden imposed upon him may be more onerous than that imposed upon a member of another class, [citing cases] But to justify such discriminatory legislation, and avoid the condemnation of the Fourteenth Amendment to the federal Constitution, the classification must be reasonable — that is, must be based upon substantial distinctions which really make one class different from another.”
Peter Kiewit Sons’ Co. v. State Board of Equalization (1973), 161 Mont. 140, 147, 505 P.2d 102, 106-07 (quoting State ex rel. Schulz-Lindsay v. Board of Equalization (1965), 145 Mont. 380, 403 P.2d 635; emphasis in original). An older case concerning tax classifications reflects the same judicial deference for legislative classifications of taxable property in analyzing equal protection guarantees:
“A classification is not open to objection unless it precludes the assumption that the classification was made in the exercise of legislative judgment and discretion. [Citation omitted.]
“Any classification is permissible which has a reasonable relation to some permitted end of governmental action. [Citations omitted.]
“When there is a difference between various properties, it need not be great or conspicuous in order to warrant classification. [Citations omitted.] . . .
“It makes no difference that the facts on which the classification is based may be disputed or their effect opposed by argument and opinions of serious strength. It is not within the province of the courts to arbitrate any such contrariety. [Citation omitted.]”
Bank of Miles City v. Custer County (1933), 93 Mont. 291, 296-97, 19 P.2d 885, 887.
Under this authority, the issue here is whether there exists a distinction between business inventory and livestock sufficient to justify a classification which exempts business inventory from taxation while taxing livestock at 4% of its market value. The Colorado Supreme Court faced a similar question on different tax treatment for mobile homes and other residential property, and in disposing of the appeal, the Court explained the operation of the rational basis test in judicial inquiry over such distinctions:
“[A]fter deciding that movable structures have been placed in a separate class for taxation, we need now only decide whether the legislature could have constitutionally treated and classified movable structures differently than conventional residences .... If the classification conceivably rests upon some reasonable considerations of difference or policy, there is no constitutional violation. The burden is therefore on the one attacking the classification to negative every conceivable basis which might support it, at least where no fundamental right is imperiled.”
American Mobile Home Association, Inc. v. Dolan (Colo. 1976), 553 P.2d 758, 762. (Emphasis added.)
The record leaves no doubt that the burden MSA must bear has not been met. The State has affirmatively demonstrated not only conceivable bases for different treatment, the State has answered MSA’s contentions with actual policy reasons submitted to successive legislatures justifying different treatment of livestock and business inventory. For example, a study completed in 1966 for the Montana Legislative Council Subcommittee on Taxation pointed out certain problems in assessing business inventories, and outlined improvements for assessing livestock. The Study recommended an exemption for business inventories, but not for livestock. Other legislative materials also demonstrated differences in livestock and business inventory justifying disparate treatment. For example, one legislator contrasted the difference between breeding stock and business inventory pointing out that breeding stock is not property held for sale, rather, it is property held to produce products for sale. (Minutes of the Senate Taxation Committee, March 6, 1987.) Another legislator, arguing against a proposal which would have reduced rates on livestock in 1977, pointed out his constituency’s reliance on livestock property to raise revenue for local government. (Minutes of the Senate Taxation Committee, April 6, 1977.) These legislative materials support finding that the legislature rationally decided livestock and business inventory should be treated differently for property tax purposes.
Furthermore, the legislature has always made a distinction between livestock and stocks of merchandise of all sorts, the classification which formerly covered business inventories. For example, in 1919 the legislature provided for Montana’s first property tax classification system. Laws of Montana, Chapter 51 (1919). Livestock and merchandise of all sorts appear in the 1919 classification system in the same tax class, but are listed separately.
The separation of livestock and merchandise within the same class existed in Montana law until 1975. In 1975, the legislature went further in distinguishing between these properties by placing them in separate tax classifications with different percentages of taxable value. See II Laws of Montana, Chapter 507 (1975). The legislature once again grouped livestock and business inventories in the same class in 1979, but maintained a separate listing in the code for the two types of properties. Section 15-6-136, MCA. Of course, finally, the separate treatment received by livestock and business inventories in 1981 created the current dispute. The history of separate treatment, and the legislative debates concerning the proper classification of business inventory and livestock, support the conclusion that the different tax treatment for the two types of property is justified.
Other conceivable differences between the two types of property also support this conclusion. For example, one could effectively contrast the distributions of livestock property as compared to placement of business inventories in Montana. Many counties have an abundance of livestock and little in the way of business inventories. These and doubtless other conceivable differences in use, productivity, and discoverability serve to justify the classification at issue here. Thus, the legislature acted rationally in classifying the two properties differently, and continuing the tax on livestock serves the legitimate state interest in raising revenue. We reverse the District Court and hold that the classification at issue passes muster under the applicable equal protection analysis.
II.
The District Court also erred in holding that livestock consti tutes business inventory under § 15-6-202(5), MCA. Subsection (5) defines business inventory as:
“ ‘Business inventories’ includes goods primarily intended for sale and not for lease in the ordinary course of business and raw materials and work in progress with respect to such goods. Business inventories do not include goods leased or rented or mobile homes held by a dealer or distributor as part of his stock and trade.”
Section 15-6-202(5), MCA. The District Court took judicial notice of the “fact” that livestock property by and large becomes goods destined for sale for food consumption, and thus concluded that livestock constituted business inventory under the subsection.
In construing statutory definitions according to the intent of the legislature, it is fundamental that the specific prevails over the general. Section 1-2-102, MCA. The intent of the legislature in inserting livestock as class six property through SB 283, and deleting business inventory through the same bill, obviously indicates that the two types of property are to receive separate treatment. In addition: § 15-l-101(i), MCA, specifically defines livestock; § 15-24-902, MCA, continues to provide an assessment methodology for taxing livestock; § 15-8-201, MCA, provides that livestock is subject to the general assessment date of the tax code; and § 15-8-706, MCA, maintains a reporting requirement for assessors of livestock. Construction of the definition of business inventory to include livestock would be to presume that these assessment statutes are superfluous. Such a construction is to be avoided. Section 1-2-101, MCA. Finally, even though business inventory, a class of property formerly denoted as “stocks of merchandise of all sorts”, has at times been taxed at the same rate as livestock, it has always appeared in the tax code separately from livestock. We find nothing in the record demonstrates that the legislature intended to depart from the historically separate treatment of the two properties. Thus, for all the reasons stated above on this issue, we reverse the District Court.
III.
The District Court memorandum records its decision to take judicial notice of facts alleged by the MSA as follows:
“1. Judicial Notice
“The Defendant’s [sic] denied certain requests for admissions stat ing the requests called for legal conclusion. The Plaintiff’s [sic] request this Court take judicial notice of the matters denied by the Defendant’s [sic].
“Specific requests denied by the Defendant [sic] are as follows: (numeric references correspond to Plaintiffs’ numeration)
“1. a commercial enterprise which raises livestock intended for sale in the ordinary course of business constitutes a ‘business’;
“2. that livestock are things which are movable at the time of identification to a contract for sale;
“3. that livestock constitute ‘personal property’;
“4. that ‘inventory’ designates personal property held for sale in the ordinary course of business;
“5. that livestock raised and intended for sale in the ordinary course of business constitute ‘inventory’;
“6. that livestock raised and intended for sale in the ordinary course of business constitute ‘business inventory.’
“The Defendant’s [sic] denials of the above referenced requests for admissions were improper. The matters requested to be admitted are not subject to reasonable dispute. Those matters are ‘generally known within the territorial jurisdiction’ of this Court and are ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.’ Those are the standards governing judicial notice of facts. Rule 201, Montana Rules of Evidence. Therefore, this Court takes judicial notice of the above mentioned facts.”
We have held on the prior issue that livestock is not included in the definition of business inventory for property tax classification. Thus, at least in the context relevant here, it is obvious that the District Court incorrectly noticed “facts” supporting a legal interpretation of two separate property classifications as one classification. This construction violates the rule that:
“[TJechnical words and phrases and such others as have acquired a peculiar and appropriate meaning in law . . . are to be construed according to such peculiar and appropriate meaning or definition.”
Section 1-2-106, MCA. Here, the tax code supplies the definitions applicable for determining appropriate tax treatment of livestock and business inventory. We reverse the District Court’s decision to take judicial notice of the terms in MSA’s requests for admissions.
IV.
The District Court ruled that the passage of SB 43 and SB 283 created an ambiguity in the proper classification of livestock which must be construed against the taxing authority. This conclusion is also erroneous and we hereby reverse on this issue.
The directive provided by passage of SB 283 that livestock be specifically included in § 15-6-136, MCA, supports the DOR’s argument that no ambiguity exists in regard to tax treatment of livestock for the tax year 1983. Since 1983, the legislature has not amended § 15-6-136 to exempt livestock from taxation. For the tax year 1982, the title of SB 43 demonstrates legislative intent to place livestock in class six effective as of the passage of SB 43. But more specifically, the effect of passage of both SB 43 and SB 283 was spelled out in a coordination instruction attached to SB 283:
“Section 5. Coordination instruction. Senate Bill 47, introduced in the 47th legislature, removes livestock, poultry, and the unprocessed products of both from class seven and places them in class six for purposes of property taxation. If Senate Bill 47 is passed and approved, then Section 1 of this act [SB 283] is to be replaced with the following section:
“Section 1. Section 15-6-136, MCA, is amended to read:
“15-6-136. Class six property — description — taxable percentage. (1) Class six property includes:
“(a) livestock and poultry and the unprocessed products of both;” II Laws of Montana, Chapter 613 at p. 1404 (1981). The coordination instruction attached to SB 283, the same bill which provides the exemption for business inventory, conclusively demonstrates that livestock property was not included in the exemption provided for business inventory. Therefore, the District Court erred in concluding that the statute’s treatment of livestock was ambiguous.
As noted in the facts surrounding this dispute, SB 283 was not effective until the 1983 tax year. Thus, as the District Court correctly pointed out, SB 283 provides no directive as to treatment of livestock for the tax year 1982. Nevertheless, the effect of SB 43 and SB 283 was sufficiently unambiguous that the DOR drafted and passed a rule which was sent to the Revenue Oversight Committee governing treatment of livestock for the tax year 1982. Moreover, even if SB 47 and SB 283 were ambiguous as to the types of property included in the exemption for business inventory, such an ambiguity relative to exemptions is generally strictly construed against the taxpayer, not against the taxing authority. See Montana Bankers Association v. Department of Revenue (1978), 177 Mont. 112, 580 P.2d 909. Finally, as passage of the rule providing for class six treatment of livestock indicates, the delay in the actual code amendment was only a mistake in timing, not an ambiguity in tax treatment. Therefore, we hold that the passage of SB 47 and SB 283 properly classified livestock separately from business inventory, and we reverse the District Court on this issue.
V.
The last issue here concerns whether the District Court erred in deciding the appropriate remedy for the improper assessment of the MSA’s property. Our decision that the DOR properly assessed the MSA’s property moots this issue. Therefore, we reverse on all relevant issues and remand for proceedings in accordance with this opinion.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER, HARRISON, HUNT and GULBRANDSON concur.
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] |
MR. JUSTICE HUNT
delivered the Opinion of the Court.
Jeral L. Bos (husband) appeals from the distribution mandated in the dissolution of marriage decree entered by the District Court of the Eleventh Judicial District, Flathead County. We affirm.
The issue raised on appeal is whether the District Court properly distributed the marital estate when it considered a lump sum Workers’ Compensation disability award.
Royce (wife) and Jeral (husband) Bos were married on October 27, 1973. On February 13, 1986, wife filed a petition for dissolution of the marriage and for the equitable distribution of the marital estate. A hearing on the matter was held on June 2, 1987. On February 18, 1988, the District Court entered its findings of fact and conclusions of law and decree dissolving the marriage and dividing the marital property. The findings of fact and conclusions of law were twice amended.
When dividing the marital property, the District Court considered several facts pursuant to § 40-4-202, MCA. Among the facts considered was a lump sum Workers’ Compensation award paid to husband which is the subject of this appeal.
On January 9, 1978, husband was injured while working as a carpenter in Whitefish, Montana. On December 26, 1985, the Workers’ Compensation Division approved a final settlement that resulted in a net award of $35,219.59. From that amount, husband paid $26,039.55 in marital obligations and the remainder on living expenses.
Upon distribution of the marital estate wife received property with a net value of $24,608.25 and husband received property with a net value of $24,037.69. Husband argues that the District Court erred in the distribution because the marital estate would have had a lesser net value had husband’s Workers’ Compensation award not been applied to reduce marital debts. We disagree.
In In re the Marriage of Jones (Mont. 1987), [229 Mont. 128,] 745 P.2d 350, 44 St.Rep. 1834, we held that where a lump sum Workers’ Compensation award of husband was commingled in a marital account and later used to reduce marital debts, such was includable in the marital estate. Further, we upheld the District Court’s determination that wife was entitled to one-half of the marital estate notwithstanding the reduction of marital debts by application of husband’s benefits.
In the present case, as in Jones, husband received a Workers’ Compensation award in which the funds were used to reduce marital debts. In applying the funds to reduce the marital debt, husband placed the funds in the marital estate thus, commingling the funds.
Where the District Court based its distribution of marital assets on substantial credible evidence, it will not be overturned absent a clear abuse of discretion. In re the Marriage of Stewart (Mont. 1988), [232 Mont. 40,] 757 P.2d 765, 767, 45 St.Rep. 850, 852. In light of our holding in Jones, there was no abuse of discretion.
Affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, McDONOUGH, HARRISON, WEBER and GULBRANDSON concur.
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MR. CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
Defendant was found guilty by jury trial in District Court, Eighth Judicial District, Cascade County, of the offenses of felony burglary, in violation of § 45-6-204(1), MCA, and felony sexual intercourse without consent, in violation of § 45-5-503(1), MCA. Defendant was sentenced on November 9, 1988, to the Montana State Prison to concurrent terms of ten years for each offense with five years suspended on each offense. Christofferson appeals only the issue of the burglary charge. We affirm.
The issue here is whether the District Court erred in denying defendant’s motion to dismiss the burglary charge at the close of the State’s evidence.
In December 1987 D.F. was residing in a split level home with her three children, daughter K.F., daughter R.F., and son, M.F. Also living in the house was G.T., who attended vocational school in Great Falls.
Defendant was an acquaintance of D.F., and he had been over to her house on several occasions. On Friday, December 4, 1987, D.F. left Great Falls for the weekend. She took R.F. and M.F. with her and left K.F. and G.T. at home. Defendant and D.F. had a conversation before she left for Livingston. The evidence was disputed, but defendant claims that he volunteered to check on the children in Great Falls. According to him, D.F. did not say yes or no. D.F., on the other hand, stated that she told him not to bother checking on the children.
Defendant came from the bars in the Great Falls area to the residence in the early hours of Saturday morning. G.T. and several friends were watching television in the downstairs family room when Christofferson came calling. G.T. testified that he recognized defendant from his previous visits and defendant told G.T. that he was checking on them because D.F. had sent him.
Defendant stayed for nearly an hour, started to leave and then dropped a beer bottle on the floor. He cleaned up the spill, and G.T. testified that defendant stated he was leaving and went upstairs. G.T. heard the front door close.
G.T. came upstairs about one-half hour later and found defendant still in the house. G.T. asked defendant what he was doing and Christofferson assured G.T. that he was going to finish his beer and then leave. G.T. left to go to the grocery store and when he returned he did not see defendant. He returned downstairs to the family room and was shortly thereafter alarmed by a loud crash. K.F. ran downstairs calling for his help. G.T. went upstairs and saw defendant in the yard with his pants unzipped.
K.F. had been upstairs watching television. After friends of hers left, she changed into her pajamas (a tee shirt and underwear) and went to lie on the couch and watch television before falling asleep. She testified that she woke up when she felt someone’s hand in her underwear. She felt a finger penetrate her vagina. She was turned on her back and the male figure performed oral sex on her.
K.T. knew that it was a male and she could smell alcohol, but it was too dark to see who the person was. When the male committed oral sex, she kicked him and knocked him down and into a table. At that point, she got up and ran downstairs toward G.T.
The only issue which challenges the decision of the District Court is whether the District Court erred in denying defendant’s motion to dismiss the burglary charge at the close of the State’s case-in-chief.
On appeal, defendant does not contend that there was insufficient evidence to support his conviction of sexual intercourse without consent. He does, however, appeal the decision of the District Court that there was sufficient evidence regarding the burglary charge to go to the jury for its consideration.
The standard of review is: “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. Just (1979), 184 Mont. 262, 277, 602 P.2d 957, 965; cited in State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085; State v. Keil (Mont. 1988), [231 Mont. 187,] 751 P.2d 680, 45 St.Rep. 532; State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 44 St.Rep. 874. Based upon § 46-16-403, MCA, which states that the District Court may dismiss an action and discharge the defendant, “[w]hen, at the close of the state’s evidence . . . the evidence is insufficient to support a finding or verdict of guilty,” we have said that a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict. State v. Courville (Mont. 1989), [236 Mont. 253,] 769 P.2d 44, 46 St.Rep. 338; State v. Matson, supra.
The evidence presented by the State to prove the burglary charge was established through the testimony of G.T. G.T. testified that when defendant appeared at the residence, he gained entry by telling G.T. that D.F. had told him (defendant) to check in on G.T. and K.F. D.F., however, stated that she told him not to bother. Defendant acknowledged at trial that D.F. did not tell him to go to the house. The defendant gained entry into the house by deceit.
After being in the house, defendant twice told G.T. that he was leaving. The first time Christofferson went upstairs, and G.T. heard the front door close. The second time was when G.T. found Christofferson still in the house some time later, asked him what he was doing there, and was told by defendant that he was on his way out.
Even after this, defendant continued to stay, committing the act of sexual intercourse without consent upon K.F.
Burglary is defined in § 46-6-204, MCA, and provides:
“(1) A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein.”
In the recently-decided case of State v. Courville, supra, we were faced with a situation similar to that here. In Courville, it was disputed whether defendant was invited or entered unlawfully. The victim did not remember inviting defendant into her house but testified that she did not mind if he stayed to sleep on the couch. The victim went upstairs to her room and was later choked and sexually assaulted by the defendant.
This Court, in Courville, pointed out that the burglary statute was written in the disjunctive, that is, a person commits the offense of burglary if he “enters or remains unlawfully.” Defendant contends that he was initially invited into the house. Although this jurisdiction has not had previous opportunity to consider whether entry by fraud, deceit, or pretense is an “unlawful entry,” other jurisdictions have. The Kansas Supreme Court held in State v. Maxwell (Kan. 1983), 234 Kan. 393, 672 P.2d 590, that entry into a dwelling obtained by fraud, deceit, or pretense is an unauthorized entry for the purposes of burglary. We hold that the defendant entered by deceit and was properly found guilty of burglary.
Regardless of whether Christofferson entered unlawfully, there was sufficient evidence to show that he remained unlawfully. In Courville, we looked to State v. Watkins (1974), 163 Mont. 491, 518 P.2d 259, and State v. Mathie (1982), 197 Mont. 56, 641 P.2d 454, where we stated: “when a person exceeds the limits of his privilege by remaining on the premises longer than is permitted, he thereby transforms his originally invited presence into a trespass that can form the basis of a burglary charge.”
The record establishes that defendant did not have the privilege of entering D.F.’s residence on December 4, 1987, but, even if he had entered with the privilege of doing so, he remained unlawfully in the house when he committed the offense of sexual intercourse without consent upon the person of K.F.
We hold that there was no abuse of discretion by the District Court in denying defendant’s motion for a directed verdict regarding the burglary charge. There was sufficient evidence to support the submission of the charge of burglary to the jury for its determination.
Affirmed.
MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.
|
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MR. JUSTICE GULBRANDSON
delivered the Opinion of the Court.
The father, Thomas Johnson, appeals from the final custody decree entered by the Second Judicial District Court, Silver Bow County. The court denied the father’s motion to modify the current joint custody arrangement so as to appoint him, instead of the mother, the primary physical custodian of their son. We affirm.
The following issues are presented on appeal:
1. Did the District Court err in failing to find that the best interest of the child required a modification of the present custody arrangement?
2. Did the District Court’s adoption of the petitioner’s Findings of Fact, Conclusions of Law and Final Decree indicate that the court failed to properly consider the facts or render its independent judgment on the matter?
The parties married October 23, 1978. A son was born to this marriage. When the marriage was dissolved on October 3, 1984, the court awarded each parent joint custody of their son. The custody arrangement provided that each parent would have physical custody of their son on alternating days.
In October of 1985, the mother filed a petition for modification of this alternating physical custody arrangement. The father filed a cross-petition for modification, requesting the court to grant him primary physical custody of their son. He alleged that the best interest of the child demanded such a modification because the mother did not provide proper nourishment or care for their son’s physical or educational needs. Following a hearing on the matter, the District Court granted the mother’s motion and awarded her primary physical custody of their son. Both parents retained joint legal custody of the child. The father generally was entitled to visitation every Tuesday and Thursday, every other weekend, and for one month in the summer. The court’s modification decree was issued after the court found that the mother provided proper care for their son and that the best interest of the child demanded a modification as the alternating physical custody schedule was confusing to the son. The court also had found that the daily contact between the parents be cause of this alternating custody schedule continued the father’s hostility toward the mother.
In July of 1988, the mother gave notice that she was moving to the State of Washington. Her reasons for moving included wanting to be closer to her family and desiring a better job with opportunities for future advancement. She left her son with the father for a few weeks in July while looking for a job and a home in Washington. She returned to Montana and began collecting her belongings in anticipation of her move with their son to Redmond, Washington, in August.
On August 3, 1988, the father filed a motion to modify the custody order so as to grant him primary custody and to prevent the mother from taking their son out of Montana. A few days later, the mother proceeded with her intended move, taking their son with her.
Hearings were not held until January 9, 1989, on the father’s modification motion, the father’s November 22, 1988 contempt motion, and the mother’s motion for child support. (The father had moved the court to order the mother in contempt of court because he alleged she had denied him his visitation rights.) Following hearing on the motions, the court denied the father’s modification motion. The court found that the son’s best interest would be served by retaining the mother as primary physical custodian. The father remained entitled to reasonable and open visitation with their son. The court also ordered the parties to negotiate child support obligations. The father appeals from this final custody decree.
The record in this case reveals that both parties are good parents who love their son and desire to have him with them. Both were able to share a comparatively equal amount of time with their son while they both lived in Butte, Montana. However, the parties now live over 400 miles apart, and therein lies the root of the problem giving rise to this appeal.
We note at the outset that a parent with joint custody of a child is entitled to change her residence, subject only to the power of the court “to restrain a removal which would prejudice the rights or welfare of the child.” Section 40-6-231, MCA. Absent such prejudice, a move by itself will not constitute grounds sufficient to enable the other parent to obtain a modification of the terms of a joint custody arrangement. See In re Marriage of Paradis (1984), 213 Mont. 177, 180, 689 P.2d 1263, 1265.
The father contends that the welfare of their son was prejudiced by the move and that the best interest of their son necessitated awarding the father primary physical custody because their son had already been integrated into the father’s family and into the Butte community and school. The father argues that such an award is necessary to prevent destruction of his son’s relationship with friends, family, school, and the community of Butte, a destruction threatened by the mother’s move out of the State.
The court did not find this integration argument persuasive as to the best interest of the child in this case, and neither do we. The father did not move to terminate the joint legal and physical custody. Rather, the father moved only to modify the joint custody provisions so as to provide him, and not the mother, with the primary physical custody of their son. The integration rationale found in § 40-4-219, MCA, which applies only to proceedings to terminate joint custody, therefore are not applicable to this case. See, e.g., In re Custody of A.L.S. (Mont. 1987), [229 Mont. 297,] 747 P.2d 192, 44 St.Rep. 1979; In re Marriage of Gahm (1986), 222 Mont. 300, 722 P.2d 1138. Moreover, the son has readily adjusted to and also become integrated into his extended family, school and community in Redmond, Washington. This integration of a child into the homes and community of both parents is the necessary outcome and goal of a joint custody arrangement; integration thus may not serve as a justification for a modification of the terms of a joint custody decree. See Paradis, 689 P.2d at 1265.
The record also fails to show any other factors, such as those listed in § 40-4-212, MCA, which would lead the court to determine that the son’s best interest would be served and preserved by giving primary physical custody of the child to the father. The father alleged that his son’s mental, moral and physical health was adversely affected by the mother’s drinking and frequenting of bars in the Redmond area. The court, however, held otherwise. We will not reverse the District Court’s findings unless they are clearly erroneous. As stated in Rule 52(a), M.R.Civ.P.:
“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
The evidence indicated that the mother did in fact go out with a friend and have a “couple of beers” once a week or so. However, the son was not left alone at such times. He stayed with his grandparents or his aunt and cousins. Further, the mother testified that she did not drink to excess. We therefore hold that the District Court’s finding that the mother was a caring and loving parent (Finding #13) was not clearly erroneous, and the court did not abuse its dis cretion in concluding that the father’s allegations were groundless (Conclusion #4) and that the mother’s primary physical custody remained in the best interest of the child.
The father’s second argument is that the District Court’s adoption of the mother’s proposed findings of fact and conclusions of law illustrated the court’s failure to use its independent judgment as is required by law. Further, the father argues that several of the findings issued by the District Court are not supported by the evidence.
This Court has previously stated that a district court may adopt one party’s proposed findings of fact. Kowis v. Kowis (1983), 202 Mont. 371, 379, 658 P.2d 1084, 1088. The court errs in adopting a party’s proposed findings only if the court does so “without proper consideration of the facts” and with a lack of independent judgment. In re Marriage of Callahan (Mont. 1988), [233 Mont. 465,] 762 P.2d 205, 209, 45 St.Rep. 1639, 1644. This Court will not overturn a district court’s findings and conclusions simply because they are based upon those submitted by counsel if:
“[the] findings and conclusions are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and are supported by the evidence.”
Kowis, 658 P.2d at 1088.
The record in the present case indicates that the court properly considered all the pertinent facts during a hearing conducted several weeks before the court issued its findings and conclusions. The court’s conclusion, that the best interest of the son entailed leaving him in the primary physical custody of his mother, was rendered after the judge himself questioned the child. The findings in this case are sufficiently comprehensive and pertinent to the issue raised by the father. Moreover, the findings, when viewed as a whole, are supported by existing evidence.
The father also argued that the court’s decision to award primary physical custody of their son to the mother denied him his right to joint custody. This argument would have been a proper subject for an appeal following the 1986 modification decree, which awarded the mother primary physical custody. This appeal, however, is only from the decree denying the father primary physical custody of his son, and as such, the argument is not only irrelevant to this appeal but actually counterproductive to the father’s contention that he should have been awarded primary physical custody. We therefore decline to address this argument.
The decision of the District Court is affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT concur.
|
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MR. JUSTICE WEBER
delivered the Opinion of the Court,
This is an appeal from a ruling of the District Court of the Thirteenth Judicial District, Yellowstone County, granting long-term custody of R.T.L.P. to his natural grandmother and her husband. Mother appeals. We affirm.
The issues presented for our review are:
1. Did the District Court err in determining that R.T.L.P. was a “youth in need of care?”
2. Is the granting of long-term custody until age 18 the equivalent of a termination of parental rights, requiring that the statutory factors of termination be established?
3. Was the mother constitutionally entitled to effective assistance of counsel?
R.T.L.P. was born in Montana on February 5, 1983. The family moved to Wisconsin where they resided until 1984. In 1984 R.T.L.P.’s mother and father separated and the state of Wisconsin began an investigation into the family situation. In violation of a Wisconsin court order, mother moved to Missoula, Montana on August 15, 1984, with R.T.L.P. and his baby sister. At that time R.T.L.P. was seventeen months old and the sister was two months old. Mother claims she left Wisconsin because she was afraid of physical harm from her husband. Upon arrival in Montana, mother and her children moved in with the maternal grandmother and her husband.
Upon their arrival, the grandmother immediately noticed that the 2 month old baby appeared very sick and that the infant had a burn on her body. Grandmother made an appointment with a doctor and both the grandmother and the mother took the baby to the doctor on August 17, 1984. The baby was diagnosed as a “failure to thrive” baby and a letter from the doctor began by stating: “To Whom it May Concern: This child suffered from severe malnutrition.” Efforts to feed the infant resulted in a perforated bowel. On August 20 the infant was flown to Salt Lake City, Utah, for further medical care, but the infant died on August 31, 1984. While the cause of death was listed as septicemia with meningitis, reports from both the Missoula doctors and the Salt Lake City doctors revealed that the infant was in a very weakened physical condition.
The grandmother testified that for the few days in which she observed the mother care for the child, the mother was feeding the infant diluted formula, and also that she allowed the infant to cry all night rather than feeding her. She testified that the mother never held or cuddled the baby.
After the funeral of the baby sister, R.T.L.P. spent five weeks with an aunt who lived in Idaho. Mother made no contact with R.T.L.P. during this time.
The state of Wisconsin continued its involvement with the family, culminating in an award of temporary custody of R.T.L.P. to the grandmother. Mother agreed to this custody arrangement. R.T.L.P. and his mother resided with the maternal grandparents from August 1984 until October 1986. During this time the grandparents took care of R.T.L.P. Mother would occasionally leave the home for periods of up to 4 to 6 weeks at a time, and during these absences she maintained little or no contact with her son. When the grandparents moved to Billings, mother and R.T.L.P. moved with them.
In May 1986, mother moved out of the grandparents’ home and moved in with a man whom she later married. R.T.L.P. remained with his grandparents who assumed his total care. After this, mother visited her son only every 10 days to two weeks.
In October of 1986, mother and her boyfriend asked the grandparents if they could pick up R.T.L.P. and take him out to get pizza that evening. The grandparents agreed to this and R.T.L.P. left with his mother and her friend. When the child was not returned, the grandparents contacted the police. The State of Montana obtained temporary investigative authority, and it was determined that mother and her boyfriend had taken R.T.L.P. to California, where they were residing with the boyfriend’s parents. On November 7, 1986, pursuant to an order granting the State of Montana temporary custody of R.T.L.P., the child was returned to Montana.
A guardian ad litem was appointed for R.T.L.P., and on December 4, 1986, a hearing was held in Montana to determine the custody of R.T.L.P. At the close of the hearing, the court ordered that R.T.L.P. be placed in the temporary custody of Social Rehabilitation Services (SRS) for six months. R.T.L.P. resided with foster parents in their home. Temporary custody was extended twice and in April of 1988 the grandparents made a motion to obtain custody of R.T.L.P. As a result of the hearing on this motion, held May 31 and June 1, 1988, the court granted long-term custody of R.T.L.P. until age 18 to the natural grandmother and her husband. Mother appeals. We affirm.
I
Did the District Court err in determining R.T.L.P. to be a youth in need of care?
In reviewing a custody order by the District Court we have previously stated:
“[T]his Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made. Due to this presumption of correctness, the district court’s findings will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion. (Citation omitted.)”
Matter of C.G. (Mont. 1988), [230 Mont. 117,] 747 P.2d 1369, 1371, 45 St.Rep. 63, 66.
Before the State may become involved in the custody of a youth, the youth must be adjudicated a “youth in need of care”, which, pursuant to § 41-3-102(11), means a youth who is “dependent, abused or neglected.” An abused or neglected child is further defined in § 41-3-102(2) as “a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.” In the present case the District Court determined that R.T.L.P. was a youth in need of care, in that he had been “physically abused, emotionally abused and emotionally neglected.” Our review of the record reveals ample evidence to support this finding.
The mother voluntarily left R.T.L.P. in the care of her mother and stepfather for two years. During this time, the grandmother assumed responsibility for the child’s physical and emotional needs. The evidence showed that mother often left home for days and weeks, without maintaining contact with him. R.T.L.P. called the grandmother “Mamma,” and he called his mother by her given name. In fact, grandmother testified that at times the mother di rected her son not to call her “Mamma,” telling him that the grandmother was his “Mamma”.
The mother and her boyfriend testified that they took R.T.L.P. to California because they wanted to get married and “be a family.” However, the testimony elicited from them on cross-examination showed that they never considered the impact of that decision on R.T.L.P. Reports from social workers showed that after this event the youth had nightmares and was fearful of being taken from his grandparents again.
When R.T.L.P. was returned to Montana, the mother and her boyfriend also returned and were married. Neither became employed. Mother then began a Service Treatment Program through SRS designed to help her with parenting abilities. Although she was somewhat cooperative in this plan, she missed many appointments. During this time she and her new husband had visits with R.T.L.P. two times per week. After several of these visits. R.T.L.P. was returned to the grandparents with indications of physical abuse, including a swollen mouth, swollen lip, black eye, chipped tooth, and back and abdominal pain.
The court heard testimony from a licensed clinical psychologist. The psychologist determined that mother was capable of parenting. However, he also noted that he only saw her twelve times during a period of two and one half months, and based his evaluation solely on mother’s statements to him. He acknowledged that he might change his evaluation if her statements were incorrect. He diagnosed two disorders in the mother: post-traumatic stress disorder and dependent personality disorder.
The social worker saw mother and R.T.L.P. for a year and a half, from October 1986 to April 1988. His testimony emphasized that the child has shown a lack of ability to bond with his mother, but that there is a strong bond with the grandmother. He stated that irreparable damage had been done in regard to R.T.L.P.’s ability to bond with his mother. He testified that the youth was emotionally healthy at the time of the hearing, but that this was a result of being in the grandparents’ care. He expressed serious concern about R.T.L.P.’s physical and emotional welfare should he be placed in the custody of mother and her new husband. His recommendation was that R.T.L.P. remain in the grandparents’ care.
The District Court found that mother was unstable and totally lacked credibility. The record supports this finding. Mother gave two different stories as to the origin of the burn on the infant daughter who died. In 1984 she first reported that at a women’s shelter in Wisconsin another mother had put Crisco on the baby and left her laying in the sun. At the custody hearing mother testified that her former husband and his friends had broken into the women’s shelter, tied her to a chair, and gang raped her. She stated they had put Crisco on the infant and put her under a heat lamp, resulting in the infant’s burn.
Mother’s sister testified that for many years mother had accused various people, including family members, of sexual abuse. She stated that none of these allegations had ever been proven to be true. She also testified to personal knowledge of mother’s past drug abuse, including the use of cocaine and heroine during her pregnancies. She testified that she had seen mother chase R.T.L.P. with a vacuum hose, even though the child was terrified of loud noises.
Mother contends that the District Court merely considered the child’s best interests in awarding custody, and did not first establish that R.T.L.P. was a youth in need of care. Mother is correct in urging that an initial finding of abuse, neglect or dependency is the “jurisdictional prerequisite for any court ordered transfer of custody,” and only after this showing has been made is the best interests test relevant. Matter of M.G.M. (1982), 201 Mont. 400, 407, 654 P.2d 994, 998. However, our review of the record reveals ample evidence to support the District Court’s finding that R.T.L.P. was physically abused, emotionally abused, neglected, and therefore a youth in need of care.
For four years mother’s actions were marked by indifference to and neglect of her parental responsibilities. She did not assume the physical care of her son, and was insensitive to her son’s emotional needs. Additionally, the District Court gave serious consideration to the circumstances surrounding the death of R.T.L.P.’s infant sister, which strongly suggested mother’s neglect of that child also. These facts are certainly relevant to mother’s ability to parent.
The record demonstrates that mother has not been an adequate parent and that there is substantial potential for harm to R.T.L.P. should he be placed in mother’s care. While mother states that she would provide a good home at this point, her past actions and her present instability and lack of credibility are not persuasive. R.T.L.P. does not need to wait longer for mother to improve her parenting skills. Matter of C.A.R. (1984), 214 Mont. 174, 188, 693 P.2d 1214, 1222. We conclude that R.T.L.P. is a youth in need of care whose best interests are served by remaining in the custody of the grandparents. We therefore affirm the District Court.
II
Is the granting of long-term custody until age 18 the equivalent of a termination of parental rights, requiring that the statutory factors of parental termination be met?
The court’s order awarded custody of R.T.L.P. to his grandparents until he reaches age 18. The grandparents have the right to make decisions regarding the youth’s medical, educational, and legal needs. Further, the order states that the mother’s visitation rights shall be restricted and supervised. Mother is allowed visitation only twice a month for one hour at the Montana Department of Family Services. Mother contends that this equates with parental termination and that therefore the factors of § 41-3-609, MCA, must be fulfilled.
The court granted long-term custody pursuant to § 41-3-406, MCA, which states in pertinent part:
“If a youth is found to be abused, neglected or dependent under 41-3-404, the court after the dispositional hearing may enter its judgment making any of the following dispositions to protect the welfare of the youth:
“(3) transfer legal custody to any of the following:
“(c) a relative or other individual who, after study by a social service agency designated by the court, is found by the court to be qualified to receive and care for the youth;”
Under this statute it is only necessary that the child be a “youth in need of care,” defined in 41-3-102(11), MCA, as a youth who is “abused, neglected, or dependent.” Termination of the parent child relationship requires much more stringent criteria. The relevant statute, § 41-3-609, MCA, lists three requirements which must be established before parental rights may be terminated. Those requirements are 1) that the child is an adjudicated youth in need of care, 2) a court approved treatment plan has not been complied with or been successful, and 3) the conduct or condition causing the problem cannot be rectified within a reasonable time. Subsection (2) of that statute enumerates several factors for guidance in the determination of the third requirement.
The effect of a decree terminating the parent-child relationship is explained in § 41-3-611, MCA, which states that the decree operates to divest the child and the parents of “all legal rights, powers, immunities, duties, and obligations with respect to each other . . .” Only the child’s right to inherit is excepted from this.
The effect of termination of parental rights was explained in Matter of V.B. (Mont. 1987), [229 Mont. 133,] 744 P.2d 1248, 1250, 44 St.Rep. 1838, 1841. In that case we stated that “when parental rights are terminated, the natural parent no longer has any rights over the child. This includes visitation rights. “
This Court has previously acknowledged the difference in an order granting long-term custody until age 18 and an order terminating parental rights. We recognized the distinct nature of each disposition and the differences in statutory requirements in the case of Matter of A.H. (Mont. 1989), [236 Mont. 323,] 769 P.2d 1245, 46 St.Rep. 395. That case affirmed the termination of parental rights as to one child and the granting of long-term custody until age 18 as to the other two children. In Matter of A.H. we concluded that the district court had terminated parental rights to one child because the statutory factors of § 41-3-609, MCA, were met. We also concluded that the other two children were appropriately put in long-term custody until age 18 because they were determined to be “youths in need of care,” pursuant to § 41-3-404, MCA. Thus this Court implicitly recognized that the granting of long-term custody until age 18 is not the equivalent of a termination of parental rights, and that different statutory criteria apply to each disposition.
An award of long-term custody does not totally terminate the rights of the natural parent. In the present case, although mother’s visitation rights are restricted, she may still visit her child, and may possibly petition for less restricted visitation in the future. Additionally, mother may at some point in the future petition the District Court to regain custody of R.T.L.P. While the record demonstrates a grievous incapacity to parent, it is conceivable that mother could develop as a parent to the point where it would be appropriate to restore custody to her. Possibly there are other factors which could alter the effect of the long-term custody decree. Mother’s rights as the parent of R.L.T.P. have not been terminated by the award of long term custody until age 18. The award of custody until the child’s age of majority gives stability to the child’s future and prevents repeated litigation over custody. The proper inquiry is whether parental rights have actually been terminated. Because parental rights have not been terminated we hold that a grant of long- term custody is not the equivalent of a termination of parental rights.
Ill
Is mother entitled to effective assistance of counsel at a hearing which granted long-term custody of her son to his grandparents?
Mother alleges that her legal representation at the custody hearing was less than effective, citing certain evidence which her attorney did not present. Mother contends that she was entitled to effective assistance of counsel at the hearing which determined the custody of her child, R.T.L.P. This contention fails because it is premised on an incorrect assumption.
Mother urges that the parent-child relationship is a fundamental liberty interest entitled to constitutional protection. The cases cited in support of this argument however, involved a termination of parental rights. See, e.g., Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848, citing Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599. In Matter of R.B. we stated that a termination of parental rights must be protected by “fundamentally fair procedures,” and that the court must address each statutory requirement of termination. Matter of R.B., 703 P.2d at 848. In the present case, the procedure followed by the court was fundamentally fair as far as this party is concerned; We find no authority for mother’s contention that a parent is entitled to effective assistance of counsel in a termination proceeding. Furthermore, as we concluded in Issue I, the present case is not a termination because it does not involve the severing of a parent-child relationship. Therefore, we need not address mother’s contentions regarding effective assistance of counsel.
Affirmed.
MR. JUSTICES HARRISON, HUNT, McDONOUGH and GULBRANDSON concur.
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MR. JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the District Court of the Fourth Judicial District, in and for the County of Missoula, the Honorable John S. Henson presiding. Judge Henson issued findings of fact and conclusions of law and order in this marriage dissolution action. Appellant Jeremy Gersovitz appeals from the custody order concerning the parties’ minor child. We affirm.
Three issues are presented by the appellant, Jeremy Gersovitz, which we will condense into two issues as stated by the respondent, Catherine Ann Siegner.
1. Did the District Court abuse its discretion in ordering a residential plan which placed the child with respondent wife, after the child reaches a school age?
2. Did the District Court abuse its discretion in its determination that neither party should have the exclusive right to determine the child’s religious education?
The parties met in Washington, D.C. while attending school to earn graduate degrees. Respondent (hereinafter referred to as Catherine) received a bachelor’s and master’s degree in journalism. The appellant (hereinafter referred to as Jeremy) holds a bachelor’s degree in political science and a master’s degree in journalism. After receiving their degrees, the parties found work in Missoula, Montana in January of 1986.
The parties were married on February 14, 1986. Their son, Alexander Samuel Gersovitz (hereinafter referred to as Alex) was born on August 1, 1986. Jeremy and Catherine separated in December, 1987. At the time of their separation, Catherine moved out of the family home to a residence within several blocks of Jeremy and the parties worked out an amiable joint custody arrangement. Shortly after Catherine moved, Jeremy filed a petition for the dissolution of the marriage.
Between the time of the filing for dissolution and the trial, the parties shared joint custody of Alex. The central issue here is whether Alex should reside with Catherine or Jeremy after he reaches school age.
Each party made several recommendations to the court prior to and during the trial regarding the residence and care of Alex. After hearing the evidence, the court structured a plan which would enable each parent to have physical custody of Alex during certain periods of the year. Alex was approximately three years of age when this plan was established. Jeremy objects to that portion of the plan which places Alex in the custody of Catherine after he begins school. Section 40-4-212, MCA, sets forth the factors to be considered when determining the best interest of the child. The court noted in its findings that both parents were loving, concerned and capable parents. Both sought joint custody and each requested to be the primary custodian commencing with Alex’s school years. However, the court concluded that the child must reside primarily with one parent during the time he attends school so his education will not be interrupted by multiple custodial transfers. Further, the court concluded that it was in Alex’s best interest that he spend time with both parents during the summer.
The court, in finding No. 31 noted:
“It is in the best interest of the minor child to reside with Respondent [Catherine] during the school year because of her parenting abilities, her lack of animosity towards Petitioner [Jeremy] and her greater range of interests. It is less likely that Respondent will interfere with Petitioner’s relationship with Alex, including providing access to the child, than Petitioner is likely to interfere with Respondent’s relationship with the child, including providing access to him. Respondent appears to be more capable of allowing Alex to develop his own identity. Further, her ability to recognize and address the needs of the child to have a strong relationship with the other parent is not likely to be hampered by anger towards that parent. The same cannot be said of Petitioner.
Included in its order, the court addressed child support, medical insurance, summer vacations, and a residential plan for Alex before he starts school. It also provided for the custody of Alex and incurred travel costs should one parent move more than 200 miles from the other, or in excess of 200 miles from Missoula. Jeremy’s second issue, which has been supported by an amicus brief by the Montana Association of Jewish Communities, relates to the District Court’s order No. 9 which provides as follows:
“Neither parent shall have the exclusive right to determine the child’s religious education and affiliation. This determination is consistent with the philosophy underlying joint custody and also with the reality of the child’s heritage.”
Jeremy argues that from the time of his birth, Alex has been raised Jewish, with the support and cooperation of both parents. He argues that being Jewish is not merely a religion, it is a way of life. Alex’s full name, Alexander Samuel Gersovitz, is a Jewish name and he will be recognized by society as a Jew. Jeremy further states that Alex has been circumcised, and has regularly and routinely been made a part of the Missoula Jewish community celebration of their faith.
Jeremy argues that the District Court abused its discretion in concluding, for all practical purposes, that once Alex reaches school age, he should be raised in no religion, rather than the religion in which he has been raised since his birth. Jeremy claims that because he has been separated from Alex, he will not be raised with sufficient knowledge of Judaism. This, he argues, will make it difficult, if not impossible, for Alex to live in the Jewish tradition, because a Jewish boy achieves religious responsibility at the age of thirteen when he celebrates his barmitzvah, becomes an adult and chooses his religion, Judaism. It is further argued that it is necessary for a school age child to receive the religious training necessary to prepare him for his barmitzvah. It is claimed that the District Court’s order which places Alex in his non-Jewish mother’s care during the school year prevents Jeremy from raising Aléx in a strong Jewish tradition.
After carefully studying the transcript, briefs and District Court file, we cannot say that the court abused its discretion in this custody matter. The District Court’s order relating to Alex’s religion was correct because it reflects Alex’s best interests and is constitutionally sound.
This case presents an issue of first impression in Montana. The First Amendment guarantees religious liberty, and the right of parents to direct the religious upbringing of their children. Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. There is a common feature in the cases cited by the appellant and amicus. That is, courts will not debate the merits of different religions or show preference to any religious faith. However, courts will examine religious practices which interfere with the child’s general welfare. Religion as a Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971. A question of religious education must be strictly limited to the context of the best interests of the minor child.
The appellant cites In re the Marriage of Simms, a 1987 Colorado district court case, as support for an option which would grant custody of a child to one parent “for the purposes of determining religious training.” However, Simms, a district court case rather than a Colorado Supreme Court case, is not persuasive. Its facts differ from those of this case, which in our opinion, makes Simms inapplicable. In Simms, the mother converted to Judaism before the children were born. The children were raised in the Jewish faith prior to the divorce of the parents. After the parties separated, the mother reverted to her original faith of Catholicism and began taking the children to church. The Colorado district court thought it would be best if the parents could agree jointly on the issue of religious training for the children, but further found that the parents were not able to do so and after hearing considerable expert testimony, found that it was most appropriate for one parent or the other to determine the religious training of the children. That is not the situation here.
The facts of this case did not require the District Court to appoint one parent as the religious custodian of Alex. However, under § 40-4-218, MCA, the custodial parent may determine the child’s religious training. We find that under the facts of this case, an award of custody for the purpose of religious education should not dominate other elements which comprise the best interests of this particular child.
This Court has previously held in In re Marriage of Cole (1986), 224 Mont. 207, 729 P.2d 1276, 43 St.Rep. 2136; and In re the Custody and Support of B.T.S. (1986), 219 Mont. 391, 712 P.2d 1298, that the findings and conclusions of a district court regarding the best interests of a child are presumptively correct and will not be overturned unless there is a clear preponderance of evidence against them. Here, the District Court’s determination as to the best interests of the minor child was supported by substantial credible evidence.
The judgment of the District Court is affirmed.
MR. JUSTICES WEBER, HUNT, McDONOUGH and GULBRANDSON concur.
|
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] |
MR. JUSTICE HUNT
delivered the Opinion of the Court.
Sylvia Johns, petitioner, appeals from the property distribution mandated in the dissolution of marriage decree entered by the District Court of the Second Judicial District, Silver Bow County. We affirm.
The issues raised on appeal are:
1. Whether sufficient evidence supported the District Court’s valuation of the parties’ real property.
2. Whether the District Court adequately determined the parties’ net worth.
Sylvia and William Johns were married on September 11,1965. On June 12, 1987, wife filed a petition for dissolution of the marriage and for the equitable distribution of the marital estate. A hearing was held on April 15, 1988, which dissolved the marriage and reserved all other issues. On July 25, 1988, the District Court issued its findings of fact and conclusions of law and decree dividing the marital property.
When dividing the martial property, the District Court considered several factors as required under § 40-4-202, MCA. The factors were enumerated in the court’s findings of fact and conclusions of law as follows: the duration of the marriage, real and personal property acquired during the marriage, the age of the parties, the employment and pension plans of each, the IRA accounts of each, the wife’s inheritance, a debt on the family home, a debt for their adult daughter’s wedding, and miscellaneous property. The District Court noted that in addition to wife having a higher monthly net income than husband, wife’s pension plan had a present value in excess of $24,000 while husband’s pension plan had only a future potential value of $247 per month upon retirement. Although it is unclear from the record how the valuation of the pensions was made, the parties did not raise the specific issue.
Upon consideration of the parties’ assets, the District Court decreed that each party retain as their separate property their IRA accounts, pension plans, deferred savings and motor vehicles. The family home valued at $40,000 was awarded to husband conditioned on payment of a $2,000 debt remaining on the home as well as a $2,300 debt incurred on the parties’ adult daughter’s wedding. The court also considered wife’s inheritance and decreed that it should be wife’s sole property. In addition, wife was awarded miscellaneous property. The District Court stated, in comment to its findings, that the distribution was practical, equitable and in the best interests of both parties.
The first issue raised on appeal is whether sufficient evidence supported the District Court’s valuation of the parties’ real property. Specifically, wife argues that the family home awarded to husband in the distribution was undervalued by the District Court at $40,000.
Both parties employed qualified appraisers to give expert opinions as to the present value of the home. The deposition testimony of both appraisers was introduced as evidence in court. Wife’s appraiser valued the home at $56,000 while husband’s appraiser valued it at $40,000. The District Court accepted the $40,000 appraisal and explained in its findings that it accepted husband’s appraisal because the value was more realistic for a one-bedroom home. Wife argues that there was no justification for the valuation and thus, the District Court abused its discretion.
The District Court’s findings of fact must be viewed as a whole. In re the Marriage of Hockaday (Mont. 1989), [237 Mont. 413,] 773 P.2d 1217, 46 St.Rep. 910. The standard of review in a distribution case is that where the District Court based its distribution of marital assets on substantial credible evidence, it will not be overturned absent a clear abuse of discretion. In re the Marriage of Stewart. (Mont. 1988), [232 Mont. 40,] 757 P.2d 765, 767, 45 St.Rep. 850, 852; In re the Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 954, 44 St.Rep. 1167, 1170. We will not reverse the District Court on a property distribution determination without such a showing. See In re the Marriage of LeProwse (1982), 198 Mont. 357, 362, 646 P.2d 526, 529. Moreover, the District Court has far reaching discretionary powers when valuing property for distribution. The valuation need only be reasonable in the light of the evidence submitted. In re Marriage of the Milesnick (Mont. 1988), [235 Mont. 88,] 765 P.2d 751, 755, 45 St.Rep. 2182, 2187; In re the Marriage of Luisi (Mont. 1988), [232 Mont. 243,] 756 P.2d 456, 459, 45 St.Rep. 1023, 1026.
In the present case, the District Court predicated its $40,000 valuation on the expert testimony of an appraiser. We held in Milesnick, 765 P.2d at 755, that expert testimony is a reasonable premise for which the District Court may base a valuation. Wife, however, argues that she too presented expert testimony that the home had a value of $56,000 and that there was no rationale given by the court for its $40,000 valuation. However, in Milesnick, 765 P.2d at 755, we stated:
“When confronted with conflicting evidence, the court must use its fact-finding powers to determine which evidence is more credible . . . . Unless there is a clear preponderance of the evidence against the District Court’s valuation, its findings, where based on substantial though conflicting evidence, will not be disturbed on appeal.”
The District Court’s $40,000 valuation of the parties’ home was reasonable in light of the testimony presented and the rationale set forth in the District Court’s findings. There was no abuse of discretion.
The second issue raised on appeal is whether the District Court adequately determined the parties net worth. Specifically, wife alleges that the determination was improper since the District Court considered wife’s $30,000 inheritance as her property in the distribution.
The net worth of a marital estate must be determined prior to division of the estate. In re the Marriage of Shultz (1980), 188 Mont. 363, 365, 613 P.2d 1022, 1024. In determining the net worth, the District Court must make complete findings and include all assets and liabilities. In re the Marriage of Dirnberger (Mont. 1989), [237 Mont. 398,] 773 P.2d 330, 46 St.Rep. 898.
In this case, the District Court set forth wife’s $30,000 inheritance in its findings of fact as a marital asset. In Dirnberger, we held that the District Court was required to take inheritance into consideration when dividing marital assets. In fact, the Court may have erred had it not made such a consideration. In re the Marriage of Alt (1985), 218 Mont. 327, 334, 708 P.2d 258, 262. We hold that the District Court properly considered wife’s inheritance when it determined the parties net worth.
Affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDONOUGH, SHEEHY and WEBER concur.
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MR. JUSTICE SHEEHY
delivered the Opinion of the Court.
The United States Supreme Court in Rice, Director, Department of Alcoholic Beverage Control of California v. Rehner (hereafter Rice v. Rehner) (1983), 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961, decided that Congress, by enacting 18 U.S.C. § 1161, gave states the power to regulate within their borders the possession and sale of liquor by Indian persons in Indian country through the licensing provisions of the states. Our case here answers the further problem: whether such liquor regulation by the states includes the power to enforce state criminal statutes against Indian persons for violations of state law relating to the possession or the sale of liquor within Indian country. We hold here that under Rice v. Rehner, and the applicable federal statute, Montana can, and does, have the power to punish by criminal proceedings in its state courts violations of state liquor laws occurring within its borders by Indian persons in Indian country. Because of our holding, we deny the petition for a writ of supervisory control from this Court, and dismiss these proceedings.
In Rice v. Rehner, the pivotal case here, Rehner was a federally licensed Indian trader who operated a general store on the Pala Reservation in San Diego, California. The Pala Tribe had adopted a tribal ordinance permitting the sale of liquor on the reservation, providing that the sales conformed to state law. Rehner sought from the state an exemption from its law requiring a state license for retail sale of liquor for off-premises consumption. When she was refused an exemption, Rehner filed suit seeking a declaratory judgment that she was not required to obtain a license from the state and an order directing that liquor wholesalers could sell to her without her state license. The federal district court granted the state’s motion to dismiss, ruling that Rehner was required to have a state license under 18 U.S.C. § 1161. The Court of Appeals reversed the district court, holding that § 1161 did not confer jurisdiction on the states to require liquor licenses. (9th Cir. 1982), 678 F.2d 1340. On writ of certiorari, the United States Supreme Court, as above noted, reversed the Court of Appeals, holding that California may properly require Rehner to obtain a state license in order to sell liquor for off-premises consumption.
As noted by the dissent in Rice v. Rehner, the United States Supreme Court rested its conclusion on three propositions. 463 U.S. at 738,103 S.Ct. at 3305 (Blackmun, J., dissenting). First, the Supreme Court asserted that “tradition simply has not recognized sovereign immunity or inherent authority in favor of liquor regulation by Indi ans.” Second, the Supreme Court found a “historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country.” Third, the Supreme Court concluded that Congress “authorized . . . state regulation over Indian liquor transactions” by enacting 18 U.S.C. § 1161.
The principal argument of the petitioners (hereafter Brown or Browns) is that Rice v. Rehner held only that the states could require Indians transacting liquor business on the reservation to purchase a state liquor license. They argue that Rice v. Rehner did not, however, and could not, confer on the state criminal jurisdiction over liquor offenses committed by Indians on the reservation, contending that criminal jurisdiction over Indians can only be conferred upon the states by Congress with the express consent of the tribe. They argue that Montana has not been given such a grant of criminal jurisdiction.
The facts in this case parallel somewhat the facts in Rice v. Rehner. This action arises from an information filed in Blaine County District Court, charging Harley LeRoy Brown and Caroline Ann Brown with the felony offense of sale and possession of beer and wine without a license in violation of Montana’s statute, § 16-6-301(1), MCA. Caroline Ann Brown is an enrolled member of the Fort Belknap Tribal Community of the Assiniboine and Gros Ventre Tribes. Harley LeRoy Brown is an Indian person residing on the Fort Belknap Reservation and is the husband of Caroline Ann Brown and the head of an Indian family. The Browns operate a small grocery store at Hays, Montana, selling groceries, as well as beer and wine. At the time of the alleged offense, they claim they had a valid tribal and federal license authorizing them to sell beer and wine. The District Court, however, noted that the Browns had not obtained from the tribe such a liquor license.
On January 6, 1988, the Blaine County Attorney caused a state search warrant to be issued from the Blaine County Justice Court. Law enforcement officials attempted to execute the Blaine County search warrant on the reservation; but were told by the chief tribal judge of the Fort Belknap Tribal Court that the search warrant was invalid because the state had no jurisdiction on the reservation. Apparently, the state officers then caused an action to be filed in Tribal Court charging the Browns with criminal violations of tribal ordinances relating to the sale and display of liquor on the reservation. Under the charges filed in the Tribal Court, a search warrant was issued from that Court under which evidence was seized from the grocery store at Hays, Montana; and transported to Blaine County District Court. The evidence was not taken to the Tribal Court and it is contended that the tribal search warrant was not served upon Caroline Ann Brown, from whose possession the evidence was seized. Following the seizure and transport of the evidence, the Tribal Court action was dismissed. State court charges were filed against the Browns on February 4, 1988, after the Tribal Court action was dismissed.
On April 6, 1988, Browns moved to dismiss the charges against them on grounds that the Montana State District Court did not have criminal jurisdiction over Indians who allegedly committed crimes within the exterior boundaries of the reservation. The defendants further moved to quash the search warrant and suppress the evidence seized under the Tribal Court search warrant, which evidence had been transferred to the state court.
On August 6, 1988, the District Court denied both the motion to dismiss and the motion to quash. In denying the motion to dismiss, the District Court relied on Rice v. Rehner particularly. Thereupon, the petitioners filed their application for a writ of supervisory control or other appropriate writ from this Court to review the issue of jurisdiction, and the issue of whether the evidence should be suppressed.
Under Title 18 U.S.C. §§ 1154, 1156, 3113, and 3488, introduction of liquor, possession thereof, dispensing thereof or transporting the same is forbidden in Indian country. As noted in Rice v. Rehner, 463 U.S. 722, 103 S.Ct. at 3297, Congress imposed complete prohibition of liquor on Indian lands in Indian country in 1832 and “these prohibitions are still in effect subject to suspension, conditioned on compliance with state law and tribal ordinance.” The United States Supreme Court derived that statement from the provisions of Title 18 U.S.C. § 1161, which follow:
“The provisions of 1154, 1156, 3113, 3488 and 3618 of this title shall not apply within any area that is not Indian country nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the state in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country . . .” (Emphasis added.)
Plainly, under the language of § 1161, two things are necessary to remove the federal prohibition against liquor in Indian country: (1) conformity with the laws of the state in which the transaction oc curs; and, (2) an ordinance duly adopted by the tribe having jurisdiction over the area of Indian country. In this case, the Fort Belknap Indian Community adopted its Tribal Ordinance No. 3-74 in 1974, which regulates liquor transactions on the reservation under the jurisdiction of the Fort Belknap Indian community “provided that such introduction, sale or possession is in conformity with the laws of the state of Montana.”
The principal argument of Brown in this case is that Rice v. Rehner was a civil case, which only held that Indians transacting a liquor business on the reservation must purchase a state liquor license; and that it did not give state courts criminal jurisdiction over Indians who commit liquor offenses on the reservation. Brown contends that criminal jurisdiction over Indians can only be conferred upon the states by Congress by the express consent of the tribe. 18 U.S.C. § 1162. They contend that Montana has not been given such a grant of criminal jurisdiction.
Such an interpretation would be a narrow construction of 18 U.S.C. § 1161 and would overlook the specific reference in Rice v. Rehner that Congress has also historically permitted concurrent state regulation through the “imposition of criminal penalties on those who supply Indians with liquor, or who introduce liquor into Indian country.” 463 U.S. at 726, 103 S.Ct. at-3299. The interpretation ignores also the obvious determination in Rice v. Rehner that the state was entitled to effective regulation of liquor, the Supreme Court saying:
“The historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country is justified by the relevant state interests involved. See [State v.] Confederated Tribes, supra, [447 U.S. 134] at 156, 65 L.Ed.2d 10, 100 S.Ct. 2069 [2082 (1980)]. Rehner’s distribution of liquor has a significant impact beyond the limits of the Pala Reservation. The state has an unquestionable interest in liquor traffic that occurs within its borders, and this interest is independent of the authority conferred on the states by the Twenty-first Amendment. Crowley v. Christiansen, 137 U.S. 86, 91, [11 S.Ct. 13, 15, 34 L.Ed. 620] (1890). Liquor sold by Rehner to other Pala tribal members or to nonmembers can easily find its way out of the reservation and into the hands of those whom, for whatever reason, the state does not wish to possess alcoholic beverages, or to possess them through a distribution network over which the state has no control. This particular ‘spillover’ effect is qualitatively different from any ‘spillover’ effects of income taxes or taxes on cigarettes. ‘A state’s regulatory interest will be particularly substantial if the state can point to off-reservation effects that necessitate state intervention.’ New Mexico v. Mescalero Apache Tribe, 462 U.S. 234, 76 L.Ed.2d 611, 103 S.Ct. 2378 (1983).”
Rice v. Rehner, 463 U.S. at 724, 103 S.Ct. at 3298.
In this case, the district judge particularly noted the “spillover” effect, remarking that the state’s regulatory interest was substantial because the Brown grocery was located on Montana State Highway No. 66, a state-maintained, two-lane paved highway, carrying non-Indian traffic from Billings, Montana, to the south; to Harlem, Montana, to the north. Moreover, Rice v. Rehner recognized that “it cannot be doubted that the state’s police power over liquor transactions within its borders is broad enough to protect the same Congressional decision in favor of the state” [by allowing removal of the prohibition against liquor on reservations from transactions that conform both with the laws of the state and with a tribal ordinance]. 463 U.S. at 731, 103 S.Ct. 3302.
The second principal argument made by Brown is that the Fort Belknap community has preempted the field by asserting exclusive jurisdiction over liquor offenses on the reservation. In support, they point to the criminal prosecution ordinances adopted by the tribe which provide procedures in the tribal courts for crimes committed on the reservation. They also point to Resolution No. 71-88, adopted by the tribal community on April 6, 1988, after the institution of the criminal action in this case. Resolution No. 71-88 declared in effect that its previously adopted ordinance allowing the use and sale of alcoholic beverages on the reservation did not cede or authorize jurisdiction within the reservation to the state of Montana.
For these contentions, the Browns rely on State of Wisconsin v. Big John (1987), 140 Wis.2d 322, 409 N.W.2d 455; and upon the federal decisions in U.S. v. Cowboy (10th Cir. 1982), 694 F.2d 1228; U.S. v. Johnson (9th Cir. 1980), 637 F.2d 1224; and U.S. v. Allen (8th Cir. 1978), 574 F.2d 435.
State v. Big John, supra, has no application in this cause because it involved the state’s attempt to regulate the use of boats in Wisconsin, an activity well within the traditional area of Indian tribal sovereignty. Rice v. Rehner specifically pointed out that the regulation of liquor on reservations was not within the inherent or historical tribal sovereignty. The federal cases likewise do not support Brown in this case. U.S. v. Allen, supra, involved an assault by an Indian against other Indians on a reservation and has no connection with the interpretation of Indian liquor laws except that the parties were drinking when the assault occurred. U.S. v. Johnson, supra, held that offenses by an Indian against an Indian are subject to the jurisdiction of the Tribal Courts if not covered by the Major Crimes Act, in a case construing the federal Juvenile Delinquency Act. U.S. v. Cowboy, supra, held that the tribal courts had concurrent jurisdiction with the federal courts over Indians who offend 18 U.S.C. § 1154 (dispensing liquor). No state statutes were involved and the court there did not pass upon the application of state criminal laws under 18 U.S.C. § 1161.
The state district court in this case rejected the preemption argument pointing to the language in Rice v. Rehner, which said:
“. . . Our examination of § 1161 leads us to conclude that Congress authorized, rather than preempted state regulation over Indian liquor transactions.”
463 U.S. at 726, 103 S.Ct. at 3299.
Again, the District Court noted from Rice v. Rehner:
“It is clear then that Congress viewed § 1161 as abolishing federal prohibition, and as legalizing Indian liquor transactions as long as those transactions conformed both with tribal ordinances and state law. It is also clear that Congress contemplated that its absolute, but not exclusive power, to regulate Indian liquor transactions would be delegated to the tribes themselves and to the states, which historically shared concurrent jurisdiction with the federal government in this same area . . .”
463 U.S. at 728, 103 S.Ct. at 3300.
We agree with the District Court that preemption has not occurred here. In sum, we hold that when Congress decided to allow the end of prohibition of liquor on reservations in certain cases, it did so under the conditions that state law and tribal ordinances would regulate liquor transactions in Indian country. If we were to interpret 18 U.S.C. § 1161 as permitting only state licensing of liquor transactions on Indian reservations, but not the power to enforce the same, the state would be powerless to effectuate the intent of Congress that such liquor transactions on reservations be “in conformity with state law.”
Rice v. Rehner, supra, was decided by a divided court, but its majority holding clearly implies that state criminal laws relating to liquor transgressions apply to offenses committed by Indians in Indian country. We so hold.
With respect to the second portion of Browns’ petition for writ in this cause asking us to direct the suppression of the evidence seized under the tribal search warrant, we find this issue to be premature because Browns have a clear remedy by appeal. The order denying suppression of the evidence is interlocutory and in such case a writ of supervisory control from this Court is not obtainable.
The application for writ of supervisory control is denied and these proceedings dismissed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON, McDONOUGH, HUNT and WEBER concur.
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MR. JUSTICE SHEEHY
delivered the Opinion of the Court.
Denis Patrick Thane appeals from a judgment in the District Court, Fourth Judicial District, Missoula County, requiring him to pay to Judith Elaine Thane, his former wife, the sum of $150.00 per month for each of two children, the progeny of their former marriage. We affirm.
Denis Patrick Thane (Patrick) contends on appeal that because he and Judith Elaine (Judith) obtained a joint marital dissolution of their marriage in 1981, under a decree which contained no provisions for child support, that the District Court had no jurisdiction after more than two years to modify the decree with respect to child support. Patrick also contends that the District Court abused its discretion by concluding that the circumstances between the parties had changed so substantially that the terms of the 1981 decree had become unconscionable.
Patrick and Judith were married on August 8, 1970. Their marriage was dissolved following a joint petition for dissolution in the same District Court by a decree issued on June 9, 1981. The decree of dissolution granted joint custody, care and control of the minor parties, Erin Jennifer Thane and Jason Christopher Thane with equal rights and privileges in the parents respecting all decisions to be made. The dissolution decree further required Patrick to carry medical and dental insurance on the minor children of the parties.
On June 13, 1986, Judith filed a petition for modification of child support in the District Court. On August 29,1986, Judith also filed a motion for temporary support. On January 9, 1987, the District Court granted temporary child support to the respondent, which grant was upheld on a subsequent motion for reconsideration. On June 17, 1988, a hearing was held on the original petition for modification dated June 13, 1986, after which the District Court issued findings of fact, conclusions of law and order dated July 25, 1988, which granted Judith child support in the monthly amount of $150.00 per child to be paid by Patrick to Judith. This appeal followed.
On the issue of lack of jurisdiction in the District Court, Patrick contends that at the time of the original dissolution, no child support was sought by Judith and none was included in the original decree of dissolution. He contends that since no child support was awarded in the original decree, the decree cannot be modified to provide child support under the provisions of § 40-4-208(2)(a), MCA. He relies on Marriage of Cooper (Mont. 1985) 216 Mont. 34, 699 P.2d 1044, and Marriage of Hagemo (Mont. 1988), [230 Mont. 255,] 749 P.2d 1079. It is provided in § 40-4-208(2)(a), MCA, that:
“Whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification under subsection (1) may only be made within two years of the date of the decree.”
The District Court determined in its conclusions of law that because the decree of dissolution contained a specific provision relating to Patrick’s obligation to provide support, i.e., medical and dental insurance, the District Court had jurisdiction to modify the decree.
The District Court had the provision of health insurance and more to rely on in asserting jurisdiction for the purpose of modification. In the original decree, the District Court had decided that it was in the best interests of the minor children that the parents have joint custody, care and control, with equal rights and privileges, and with all decisions affecting the welfare of the children to be made by the mutual consent of the parties. Under this provision of the decree, since the dissolution, the children have been shared equally between the parents as far as custody and support is concerned. The result has been that the children have spent as much time in the home of the father, receiving there shelter and support, as they have in the home of the mother. There is no argument that this arrangement was what was contemplated by the parties at the time of the original decree of dissolution. There can be no doubt that the equal sharing of the sheltering and support of the children from and after the decree of dissolution was in effect an award of one-half of the cost of supporting the children to the husband. If, in fact, the District Court had intended that the husband pay no child support, then the court would have been under a duty to state the reasons for not ordering child support from a parent from whom a duty of support existed, under § 40-4-204(2), MCA. The original decree of dissolution is bare of any statements by the court as reasons for not requiring child support from the father.
Thus, the two year statute after which decrees may not be modified in the circumstances described in § 40-4-208(2)(a), MCA, is not met here. Both in providing directly for health insurance for the children and in providing for their joint care and support, the District Court in effect required child support from the husband and so had jurisdiction to modify the child support provisions even after the lapse of two years.
The second prong of Patrick’s appeal is that the District Court had no basis upon which to find that the method of child support was unconscionable. Section 40-4-208(2)(b), MCA, provides that when a decree proposed for modification contains provisions relating to maintenance and support, modification may be had only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable, unless the parties consent otherwise.
The findings of the District Court with relation to the care of the children are that the children have been well cared for in both homes and have warm relationships with both parents. Both parents have provided for all of the needs of the children including food, shelter, health, social and recreational and academic needs.
The findings further show that after the dissolution, the wife became employed and that her income has increased from the time of the dissolution with relatively little earnings to $13,035.00. To obtain this income, she worked at Community Hospital 24 hours a week at $7.41 per hour and at State Farm Insurance Company for 31 hours a week at $5.25 per hour. Her mother contributes $150.00 monthly to Judith’s support.
The husband is certified as an elementary teacher in Missoula and earns more than $30,000.00 per year with a net take home pay of $1,817.00 per month. Since the dissolution, his annual income has increased from $23,838 in 1983 to $30,677 in 1987, the last year shown in the findings. His income increases each year. The husband does not work in the summer months when school is out.
Judith intended to terminate her employment with State Farm Insurance Company on or about September 1, 1988, and to engage in cleaning houses at $7.00 per hour and selling encyclopedias. She felt these jobs would be flexible in the hours of work so that she would have more time for contact with her children, especially her daughter. The wife has no retirement plans or benefits other than available through her employment at Community Hospital. Husband is able to carry medical and dental insurance on the minor children of the parties through his employment.
The District Court concluded that the child support provision as constituted under the 1981 decree of dissolution was unconscionable and should be modified because the parties are presently bearing the support of the children equally but the wife has a lesser income than the husband. His income has been increasing regularly each year while her income varies and increases cannot be depended upon. Accordingly, the District Court decided that the husband should pay $300.00 per month in child support to equalize the disproportionate burden currently being borne by the wife.
Essentially, Patrick argues against unconscionability on two grounds 1) that there is nothing in the evidence to show that there is a need by the children for his additional support, and 2) his monthly expenses as exhibited to the District Court show that he cannot afford the increased child support required by the District Court.
It is true that in Marriage of West (1984), 212 Mont. 374, 692 P.2d 1213, this Court remanded the cause for an evidentiary hearing because the District Court had failed to make findings on the needs of the children and this Court wanted the District Court to determine whether those needs could be met at the current level of support payments. That is not the situation here. Judith is bearing one-half of the cost of the support of the children although her annual income is less than one-half of that of her former husband.
The needs and resources of the parents with respect to child support are also factors to be looked at by the District Court. Marriage of Callahan (Mont. 1988), [233 Mont. 465,] 762 P.2d 205. Here the District Court determined that Patrick’s net take home pay was $1,817,00 per month and noted his claimed current expenses of $1,850.00 per month. The District Court said this included a house payment at $696.00 per month and a payment for savings of $100.00 per month.
The spirit of our law respecting child support is that the parties will be required to contribute to the support of the children in proportion to their ability to make such contributions. Each case is decided on a case-to-case basis. We established that requirement in Marriage of Carlson (1984) 214 Mont. 209, 693 P.2d 496, and continued it in adopting Guidelines for Determining Child Support, effective January, 1987, [227 Mont. 1,] [Published in 44 St.Rep. 828 (1987), and in the Desk Book published annually by the State Bar of Montana]. Because of the disparity in the parties’ incomes, the court found it unconscionable that the wife should bear one-half of the cost of supporting the children and fashioned a contribution from the husband accordingly.
The changes in the couple’s financial circumstances since the dissolution were so substantial and continuing as to make the earlier support arrangement unconscionable. Marriage of Jensen (1986) 223 Mont. 434, 727 P.2d 512. We uphold the District Court on this issue.
Under Rule 54 (a), M.R.Civ.P., findings by a district court are to be sustained by us, unless clearly erroneous. We do not find the District Court in error and therefore affirm.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, WEBER, GULBRANDSON and McDONOUGH concur.
|
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MR. JUSTICE McDONOUGH
delivered the Opinion of the Court.
Plaintiffs appeal from the dismissal of their action against the defendant in the District Court for the Eighteenth Judicial District, Gallatin County. The District Court based its dismissal on plaintiffs’ failure to exhaust their administrative remedies. We reverse the order of the District Court.
The issue is whether plaintiffs denied overtime compensation under § 39-3-405, MCA, must seek relief exclusively from the Commissioner of Labor under the provisions of Title 39, Chapter 3, MCA, entitled, “Wages and Wage Compensation.”
At the filing of the complaint, plaintiffs were employees of the Glacier Mountain Cheese Company (GMCC) in Gallatin County, Montana, who is the named defendant in this action. The complaint alleged that as an employer GMCC is subject to the provisions of the Montana labor laws contained in Title 39, Chapter 3. Plaintiffs alleged that GMCC was in violation of § 39-3-405, MCA, which provides in relevant part:
“OVERTIME COMPENSATION. (1) No employer shall employ any of his employees for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of 40 hours in a workweek at a rate of not less than IV2 times the hourly wage rate at which he is employed.”
Plaintiffs sought damages for overtime hours worked at the rate of 1V2 times the hourly wage, a penalty for failure to pay the overtime compensation as it became due upon termination of employment pursuant to § 39-3-206, MCA, and costs and attorney fees under § 39-3-214, MCA.
The defendant, GMCC, filed a Rule 12(b)(1) motion to dismiss, alleging that jurisdiction properly lies with the Department of Labor and that plaintiffs failed to exhaust their administrative remedy. The District Court granted defendant’s motion and ordered dismissal of the action.
In this case we are called upon to interpret various provisions of Title 39, Chapter 3, entitled “Wages and Wage Compensation.” Specifically, the statutes under Part 2 and Part 4 must be reconciled in order to determine whether a wage claimant must exhaust an administrative remedy with the Commissioner of Labor or whether an action can be initiated in District Court. The statutes relevant to this inquiry are as follows:
“39-3-209. Commission of labor to investigate violations and institute actions for unpaid wages. It shall be the duty of the commissioner of labor to inquire diligently for any violations of this part and to institute actions for the collection of unpaid wages and for the penalties provided for herein in such cases as he may deem proper and to enforce generally the provisions of this part.
“39-3-211. Commissioner to take wage assignments. Whenever the commissioner determines that one or more employees have claims for unpaid wages, he shall, upon the written request of the employee, take an assignment of the claim in trust for such employee and may maintain any proceeding appropriate to enforce the claim, including liquidated damages pursuant to this part. With the written consent of the assignor, the commissioner may settle or adjust any claim assigned pursuant to this section.
“39-3-212. Court enforcement of commissioner’s determination. A determination by the commissioner of labor and industry made after a hearing as provided for in parts 2 and 4 of this chapter may be enforced by application by the commissioner to a district court for an order or judgment enforcing the determination if the time provided to initiate judicial review by the employer has passed. The commissioner shall apply to the district court where the employer has its principal place of business or in the first judicial district of the state. A proceeding under this section is not a review of the validity of the commissioner’s determination.
“39-3-407. Enforcement. Enforcement of this part shall be treated as a wage claim action and shall be pursued in accordance with part 2 of this chapter, as amended. This part may also be enforced in accordance with part 5 of this chapter for the benefit of certain employees in the mineral and oil industry. The commissioner may enforce this part without the necessity of a wage assignment.
“39-3-408. Provisions cumulative. (1) The provisions of this part shall be in addition to other provisions now provided by law for the payment and collection of wages and salaries but shall not apply to employees covered by the Fair Labor Standards Act except as provided in subsection (2).
“(2) Sections 39-3-402 and 39-3-404 shall apply to an employee covered by the Fair Labor Standards Act if state law provides a minimum wage that is higher than the minimum wage established under federal law.”
Plaintiffs rely primarily upon this- last statute, § 39-3-408, MCA, which they contend makes the remedy provisions of Title 39, Chapter 3 cumulative so that exhaustion of administrative remedies is not required. Despite the clear and unambiguous language of that statute, the defendant GMCC argues that the other statutes cited above indicate a legislative intention that the Commissioner of Labor must first consider wage claims before the matter goes to district court. The lower court agreed, ruling that § 39-3-408, MCA, should not act as a hedge on the doctrine of administrative remedies.
We first note the general rule of statutory interpretation found in § 1-2-102, MCA, which states that legislative intent controls. Legislative intent is to first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. Oldenburg v. County of Flathead (1984), 208 Mont. 128, 130, 676 P.2d 778, 779. We conclude that § 39-3-408(1), MCA, is clear and unambiguous in its designation of cumulative remedies:
“The provisions of this part shall be in addition to other provisions now provided by law for the payment and collection of wages and salaries . . .” (Emphasis added.)
Defendant argues that despite a lack of ambiguity, § 39-3-408, MCA, has been impliedly altered by the subsequent enactment of other statutory provisions under Title 39, Chapter 3. Specifically, the defendant points to § 39-3-212, MCA, enacted in 1974, which gives the Commissioner the right to apply to a district court for an order enforcing the Commissioner’s determination. The defendant contends that any causes of action recognized by the Legislature upon passage of § 39-3-408, MCA, in 1971 were thereafter subjected to the 1974 provisions of § 39-3-212, MCA.
In this regard, defendant attaches significance to the cumulative remedy provision of Part 5, which applies to mineral and oil employees, and attempts to distinguish it from the cumulative provision of Part 4. The .cumulative remedy provision of Part 5 states:
“Remedy cumulative. The remedy herein provided for the greater security for the payment of wages and salaries and the collection thereof shall be in addition to any remedy now provided by law for the payment and collection of wages and salaries.”
Section 39-3-520, MCA.
Defendant argues that § 39-3-520, MCA, is unlike the cumulative provision of § 39-3-408, MCA, because it clearly stands alone without reference to any other part of Title 39, Chapter 3 as a means for its enforcement. Contrastingly, § 39-3-408, MCA, is subject to § 39-3-407, MCA, which requires enforcement of Part 4 to be pursued in accordance with Part 2. Part 2 refers to the powers and duties of the Commissioner of Labor. See §§ 39-3-209 to 213, MCA.
While this argument is discernible, we hold that it does not provide sufficient basis for this Court to ignore the plain language of § 39-3-408, MCA. That statute provides for cumulative remedies. As a final point, § 39-3-408, MCA, was amended in 1987 to include Subsection (2), which provides that the section applies to an employee covered by the Fair Labor Standards Act. While Subsection (2) does not apply as a matter of law to this case, the reenactment of subsection (1) in 1987 does indicate a cumulative process. We hold that resort to the Commissioner of Labor is not plaintiff’s exclusive option.
Reversed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, SHEEHY, WEBER and GULBRANDSON concur.
|
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MR. JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from a judgment for amounts due and owing on a promissory note and a customer’s job-by-job account. Dan Donovan, d/b/a D.J. Donovan Construction (Donovan), is a building contractor. Aldrich & Company (Aldrich), is a retailer of building supplies. Donovan executed a promissory note for approximately $5,400 owed to Aldrich on an “open” account. He also maintained a “job-by-job” account with Aldrich, each item charged being assigned to a specific project. Due to nonpayment of amounts due on the note and the account, Aldrich brought suit in the District Court of the Thirteenth Judicial District, Yellowstone County. Donovan counterclaimed for fraud and breach of warranty regarding building materials purchased from Aldrich. Both sides moved for summary judgment. Aldrich obtained a summary judgment in its favor. On appeal, Donovan argues procedural matters and there are questions of material fact which exist as to Aldrich’s claim. We affirm the District Court’s judgment.
Donovan presents three issues for review:
1. Did the District Court’s denial of summary judgment to Donovan, in violation of Rules 8(d) and 36(a) and (b), M.R.Civ.P., constitute an abuse of judicial discretion and/or clear error requiring reversal and entry of judgment for Donovan?
2. Did the District Court’s grant of summary judgment to Aldrich, in spite of its failure to file an Answer to the First Amended Counterclaim, constitute an abuse of discretion requiring reversal?
3. Should the District Court’s judgment be reversed, and the cause remanded for trial?
While working as a contractor in Billings, Donovan concentrated on residential and commercial remodeling. He maintained an “open” charge account with Aldrich. Donovan encountered problems in making payments on his open account. When the account reached approximately $5,200, Aldrich informed Donovan that he would have to execute a promissory note in that amount before any further credit could be extended to him. In July of 1984, Donovan executed such a note.
Aldrich then agreed to open a “job-by-job” charge account for Donovan. Charges to the account included items used in a remodeling job for a Mr. Graff. Graff and Donovan had a disagreement during the course of the job, and Donovan refused to charge any more materials for Graff to the job-by-job account. Graff then agreed to open his own account with Aldrich, which he used to charge items for the work being done by Donovan. Due to nonpayment of mounting sums owed on the Graff project, Aldrich eventually placed a mechanic’s lien on Graffs house. The lien was later foreclosed, and according to Aldrich, the proceeds were used to pay off both Graff’s own account and the charges in Donovan’s job-by-job account related to the Graff job.
Donovan continued to have problems paying Aldrich. In January of 1986, Aldrich initiated this action for nonpayment against Donovan, seeking collection of the note. In February of 1986, Aldrich amended its complaint to add a claim for the unpaid balance of Donovan’s job-by-job account.
The pleadings and motions in this case are a morass. The case reached a point where the matters to be addressed by the District Court were: (1) Aldrich’s renewed motion for summary judgment, with attendant briefs, affidavits and exhibits; and (2) Donovan’s combined motion for (a) leave to amend his counterclaim a second time, (b) summary judgment, and (c) to reopen and compel discovery, also accompanied by briefs, affidavits and exhibits. The court granted Donovan’s motion to amend his counterclaim, but denied his discovery and summary judgment motions. The court granted Aldrich’s motion for summary judgment. This appeal followed.
At the outset, our review of the record in this case has shown that the District Court is to be commended, both for its patience and its persistence in examining the record to arrive at its ruling.
I.
Donovan’s arguments on appeal are essentially those he raised in the District Court, and fall into two categories. The first is based on procedural rules, and the second is based on substantive law. Donovan’s procedural arguments assign error to the District Court’s decisions to grant summary judgment in favor of Aldrich and deny summary judgment in favor of Donovan for the same reasons. According to Donovan, Aldrich’s failure to file discovery responses within the time specified in Rule 36, M.R.Civ.P., resulted in Donovan’s requests for admissions being deemed admitted. Donovan also invokes Rule 8, M.R.Civ.P., for the proposition that Aldrich’s failure to respond to his first amended counterclaim means that the allegations of fraud found there are also deemed admitted. We disagree.
The District Court’s Memorandum and Order notes that Aldrich’s delay in responding to discovery was not the result of bad faith on Aldrich’s part, which afforded the court discretion to allow the responses to be filed late. The court cited Heller v. Osburnsen (1973), 162 Mont. 182, 510 P.2d 13, as authority for its exercise of discretion. In Heller, this Court noted that the purpose of Rule 36, M.R.Civ.P., is to alleviate delay in trials by removing uncontested issues; if no prejudice would ensue, a court could allow untimely filing in its discretion.
Aldrich’s delay in filing its response was at least in part due to the fact that after this action began Aldrich’s counsel moved to New York City. He was served there with Donovan’s requests for admissions and interrogatories. According to the affidavit of the Vice President of Aldrich, he did not have knowledge of the requests until shortly before Aldrich’s new counsel filed the response. The record does not disclose any bad faith on Aldrich’s part, and given the fact that Donovan received Aldrich’s responses nearly a year before the court’s Memorandum and Order was issued, Donovan was not prejudiced by the delay.
The discretion granted courts under Rule 36 in Heller applies with equal force to Donovan’s Rule 8 argument regarding his amended counterclaim. In fact, the procedural rules relied on by Donovan, if enforced strictly, could have worked against him. Donovan’s amended counterclaim was not filed until after Aldrich filed an answer to Donovan’s original counterclaim. Because Aldrich had filed its answer to the original counterclaim, Donovan was required under Rule 15, M.R.Civ.P., to seek leave of court before filing his amendment. He did not do so until he filed the combined motion ruled on by the court in the Memorandum and Order appealed here. The court technically did not grant leave to file the amendment until it granted summary judgment in favor of Aldrich, thereby obviating the need for a response by Aldrich.
Moreover, most of the documents in this case were untimely filed. Strict construction of procedural rules could have resulted in judgment against Donovan for failure to file a timely response to Aldrich’s complaints. The court’s leniency allowed for consideration of the merits of both Aldrich’s claims and Donovan’s counterclaims. Donovan therefore was not prejudiced by the court’s exercise of discretion.
II.
Donovan’s substantive arguments first address his counterclaim, and then Aldrich’s claim. Donovan’s original counterclaim, for breach of warranty alleged that certain vinyl siding he purchased from Aldrich was not fit for its intended purpose. After installation, the siding warped and blistered, requiring replacement. Donovan alleged the replacement costs as his economic loss. The District Court addressed this claim only briefly, because it found that Donovan had not shown damages. He had walked off the job by the time the siding was replaced; the contractor who took over the job purchased the replacement siding. On appeal, Donovan relies on his argument that the procedural rules discussed above rendered his requests for admissions and the allegations in his counterclaims deemed admitted, thereby proving his case. We have held Donovan’s procedural arguments insufficient, and our review of the record shows the District Court to be correct. Donovan made no showing of damages to the District Court. We therefore affirm the District Court on this question.
Donovan’s fraud claim alleged that two payments he made to Aldrich were not properly credited. In his briefs filed with the District Court, Donovan admits that the payments at first were credited, but alleges that these same amounts were later included in the lien filed by Aldrich against Graff. Donovan thus alleges that the statements of account sent to him by Aldrich were known by Aldrich to be misrepresentations, which Donovan relied on to his detriment by filing an action for labor and materials costs against Graff. The District Court held this claim insufficient, because the “facts” alleged by Donovan (e.g., Aldrich’s knowing misrepresentations) were mere conclusory statements rather than evidence. The court held that Donovan had presented virtually no evidence to support his claim, which therefore failed as a matter of law.
On appeal, Donovan again relies on allegations supposedly deemed admitted by the procedural rules discussed above to prove his case. We have held that these allegations were not deemed admitted, so this argument fails. However, even if the allegations in Donovan’s fraud counterclaim were deemed admitted, his claim would fail.
The two payments at issue were in the approximate amounts of $500 and $2,300. The record shows that the first payment was credited to Donovan’s note, and the second to Donovan’s account for the Graff job. Donovan admitted in his briefs below that these credits were correct. The record also shows that when the payments were made, Donovan did in fact owe the money to Aldrich. The gravamen of Donovan’s claim is that these amounts were included in Aldrich’s lien against Graff, which somehow worked to Donovan’s detriment in asserting his claim against Graff. We disagree.
First, no misrepresentations were made to Donovan regarding these payments. The sum sought by Aldrich on the note reflects credit for that payment, and no sum is sought for Graff materials charged to Donovan’s account. Any misrepresentation that may have been made by Aldrich regarding amounts owed on the Graff job would have been made in its lien action against Graff.
Second, any reliance by Donovan on the credits shown in Aldrich’s statements was irrelevant. The note at issue has nothing to do with the disputed Graff sums. The note was signed in July of 1984, and concerned amounts charged by Donovan prior to that date. The record, including the lien filed by Aldrich against Graff, shows that Aldrich began supplying materials for the Graff job in September of 1984, two months after the note was signed. Donovan therefore could not have included the note payment in any claim against Graff. The record also shows that approximately $16,000 worth of materials were supplied by Aldrich for the Graff job. It would be illogical to assume that Donovan’s decision to bring a claim against Graff for a remodeling job of this size turned on the $2,300 payment he made to Aldrich. While Donovan’s action against Graff was the subject of arguments to the District Court in this case, the record does not show that the disputed $2,300 payment had anything to do with Donovan’s failure to obtain judgment.
Donovan would have had to show nine separate elements to obtain a judgment for fraud. Selvidge v. McBeen (Mont. 1988), [230 Mont. 237,] 750 P.2d 429, 45 St.Rep. 168. The District Court correctly held that Donovan’s arguments alleged conclusory statements rather than facts. Our review has also shown that the facts in the record do not support two key elements of fraud, misrepresentation and reliance. We therefore affirm the District Court on this question.
We now turn to the issue of Aldrich’s entitlement to summary judgment for sums sought on Donovan’s note and charge account. Only two of Donovan’s arguments remain to be addressed at this point, the others having been discussed above. On the question of the note, Donovan admits he executed the note, but asserts that he did so under economic duress. He alleges duress in that Aldrich would not extend him further credit unless he signed the note.
A claim of economic duress requires a showing that the contract at issue was made under circumstances evincing a lack of free will on the part of the contracting parties. It is not sufficient to show that consent was secured by the pressure of financial circumstances, or that one of the parties merely insisted on its legal right. Shiplet v. First Security Bank of Livingston (Mont. 1988), [234 Mont. 166,] 762 P.2d 242, 45 St.Rep. 1816. The note at issue here evidenced an existing debt owed by Donovan to Aldrich. Aldrich did not force Donovan to incur the debt. Aldrich had a legal right to require security of some sort before extending further credit to Donovan. He was therefore “pressured” only by his need for further credit, not by any duress imposed by Aldrich. Aldrich was therefore entitled to summary judgment on the note.
Donovan argues that the amount sought on his account had been paid in full. Aldrich submitted account statements showing the amount it sought as being owed by Donovan on two specific jobs. Donovan’s argument alleged that he had “paid in full”, but listed two different jobs. Donovan never denied owing money for the two jobs listed by Aldrich. Aldrich was therefore entitled to summary judgment as to these amounts as well. We affirm the judgment of the District Court.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.
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] |
MR. JUSTICE WEBER
delivered the Opinion of the Court.
Alice Price appeals from an order of the District Court for the Eighth Judicial District, Cascade County, dismissing with prejudice her cause of action against the City of Great Falls and Richard D. Stevens, hereinafter referred to as “defendants.” We affirm.
Ms. Price raises seven issues for our review, none of which directly address the propriety of the District Court’s dismissal of this action. We therefore restate the issue on appeal as whether the District Court properly granted defendants’ motion to dismiss pursuant to Rule 12(b), M.R.Civ.P. on the basis that defendants were immune from suit? Since we conclude that dismissal was proper, we will not discuss the remaining issues raised by Ms. Price.
On October 30, 1987, Alice Price was cited for violation of Great Falls City Ordinance 8.48.080 for knowingly and purposely allowing waste paper, clothing, boxes, discarded furniture, appliances, and other rubbish to accumulate on her property. The notice to appear and complaint was signed by Richard D. Stevens, a Zoning Technician for the City of Great Falls, who is a named defendant in this action.
At a non-jury trial in City Court, Ms. Price was found guilty of creating a nuisance, on her property at 620 6th Avenue South. The court ordered Ms. Price to completely abate the nuisance within seven days, and further ordered that if the nuisance was not completely abated by March 2, 1988, the City of Great Falls shall do so and charge the cost of the procedure to Ms. Price. When she did not clean up her property by the ordered date, Richard Stevens, pursuant to the court’s order, contracted out the clean-up project and billed Ms. Price for the cost, which was $495.
Ms. Price appealed her conviction to the District Court, and in subsequent pleadings, sought compensatory damages for personal property which was allegedly wrongfully removed, and for mental distress and suffering, as well as punitive damages and attorney fees. These damages were asserted against defendants Richard Stevens and the City of Great Falls, as well as the two individuals hired to complete the clean-up of Ms. Price’s property. The City of Great Falls and Richard Stevens filed a motion to dismiss Ms. Price’s claims for relief pursuant to Rule 12, M.R.Civ.P., based on procedural errors, including the transformation of a criminal matter to a civil action under a rule providing for appeals of civil cases to district court. Defendants also argued that they were immune from suit. The District Court granted defendants’ motion, concluding that both the City of Great Falls and Richard Stevens were immune from suit for damages under the facts of this case. It is from this order that Ms. Price appeals.
The actions complained of in this case relate to Richard Stevens’ activities in carrying out, on behalf of the City of Great Falls, the sentence legally imposed by the City Court Judge. The District Court determined that in so doing, Mr. Stevens was immune from suit under § 2-9-112, MCA, as interpreted in Knutson v. State (1984), 211 Mont. 126, 683 P.2d 488. Section 2-9-112, MCA, provides:
“Immunity from suit for judicial acts and omissions. (1) The state and other governmental units are immune from suit for acts or omissions of the judiciary.”
In regard to that section this Court first stated:
“. . . The immunity statute applies to judicial acts with no stated limitation. It applies to protect the state and governmental agencies whenever the judicial power of the state is put to use in a judicial action . . . .”
683 P.2d at 490.
In that case Ms. Knutson argued that the immunity statute did not apply to the Department of Institutions which she contended had miscomputed the good time allowance. The Court concluded that the Department of Institutions was protected under the immunity section, stating:
“Sentences are pronounced by courts, not by the Department of Institutions. Knutson’s sentencing was the result of a judicial act. Further, the immunity statute protects any governmental agency involved in the judicial act of sentencing. ” (Emphasis supplied.)
683 P.2d at 490.
The issue in the present case is whether or not the City as well as Mr. Stevens are protected by the immunity statute. Under the analysis of Knutson, we conclude that they are. In carrying out the express provisions of the sentence, Mr. Stevens was directly involved in an act of the judiciary and is therefore afforded immunity. Since he was acting as an agent of his employer, the immunity statute also protects the City of Great Falls. We hold that § 2-9-112, MCA, provided immunity for both the defendants City of Great Falls and its agent, Richard Stevens.
We affirm the order of the District Court dismissing the plaintiffs case with prejudice.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.
|
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] |
MR. JUSTICE HARRISON
delivered the Opinion of the Court.
Claimant James P. Hedegaard appeals from the Workers’ Compensation Court’s limited conversion of his biweekly benefits to a lump sum award. We affirm in part, reverse in part and remand for proceedings consistent with this opinion.
Claimant is permanently totally disabled as the result of a back injury he suffered in 1980 and for which he has been receiving biweekly disability benefits. In May of 1986, claimant petitioned the Workers’ Compensation Court for a partial lump sum award of $9,181.27 to enable him to pay off the loan on his 1984 Ford LTD. Before the petition was heard, the 1984 Ford was repossessed.
Claimant and his wife were left without reliable transportation when their 1980 Ford Pinto was destroyed by fire. In December, 1987, claimant financed the purchase of a new Buick automobile for approximately $12,900. Additionally, during this time claimant retained new counsel. Claimant’s new attorney failed to amend the petition request of $9,181.27 for an amount sufficient to pay off the new Buick. During the hearing, the Workers’ Compensation Court refused to allow any amendment of the $9,181.27 petition request. However, the court concluded that the claimant was entitled to a lump sum award for the purchase of the 1987 Buick:
“[Finding of Fact]
“8. If the claimant is not awarded the requested lump sum, the 1987 Buick will be repossessed. Claimant and his wife need reliable transportation.
“[Conclusion of Law]
“2. Claimant is entitled to receive an advance on his compensation in the amount of $9,181.27. The insurer may recover the advance by reducing his weekly compensation by $20.00 per week.”
Claimant requested attorney’s fees based upon an hourly fee of $225 multiplied by 171.05 hours which his attorney claims were spent in pursuit of the lump sum award, notwithstanding that his attorney missed at least three deadlines for exchanging exhibits, preparing a final pretrial order and following the court’s orders relative to the issues to be tried. The court denied the request of $38,486.25 in attorney’s fees and awarded an attorney fee based upon the 33% contingent fee agreement.
Claimant presents the following issues for our review:
1. Did the Workers’ Compensation Court abuse its discretion by awarding a partial lump sum advance of $9,181.27, rather than the $12,900 needed to pay off the 1987 Buick?
2. Did the Workers’ Compensation Court abuse its discretion by granting respondent a weekly recoupment of $20 per week from the claimant’s disability benefits?
3. Did the Workers’ Compensation Court abuse its discretion by refusing to award attorney’s fees without considering the documentation at an evidentiary hearing?
Issue No. 1
Did the court abuse its discretion by refusing to award sufficient funds to pay off the 1987 Buick? We conclude it did. The amount awarded, $9,181.27, was initially requested by claimant’s original counsel to pay off the 1984 Ford LTD which was subsequently repossessed. This sum originally included $1,836.25 in attorney’s fees.
Claimant financed the purchase of a new automobile for an amount the court concluded was not unreasonable. The Court also concluded claimant was entitled to a lump sum award because the claimant needed reliable transportation. Additionally, the court awarded the full $9,181.27 for the purchase of the automobile, and made a separate award of attorney’s fees, even though the court earlier refused to allow any amendment of the petition request.
While we recognize the court’s need to require adherence to pretrial orders, the facts of this case do not justify a denial of funds sufficient to pay off the automobile loan. This purpose of the lump sum request was known to the respondent since May of 1986, and no prejudice would have resulted had the court allowed the claimant to amend his petition. Additionally, the court did amend the petition, without objection by respondent, when it awarded the full $9,181.27 toward payment of the automobile loan.
The parties agree that, under these facts, the “best interest” of the claimant test determines whether the lump sum award is proper. In light of the court’s determination that the claimant’s best interests dictate that he is entitled to a lump sum award to pay off his automobile loan, we conclude it was unreasonable and an abuse of discretion to limit the award to an amount which is insufficient to meet that need.
Issue No. 2
Did the Workers’ Compensation Court abuse its discretion in granting respondent a weekly recoupment of $20 per week from the claimant’s disability benefits?
Claimant argues the insurer is only entitled to recoup advances at the distal end of the claim or at the time of full and final settlement. We disagree.
The Workers’ Compensation Court concluded the insurer should be able to recover the advance through a reduction of the biweekly payments. This same conclusion was reached earlier by the Workers’ Compensation Court in Lecher v. Montana Physician’s Service and Fireman’s Fund, WWC No. 8503-2956, Volume VI, No. 325 (filed August 21, 1985). There the court reasoned at Conclusion of Law No. 5:
“It is not sufficient for a claimant to simply request a lump sum with credit to the defendant from the distal end of the claimant’s entitlement. There may be factual situations in the past and in the future where that is an appropriate Court ordered award. However, most claimants are already on an extremely tight budget and simply planning on having a greatly reduced income or no income at some point in the distant future is not debt management nor is it a plan. Generally, claimant should anticipate a biweekly repayment to the defendant over their estimated lifetime entitlement.”
A claimant is not entitled to double recovery of both a lump sum advance and the biweekly payments. Since a lump sum advance is merely the whole or partial conversion of a claimant’s biweekly payments, the insurer is entitled to recover the advance. Additionally, the Workers’ Compensation Judge considered the claimant’s best interests, including his present and future income, and concluded the lump sum advance, offset by a $20 per week recoupment would meet the claimant’s best interests. The Workers’ Compensation Court, quoted Willoughby v. Arthur G. McKee and Co. (1980), 187 Mont. 253, 257, 609 P.2d 700, 702:
“The criteria determinative of the advisability of conversion to a total or partial lump sum award have generally been held to be . . the best interests of the claimant, his family and for the best interests of the public . . [Citations omitted.] The existence of a ‘pressing need’ and/or ‘outstanding indebtedness’ has likewise been held to be relevant criterion . . . [Citation omitted.]”
We conclude the court’s decision was supported by substantial evidence and did not constitute an abuse of discretion when it allowed the insurer a weekly recoupment of the lump sum advance prior to a final settlement.
Issue No. 3
Did the Workers’ Compensation Court abuse its discretion by refusing to award attorney’s fees without considering the documentation at an evidentiary hearing?
On November 3,1988, the court entered its findings of fact, conclusions of law, and judgment in which it awarded claimant reasonable costs and attorney’s fees pursuant to § 39-71-612, MCA. The order read in part:
“If the defendant or the claimant believes the amount due the claimant’s attorney is unreasonable, then each has 30 days from the date of this Order to file a Motion for Evidentiary Hearing Regarding Reasonableness of Attorney Fees . . .
“Thus, unless counsel can convince the Court otherwise, we are inclined to award the 33 percent contingency fee . . .”
On November 23,1988, claimant’s attorney filed a Memorandum of Time and Costs in which he requested $38,486.25 in attorney’s fees and $993.50 in costs, but he did not request an evidentiary hearing. Respondent filed an objection to the Memorandum and requested an evidentiary hearing. On December 8, 1988, the court awarded attorney’s fees based upon the contingency fee agreement and stated that the claimant had not convinced him that any greater fee should be awarded.
Claimant now argues the court abused its discretion because it did not hold an evidentiary hearing on the requested attorney fees. Claimant relies on our recent decision in Honey v. Stoltze Land and Lumber Co. (Mont. 1989), [236 Mont. 86,] 769 P.2d 42, 46 St.Rep. 202, as requiring an evidentiary hearing before attorney’s fees above the contingency agreement may be denied. We disagree.
The requested attorney’s fees in Honey were denied by the Workers’ Compensation Court, without any consideration, simply because the attorney did not request an evidentiary hearing. We reversed because we concluded the claimant’s attorney was not required to request an evidentiary hearing before the court could consider the evidence under the Wight guidelines. Wight v. Hughes Livestock Co., Inc. (1983), 204 Mont. 98, 664 P.2d 303. In the present case, however, the evidence was considered and the court determined the requested fees were unreasonable. There was no abuse of discretion in denying the requested attorney’s fees.
Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER, GULBRANDSON and HUNT concur.
|
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] |
MR. CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
Randall Rudolph appeals his conviction of robbery in the Fourth Judicial District, Missoula County. The four issues he raises on appeal are:
1. Was the show-up identification of him as a co-assailant impermissibly suggestive so as to violate his due process rights;
2. Was it an abuse of discretion to deny defendant’s protective order regarding witness Trowbridge;
3. Was the State impermissibly allowed to admit into evidence a nondisclosed statement of the defendant;
4. Was it an abuse of discretion to refuse the admission of witness C. Rude’s testimony.
We affirm.
On the evening of December 8, 1986, Greg Jasperson was assaulted in downtown Missoula near the corner of Pattee and Main Streets. His assailants, two males of average height and stocky build, beat him until he fell to the ground and then kicked him about the head until he became unconscious. The assailants robbed him of the contents of his pockets and then briskly walked away proceeding south down Pattee Street.
Various stages of this crime were viewed by three eyewitnesses. Witness Thieler came out of the Bon, a nearby clothing store, and got in her car which was in the Bon parking lot. She exited the parking lot onto Pattee Street and immediately noticed two men kneeling over a body on the sidewalk by the Executive Motor Inn. She assumed the two men were aiding the man on the sidewalk until she saw one of the men kick the body with his boot until it rolled into the gutter.
By this time Thieler’s car was at the stop sign of Pattee and Main. She watched the two men walk briskly south down Pattee Street. She kept them in sight in her rearview mirror long enough to note that they did not go into the Elks Club, but rather kept going southward on Pattee toward the Missoula Sheraton. Thieler testified at trial that although she was trying to note where the men went, she momentarily lost sight of them while she turned her head to check for traffic.
Thieler then drove around the block and returned to the Bon to seek assistance for the victim. She enlisted the assistance of a man she knew at the Bon. However, by the time they returned to the body, several people were already assisting the victim and she was advised that the police had been called. The police arrived momentarily.
Orlando Gonzales also witnessed part of the crime. Gonzales was walking north on Pattee Street near the Elks Club when he passed by two men going through a wallet. Gonzales assumed that the two were discussing a purchase and were talking about how much money they had.
As Gonzales approached the Executive Inn parking lot, he noticed what appeared to be a “bum” lying in the street. When he got closer, he discovered it was a well-dressed man who had obviously been hurt. He ran into the office of the Executive Inn where the receptionist was phoning the police at that minute.
The third witness was Leon Furnish. He was sleeping in a room at the Executive Inn when he was awakened shortly after 9:00 p.m. by loud cries for help. He ran to the window and on the street below saw two men kicking a man who had fallen to the sidewalk. The victim raised his hands to protect his eyes and teeth and cried, “please don’t kick me, why are you kicking me.”
The attackers kicked the back, sides and head of the victim. Furnish then saw the assailants search the pockets and take the contents. As they stood up to leave, one of the attackers shoved the body into the street with his boot. They then walked down Pattee Street in a southerly direction and out of Furnish’s view. As they walked off, Furnish noted that one man wore a hat of some type which appeared to have something “flapping” out from underneath it.
Furnish called the hotel desk and told the receptionist to call the police and call an ambulance for the man who had been beaten outside.
The police call came in at 9:15. At 9:18, the police arrived at the scene. By that time, several passers-by had gathered, covered Greg with a sleeping bag and were administering first aid.
The police asked if anyone had seen the attack or noticed anyone leaving the area. Thieler and Gonzales both explained that they saw two men, dressed in heavy dark coats, one with long flowing blonde hair and a cap on and one with dark hair walking south on Pattee. The police left immediately proceeding south on Pattee to search the area.
At the southern end of Pattee Street near the Missoula Sheraton (approximately six blocks away), the police spotted two men, one with dark hair and one with long blonde hair and a black stocking cap. These two men were stopped and questioned by one police officer while another officer returned to the crime scene to question the witnesses.
The two eyewitnesses at the scene, Thieler and Gonzales, were asked if they would go with the police to see if they could identify two men which were stopped by the police. They agreed and were transported by police car, Thieler in the front seat and Gonzales in the back seat. The witnesses were separated by a plexiglass screen and did not confer with one another.
When they reached the Montana Power substation near the Sheraton, where the other patrolman was detaining the two men, Thieler and Gonzales remained in the car. The two men were placed approximately fifteen feet from the front of the patrol car with its headlights shining on them. The two men gave a profile view and view of their backs. Witness Thieler asked if one of them would put his hat back on. The patrolman with the witnesses radioed to the other officer and asked if either suspect had a cap, whereupon Rudolph produced his black stocking cap and donned it.
Thieler then quickly made a positive identification stating that the long blonde hair coming out from under the black stocking cap created the exact figure which she saw.
Gonzales likewise identified the two suspects as the men he passed who were going through the wallet. Gonzales based his identification on the stature and build of the two men as well as the warm, dark clothing they were wearing.
Rudolph was tried separately from the co-defendant, and was convicted of robbery by a jury on October 19-21, 1987. He was sentenced to fifteen years in the Montana State Hospital in lieu of prison incarceration. He was also designated a dangerous offender. Rudolph appeals, questioning many procedural aspects of the identification and the trial.
I. “Show up” Identification
Rudolph asserts that the conviction was based solely on the “show up” identification held that night and that procedure violated his due process rights by being impermissibly suggestive. We disagree.
The importance of the eyewitness identification is underscored, Rudolph asserts, by the lack of corroborating evidence and inconsistencies in the State’s case. All accounts of the incident state that the two assailants proceeded south along Pattee Street walking on the east sidewalk. However, the victim’s wallet was found the next day across the street from the attack on the west side of Pattee Street. Witness Thieler admitted losing sight of them momentarily while she looked both ways for traffic at the intersection. The State argued that it must have been just long enough for one of them to dispose of the wallet.
The second inconsistency deals with the money stolen from the victim. Jasperson testified that only a small amount of money was stolen: five to eight dollars. However, when stopped just moments after the attack, Rudolph had less than two dollars in his possession.
Thirdly, Rudolph’s clothing, a dark green ski jacket, black cap, blue jeans and boots, were not retained by the police for evidence because Rudolph asked to keep his clothes, stating that he had no other clothes with him in Missoula. Thus, when he was released from jail, he was given his clothes. He was then unable to produce them at trial; however, all witnesses, as well as Rudolph, agree to the description of his apparel that night.
Therefore, it was not possible to check the clothing for blood or hair samples, although no blood stains were noted in the police report. The officers testified that they did not recall any blood on Rudolph’s clothes or boots that night.
Lastly, at trial Gonzales and Thieler were unable to identify Rudolph by means of a facial photo lineup. Each stated that their identification was based, not on a view of the faces, but rather on stature (height, weight and build), hair (color, length and facial hair), and clothing (style, color, and the cap). Thus, the identification became a key factor in the prosecution’s case.
To pass constitutional muster, a pretrial identification must not be (1) impermissively suggestive, nor (2) have such a tendency for misidentification under the totality of the circumstances that it violates due process rights. This two-prong test was set forth in State v. Lara (1978), 179 Mont. 201, 587 P.2d 930, and is controlling on this issue.
In State v. Lara, defendant participated in a “show up” wherein he was identified by the victim as the armed robber involved in a one person robbery of a Laurel food store. The Laurel police apprehended Lara within fifteen to twenty minutes of the robbery and he was identified by the victim at the scene of the arrest shortly thereafter.
Regarding that identification, we stated:
“Considering the totality of the circumstances we conclude that while the identification procedure was unnecessarily suggestive, it did not create a situation in which there was a substantial likelihood of misidentification and therefore not violative of due process.”
Lara, 587 P.2d at 933.
We also find Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, instructive on this issue. Biggers sets forth five factors relating to the circumstances under which pretrial identifications are made. Trial courts should consider the following in evaluating the risk or likelihood of misidentification:
“. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”
Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-383.
Thieler’s testimony regarding her identification certainly passes any test set up by the Lara case and by the Biggers factors. Thieler stated that she was concerned the attackers would see her watching them, so she drove forward slowly and then proceeded to watch them for several minutes in her rearview mirror. Thus, her opportu nity to view the attackers was good, even if she did not view their faces specifically.
Her attention was keen and her description to the police was accurate regarding the assailants’ gender, size, hair color and length, and clothing style and color. Also lending credibility to the validity of the identification was the very close proximity in time and distance from the crime scene. The suspects were apprehended just blocks away from the scene and only moments after the police arrived. Further, all witnesses testified that the downtown streets were deserted that particular winter night, shortly after 9:00 p.m. Not only did they fit the description, the two suspects detained were also the only two pedestrians within many blocks of the crime scene.
Rudolph’s own testimony regarding his actions on that night was incredible. Although in the immediate vicinity, Rudolph testified that he had no knowledge whatsoever of the crime, including the fact that he heard no cries for help, no sirens, and saw no lights flashing from emergency help vehicles.
The State concedes that the identification process was suggestive by the mere fact that the two people were stopped so close to the scene, so soon, and that only those two were shown to the witnesses. Indeed, a “show up” identification requiring a “yes or no” answer is a far less desirable situation than positively picking out a person from an anonymous lineup. Biggers, supra; State v. Lara, supra; State v. Campbell (1985), 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197: As we cautioned in Campbell, “[l]aw enforcement agencies [are] ill advised to rely solely on one-to-one showups in identifying suspects with a crime.” Campbell, 711 P.2d at 1362.
Suggestive as it was, based on Lara and the factors set forth in Biggers, we conclude that this identification did not have such a tendency for misidentification so as to violate Rudolph’s due process rights under the immediate circumstances of this case.
We conclude the Biggers factors were also met by eyewitness Gonzales and that his identification was also constitutionally sound. Gonzales did not view them as long as Thieler and his identification seemed apprehensive initially. However, Gonzales passed the suspects on a narrow sidewalk near the crime scene and observed them long enough and carefully enough to notice their gender, size, clothing and what they were doing. His opportunity to view them and the attention he displayed lend reliability to his identification. Also helpful is the close proximity which was discussed above regarding witness Thieler. We find no error in admitting into evidence the results of this “show up” identification. We note here that witness Furnish did not participate in the identification that night, but he did testify at trial as to what he observed that night.
Lastly, we are not disturbed by the minor discrepancies in the witnesses’ descriptions which were asserted by defense counsel. These discrepancies go more to the credibility of each witness and the weight the jury will give their testimony, rather than to the constitutionality of admitting the identification based on varying testimony of other witnesses. See Campbell, supra.
II. Protective Order
Defense counsel moved for a protective order to conceal the contents of Keith Trowbridge’s testimony to prevent the State from “capitalizing” on it by changing their strategy. The motion was denied. We agree.
Keith Trowbridge, an employee of the Firestone Service Station located directly across the west side of the street from the crime scene, would testify that he found the victim’s wallet in the alley behind the Firestone property the morning after the robbery. Defense counsel anticipated that the State’s case would have Thieler keeping the assailants in constant view on the east side of the street from the time they left the body until they were out of sight. Defense counsel did not want to alert the prosecution to this discrepancy in locations because the police report stated that the wallet was found at the Firestone station and yet the State had not interviewed any of Firestone’s employees.
Defense counsel makes much of the fact that after this motion was denied, Thieler’s testimony was actually that she momentarily lost sight of the two assailants (in which time one of them may have crossed the street). Defense asserts that the issue of continuous or noncontinuous observation by Thieler never would have come up at trial but for the disclosure of witness Trowbridge, and thus his defense was sabotaged. We disagree.
Admitting or refusing evidence lies within the sound discretion of the trial judge. Those rulings will not be overturned unless there is a showing of an abuse of discretion by the trial judge in issuing his ruling. State v. Courville (Mont. 1989), [236 Mont. 253,] 769 P.2d 44, 46 St.Rep. 338; Cooper v. Roston (Mont. 1988), [232 Mont. 186,] 756 P.2d 1125, 45 St.Rep. 978. No such showing can be made in this case.
Protective orders should issue when the disclosure of a witness’s identity would result in a risk or harm outweighing any usefulness of the disclosure to any party. Section 46-15-328(1), MCA. (Emphasis added.) Obviously, there are two flaws with defendant’s motion. First, there was no risk or harm to the witness shown by the defense. Indeed, no harm could result to the witness by the disclosure of his identity — as he was already generally identified in the police report and was not in danger.
Secondly, the statute seeks to weigh the usefulness of the disclosure gained by either party. Defense asserted that the harm done to its case was the impeachment of witness Thieler being blunted and that harm far outweighed the disclosure’s usefulness. We disagree. As noted by the trial judge, a greater showing of harm or imbalance must be made in order to invoke such an extraordinary restriction. It is obvious from the record the State was aware that the wallet was found at the Firestone Station and could have interviewed the employees had they seen fit to do so. Under these facts, we affirm the trial court’s denial of extraordinary relief in the form of a protective order.
III. Nondisclosed Statement
When questioned as to why Rudolph’s clothes were returned to him, rather than seized for evidence, Officer Wicks testified it was because Rudolph stated he had no other clothes in Missoula, all his belongings were in Kalispell. It is undisputed that this hearsay statement by Rudolph previously had not been disclosed and the State fully acknowledges its duty under § 46-15-322(l)(b), MCA, to disclose “all written or oral statements of the accused . . .” However, the State asserts that the defense cannot raise the issue of this undisclosed hearsay on appeal because it did not object at trial; or, in the alternative, that the defendant was not prejudiced by allowing the hearsay remark into evidence. We agree.
The verbatim exchange at trial was as follows:
“Q. [By prosecutor Friedenhauer]: Go ahead, why did you release the clothes?
“A. [By Officer Wicks]: Mr. Rudolph indicated to me that was the only set of clothes he had in Missoula, that he left all his other belongings behind in Kalispell.”
Several questions prior to this exchange, defense objected to the State’s line of questioning regarding the co-defendant. The generic objection (which stated no grounds) was overruled by the court. The court, however, went on to admonish the State to limit its questioning to Rudolph only. Whereupon, the exchange in question occurred. We find no basis in the record for defense counsel’s assertion that the hearsay statement was admitted over his objection.
No objection by defense counsel was made following this exchange either. Therefore, defendant cannot now claim that the District Court abused its discretion and committed reversible error by allowing the statement into evidence.
IV. Testimony Exclusion
Our standard of review for this issue is identical to the previous issue: an abuse of discretion must be shown before a District Court’s ruling on evidentiary questions will be overturned.
Defendant argues that the District Court abused its discretion in refusing to admit the testimony of witness C. Rude. Defense counsel made an offer of proof in chambers asserting that Rude would testify to his eavesdropping on a conversation which occurred in Missoula during early December 1986. The conversation related by two men, now in trouble with the Washington state authorities, was regarding a man they had “rolled” in downtown Missoula, taking a small amount of money from the victim.
The District Court analyzed the proposed testimony in relation to the crime with which Rudolph was charged. The judge found the proposed testimony was too vague regarding the time of the occurrence and the actual crime committed (“rolled” was the best recollection Rude could give and he did not recall the day of the “crime”). Thus, after finding the proposed testimony too tenuous and remote from Rudolph’s case, the judge excluded the evidence for failing the relevancy requirements. We agree.
Relevancy is defined in Rule 401, M.R.Evid., as follows:
“. . . evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Rude’s testimony sought to exculpate Rudolph by incriminating two other unknown individuals upon whom he had been eavesdropping.
The similarities between the crime overheard by Rude and the one attributed to Rudolph are few: two men perpetrated the offenses (one dark haired and one blonde), in downtown Missoula, in December of 1986, for a small amount of money.
The unknown factors of the evidence include what crime was committed, upon whom, when and by whom. These far outweigh the similarities of the two occurrences. Thus, defense is counsel is unable to prove that the proposed testimony is so close in time, place and similar in style so as to be relevant to the question of Rudolph’s innocence or guilt. Absent a closer connection between the two occurrences, or at the very least, a definition of the crime committed by the other unknown assailants, we find no abuse of discretion in refusing this testimony.
In summary, we conclude that the “show up” pretrial identification of Rudolph was constitutionally sound and that the trial court did not abuse its discretion regarding the evidentiary rulings contested at trial.
Judgment affirmed.
MR. JUSTICES HARRISON, GULBRANDSON, SHEEHY and HUNT concur.
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] |
MR. JUSTICE WEBER
delivered the Opinion of the Court.
Claimant appeals the decision of the Workers’ Compensation Court awarding him disability benefits for a knee injury for the statutory maximum of 200 weeks. Claimant contends that he should have received 500 weeks of benefits at a minimum because his disability is attributable to his back in addition to his knee. Claimant also appeals from a subsequent order of the Workers’ Compensation Court regarding attorney fees. We affirm the lower court’s decision as to both disability benefits and attorney fees.
The issues are:
1. Did the lower court err in concluding that claimant has no impairment or disability of his back?
2. Did the lower court err in its determination of attorney fees?
3. Did the lower court err in denying a lump sum award of attorney fees for future benefits?
Claimant was 35 years old at the time of trial and was employed as a heavy duty construction worker when he suffered two industrial injuries which culminated in his disability. The first injury occurred on November 19, 1983, while claimant was employed by Hurt Construction earning $11.30 an hour. While carrying a wall weighing ap proximately 250-300 pounds, claimant tripped and fell, causing the wall to strike his right knee. Under the weight of the wall, claimant testified that he wrenched both his knee and his back.
Claimant went to the emergency room where he was treated by Dr. Adelman, who diagnosed acute low back syndrome. The claimant was next examined on March 21, 1984, by Dr. Avery, an orthopedic surgeon. Dr. Avery diagnosed the injury as a (1) probable tear medial meniscus right knee and a (2) recurrent thoracolumbar strain. He recommended that the claimant undergo knee surgery, although claimant testified that he resisted surgery at that time. Dr. Avery also examined claimant’s back and found not only that the X-rays were normal, but also that his back had full range of motion. No treatment was prescribed. Claimant testified that he just “put up with the pain.” In interpreting Dr. Avery’s diagnosis, another orthopedic surgeon, Dr. Bloemendaal, described “recurrent thoracolumbar strain” as a “weakness that throws his back into spasm. It’s something in that particular area that is very difficult to demonstrate by anything other than examination when they’re in the acute phase. For example, X-rays of that area are normal, and that has been the case with Mr. Sciuchetti. He probably has a weak point up there. When he overdoes things, he gets muscle spasm.”
Following the 1983 injury, claimant decided to continue working in the construction field. The Workers’ Compensation Court found that he did not see another doctor until he suffered his second industrial injury on August 13, 1984, while working for Boland Construction. This injury resulted in a broken right ankle and aggravation of the right knee. While the ankle was healing, claimant’s treating physician, Dr. Bloemendaal, suggested that claimant undergo surgery on his knee. On November 27,1984, the medial meniscus of claimant’s right knee was removed.
At the time he sought treatment for the second injury, claimant testified that he did not mention his back problems to Dr. Bloemendaal, nor did he state it as an injury on his claim for compensation. Regarding the connection between the 1984 injury and claimant’s back condition, the Worker’s Compensation Court found that “(a) dispute exists as to whether or not the second injury also aggravated the claimant’s back.”
Following the second injury, claimant received temporary total disability benefits of $277.00 per week from August 14,1984 to January 7,1985 for the ankle injury. After January 7,1985, claimant received his maximum total disability rate of $286.00 per week for his injured knee. Claimant has not been regularly employed since the second injury. In July of 1985, he filed a cause of action with the Workers’ Compensation Court to determine the nature and extent of his injuries, whether he was receiving the correct temporary total disability rate, whether he was entitled to a lump sum or an increased award as a penalty, and attorney fees. The Workers’ Compensation Court concluded that claimant had reached maximum healing of his ankle with no impairment or disability, and that his back had reached maximum healing in November of 1985 with no impairment or disability. The court also concluded that claimant’s right knee had reached maximum healing on December 1, 1985, with a maximum seven percent impairment based on the testimony of Dr. Bloemendaal, and that as a result of the knee injury claimant could not return to his former employment as a heavy construction worker. The court determined that claimant was totally disabled pending completion of retraining, and ruled that if claimant failed to enter retraining, he would be determined permanently partially disabled. These determinations were based solely upon the injury to claimant’s knee, with none of the disability premised upon the claimant’s back problems.
Pursuant to § 39-71-703, MCA (1983), the court calculated claimant’s permanent partial disability benefit rate to be $143.00 per week for the maximum 200 weeks for a knee injury, thereby totaling $28,600. The court disallowed any lump sum payment or a 20 percent penalty, but did allow reasonable costs and attorney fees.
On appeal, claimant challenges the sufficiency of the benefits awarded, alleging that it was error for the court to limit a finding of disability to his knee. Claimant also challenges the court’s subsequent award of attorney fees.
I.
Did the lower court err in concluding that claimant suffered no impairment or disability to his back?
After reviewing the deposition testimony of four medical experts, the Workers’ Compensation Court made findings thereon and concluded that claimant’s disability was limited to his right knee as a result of the two industrial injuries. Claimant argues that, in reaching this conclusion, the lower court considered only the medical testimony relating to “impairment,” and completely ignored the medical testimony relating to back “disability.” He contends that without findings relating to back disability, the lower court erred in attributing disability solely to claimant’s right knee, and he should be entitled to 500 weeks of benefits.
We note that impairment is but one factor of disability, and both terms are defined under the 1983 Workers’ Compensation Act as follows:
“39-71-121. Disability defined. A worker is disabled when his ability to engage in gainful employment is diminished as a result of impairment, which in turn may be combined with such factors as the worker’s physical condition, age, education, work history, and other factors affecting the worker’s ability to engage in gainful employment. Disability is not a purely medical condition. Disability may be temporary total, permanent total, or permanent partial as defined in 39-71-116.
“39-71-122. Impairment defined. Impairment means any anatomic or functional abnormality or loss of bodily function. Impairment refers to functional use of the body and is a purely medical condition. Permanent impairment is any anatomic or functional abnormality or loss of bodily function after the maximum medical rehabilitation has been achieved. The anatomic or functional abnormality or loss must be considered stable by the physician at the time the impairment rating evaluation is made. An impairment rating is purely a medical determination. Impairment may or may not result in disability.”
In reviewing the lower court’s determination of disability, this Court must determine whether sufficient evidence exists to support that conclusion. Linton v. City of Great Falls (Mont. 1988), [230 Mont. 122,] 749 P.2d 55, 61, 45 St.Rep. 68, 74. Claimant points out that because all of the medical testimony in this case was by deposition, this Court is in as good a position as the Workers’ Compensation Court to judge the weight to be given that testimony, citing Snyder v. San Francisco Feed & Grain (Mont. 1987), [230 Mont. 16,] 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. While that standard of review is correct, this Court will nevertheless uphold the lower court if there is substantial credible evidence to support its conclusion. We note that in Snyder, the conclusion of the Workers’ Compensation Court was found to be “in stark contrast with the evidence presented at trial,” and the case was reversed. 748 P.2d at 929.
In this case, the relevant findings made by the lower court regarding the medical evidence presented on claimant’s back disability and impairment are as follows:
“9. The claimant was working for Hurt Construction when he injured his right knee and low back on November 29,1983. He went to the emergency room and was treated by Dr. Adelman, who diagnosed the claimant as having acute low back syndrome.
“10. The claimant was next examined by Dr. Avery on March 21, 1984. He found that his back X-rays were normal and that the claimant’s back had full range of motion. He did not prescribe any treatment for the claimant’s back at that time.
“12. The claimant did not see another doctor until he suffered his second industrial injury when he fractured his right ankle while working for Boland Construction on August 13, 1984. The claimant did not mention a back problem to his treating physician Dr. Bloemendaal, nor did he state it as an injury on his claim for compensation. It was not mentioned in his claim for compensation. (Exhibit 3 at 2) or the Employer’s First Report.
“14. It is agreed by all medical experts that the claimant’s back reached maximum medical healing in November of 1985.
“15. Claimant’s treating physician, Dr. Bloemendaal, testified that he did not treat the claimant’s back and found no back impairment. Dr. Schutte testified that the claimant’s back last “went out” in 1984, but there was no back impairment in January, 1986. Dr. Hinde reported that there had been no progression in the back pain and that it was stable, so he did not address the issue.
“25. The claimant has no impairment of the back.”
Having reviewed the record, we conclude that these findings accurately reflect the medical testimony presented and are not clearly erroneous. Tenderholt v. Travel Lodge Intern. (1985), 218 Mont. 523, 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794. However, claimant contends that these findings are inadequate based upon additional medical evidence which he claims clearly establishes that his back bars him from laboring activities. In essence, claimant requests that this Court make additional findings regarding disability which are not confined to “impairment.” Claimant refers us to several statements made by the medical experts which he contends the lower court overlooked in reaching its conclusion.
First, claimant contends that although his treating physician, Dr. Bloemendaal, rendered a conclusory opinion of no back impairment, the fact that he prescribed drugs for back pain over a considerable period of time is evidence of back disability. The record indicates that it was the claimant who stated that he was given muscle relaxants by Dr. Bloemendaal. The doctor himself, however, testified that he did not recall ever prescribing anything to the claimant for his back. He further testified that he did not recall ever treating claimant’s back in any manner. Claimant’s assertion on this point is therefore not supported by the record.
Claimant also contends that Dr. Bloemendaal’s testimony establishes that claimant is unable to work in heavy construction because of his back condition. The record indicates that Dr. Bloemendaal did not attribute the upper back problems to either of the accidents involved in this action, nor did he testify that claimant could not perform heavy construction work because of his back. Given this lack of conclusive evidence, we hold that the Workers’ Compensation Court did not err in its refusal to find that claimant cannot work in construction because of his back.
Next, our attention is directed to the testimony of Dr. Hinde, a physiatrist who examined the claimant at the request of claimant’s counsel in November, 1985. Claimant argues that Dr. Hinde’s testimony establishes objective manifestations of pain and loss of motion in his back, thereby justifying a finding and conclusion of back disability. The doctor’s notes state that:
“I did document some mild limitation of internal and external rotation of the shoulders, and that these maneuvers did produce mild discomfort in the area of the mid-thoracic spine at the level of T6, T7. He also reported some tenderness to my palpation of the paraspinal structures in this location.”
Claimant told Dr. Hinde that his back problems stemmed from an injury which occurred in 1976 while lifting some heavy pipes. Dr. Hinde did not attribute the back condition to either of the accidents involved in this action. He testified that the scope of his examination was limited to “any disability which still related to injuries to his right knee and right ankle,” and he did not attempt to tie the claimant’s back problems to any specific injury. When considered with the whole of Dr. Hinde’s testimony, we conclude that his notes indicating mild discomfort and mild limitation of rotation do not mandate a finding of pain and loss of motion to claimant’s back, and that the lower court did not err in failing to make such a finding. Instead, the court’s finding there was no loss of motion reflects the testimony of Dr. Bloemendaal. When the Workers’ Compensation Court’s findings are based on conflicting evidence, this Court’s review is confined to determining whether there is substantial evidence on the whole record to support those findings. Wight v. Hughes Livestock Co., Inc. (Mont. 1981), [_Mont._,] 634 P.2d 1189, 1192, 38 St.Rep. 1632, 1635. Having reviewed the record, we hold that a finding there was no loss of motion is supported by the evidence.
Next, claimant asks that we reassess the testimony of Dr. Schutte, a specialist in sports trauma, who reviewed the medical records of Dr. Adelman, Dr. Avery, and Dr. Bloemendaal and rendered an opinion that claimant had no back impairment in January of 1986. Dr. Schutte testified that, “According to my records, the patient told me that his upper back continues to go out and that his back has been on and off in the interim.” Claimant contends that it was error for the Workers’ Compensation Court not to make a finding reflecting this testimony which would form a basis for a conclusion of back disability. Given the whole of Dr. Schutte’s testimony and the other medical evidence, we conclude that the lower court did not err in its findings. Dr. Schutte examined claimant’s back and found that it was within the normal range of flexion, extension, and lateral bending. He also took X-rays of his thoracic spine and found them to be normal. As with the three other medical experts, Dr. Schutte did not attribute claimant’s upper back problems to either of the industrial accidents involved in this action. We hold that the lower court did not err in its findings.
Finally, the claimant directs our attention to the deposition testimony of Dr. Pardis, a chiropractor who examined him in December of 1985 at the request of claimant’s counsel. Dr. Pardis was asked to evaluate the current condition of the upper back based upon his 1985 examination of claimant and additional medical records compiled in 1978 when he treated claimant’s back for a separate incident of injury. The claimant argues that, based on Dr. Pardis’ testimony, the lower court should have found that he was required to leave the construction field because of his back. While Dr. Pardis’ testimony establishes that heavy construction is not advisable given claimant’s back condition, the back condition was not connected to any specific injury, let alone the two industrial accidents involved here. When asked to make the connection between the back complaints and the injuries, Dr. Pardis responded that “there’s no way of tying it to a specific accident,” and stated that different conditions such as spinal cord lesions, tumors, fractures, or dislocations could also mimic the symptoms of which claimant complained. We conclude that the lower court did not err in refusing to find that claimant was forced to leave construction due to his 1983 or 1984 industrial accidents.
Having reviewed the overall record, we conclude that claimant is attempting to have this Court substitute its judgment for that of the lower court based on isolated passages of testimony when, in fact, the lower court’s findings are supported by the record and do not indicate that any testimony was overlooked or ignored. We conclude that the lower court’s conclusion is not in stark contrast to the evidence presented at trial, as was the case in Snyder. We hold that the lower court adequately considered both “impairment” and “disability” in reaching its conclusion, and that there are no grounds for modifying the findings or conclusions reached in this case.
II.
Did the lower court err in its determination of attorney fees?
In a subsequent hearing to determine reasonable attorney fees, the parties disputed whether fees should be paid on benefits received after claimant reached maximum medical healing, until the date he entered retraining pursuant to the court’s order finding him permanently and totally disabled. The period in question runs from November 26, 1985 to November of 1987, during which time claimant received temporary total disability benefits.
The Workers’ Compensation Court disallowed attorney fees for that period based on McKinley v. American Dental Mfg. Co. (Mont. 1988), [232 Mont. 92,] 754 P.2d 831, 45 St.Rep. 892. In that case, this Court stated that there are two conditions to an award of attorney fees under § 39-71-612, MCA (1983), which is the applicable statute in the present case: (1) the amount of compensation must be in controversy, and (2) the amount awarded must exceed the amount paid or tendered, citing Lasar v. Oftedal & Sons (1986), 222 Mont. 251, 721 P.2d 352, 43 St.Rep. 1938. Because claimant in this case was awarded the same amount of temporary total disability benefits as the State Fund was already paying, the Workers’ Compensation Court determined that he was not entitled to attorney fees from November 26, 1985 to November of 1987.
On appeal, claimant argues that this determination was in error because payment of benefits during that time (1) was a fact in controversy and were secured by the efforts of counsel, and (2) was not voluntary or unconditional because the State Fund fully expected to recoup any excess total disability payments had claimant been declared permanently partially disabled at the hearing. Claimant argues that these contentions form a basis for attorney fees not only under § 39-71-612, MCA (1983), but under § 39-71-611, MCA (1983), as well because of defendant’s denial of liability for payment of any benefits after November of 1985.
Section 39-71-611, MCA (1983), only applies “[i]n the event an insurer denies liability for a claim for compensation or terminates compensation benefits.” Here, the Workers’ Compensation Court found as an uncontested fact that “defendant accepted liability for claimant’s injury and has paid weekly temporary total disability benefits to date.” Therefore, § 39-71-611, MCA (1983), is inapplicable.
Secondly, claimant’s contention that payments were not voluntary or unconditional based on how the State Fund might have proceeded is pure conjecture and is not supported by the record. We hold that the Workers’ Compensation Court did not err in determining that claimant was not entitled to attorney fees for the period from November, 1985 to November, 1987.
III.
Did the lower court err in denying a lump sum award of attorney fees for future benefits?
The Workers’ Compensation Court determined that lump sum attorney fees would be awarded on the permanent partial disability payments which were to be granted after claimant had completed his retraining period. However, the court held that lump sum attorney fees would not be awarded based on the total disability benefits paid out to claimant during his retraining program. The court based its determination on a finding that:
“[I]t is questionable as to whether claimant will successfully complete the entire four years of his program. The Court draws this conclusion from the fact that claimant expressed little enthusiasm at the time of trial for the four-year computer science course. Therefore, claimant’s counsel is entitled to 33 percent of all past paid total disability benefits in a lump sum but, thereafter, claimant’s counsel is to receive his fee payment biweekly.”
This Court has held that a denial of lump sum attorney fees for future benefits which may never accrue is not an abuse of the lower court’s discretion. Swan v. Sletten Construction Co. (1986), 223 Mont. 477, 726 P.2d 1170, 1172, 43 St.Rep. 1926, 1929. Despite this authority, claimant argues that a lump sum award is not precluded if it is warranted by the facts. He argues that the following facts distinguish this case from Swan and render the lower court’s denial of lump sum attorney fees an abuse of discretion:
“(1) Claimant is in perfect health and is likely to live out his life expectancy;
“(3) The fee agreement (drafted prior to Swan) reflects the traditional expectations that lawyers will receive their contingent fees in a single lump sum;
“(4) Denying lump sum fees in a case like the present case will discourage attorneys from representing needy claimants and will thereby frustrate the public policy of compensating injured workers.”
Despite these contentions, we hold that the Workers’ Compensation Court’s denial of lump sum fees was not an abuse of discretion. The reason for the court’s denial was specifically stated in its order, and was based upon the court’s observance of the character and demeanor of the claimant. The court reasoned that if claimant discontinued his training course, the remainder of the temporary total benefits for which claimant now requests a lump sum of attorney fees might never accrue. Such a determination is not an abuse of discretion.
Affirmed.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and SHEEHY concur.
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MR. CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
L.R. Bretz appears pro per as the sole stockholder of Bratsky Farms, Inc. He appeals from an order of the District Court for the Thirteenth Judicial District, Yellowstone County, which denied his motion to vacate an October 31, 1988, order denying a motion to quash or vacate a writ of assistance. We affirm.
Bretz raises five issues relating to the validity of a foreclosure sale of property owned by Bratsky Farms, Inc.
Bratsky Farms, Inc., owned a ranch in Carbon County, Montana, on which Kansas City Life Insurance Company held a mortgage. The individuals named as defendants in this action held stock in Bratsky Farms, Inc., at the time this action was filed. On March 19, 1984, the District Court issued a Judgment and Decree of Foreclosure against the defendants. On the same date, the court issued an order of sale of the property. Also on that date, Bratsky Farms, Inc., filed for bankruptcy, resulting in an automatic stay of the foreclosure proceedings.
On February 26, 1985, after the stay was lifted by order of the bankruptcy court, the Carbon County Sheriff issued a certificate of sale to Kansas City Life Insurance Company. On February 20, 1986, the Farmers Home Administration (FmHA), a junior lienholder, redeemed the property by paying Kansas City Life Insurance Company the sum of $337,384.77. The Bratskys made application to lease the property from FmHA, but their application was rejected and their right to appeal that decision has been exhausted.
Bretz claims sole shareholder status in Bratsky Farms, Inc., begin ning January 15,1988. On June 1, 1988, FmHA filed a motion for an order for writ of assistance, asking for assistance to obtain immediate possession of the ranch, which Leo C. and Louise J. Bratsky still occupied. The writ was issued June 1, 1988. It commanded the sheriff of Carbon County to enter the property and eject the Bratskys.
Bretz filed a motion to quash the writ of assistance. The District Court denied the motion and Bretz appeals.
I.
Was the sheriffs sale void because it was based on improper statutory notice?
Bretz argues that the. publication notice of the February 26, 1985, sheriff’s sale did not comply with § 25-13-701, MCA. He also argues that due process was denied him because actual notice of the sale was never given to Bratsky Farms, Inc., or to its trustee in bankruptcy.
Section 25-13-701, MCA, requires that notice df sale on execution be given
“(c) in case of real property, by posting a similar notice, particularly describing the property, for 20 days in three public places in the county where the property is situated and also where the property is to be sold, which may be either at the courthouse or on the premises, and publishing a copy thereof once a week for the same period in some newspaper published in the county, if there be one, which notice shall be substantially as follows: . . .”
The affidavit of publication shows that notice was published on February 7, 14, and 21, 1985. The sheriff’s sale took place on February 26,1985. Bretz points out that only 19 days passed between the date of the first posted notice and the date of the sale.
The District Court cited Burton v. Kipp (1904), 30 Mont. 275, 76 P. 563. In that case, this Court held that the notice requirement in the antecedent to the above statute is directory only and that the failure to observe it does not avoid the sale as to a purchaser who is free from fault. Burton, 76 P. at 566. The Court also held that the remedy provided in what is now -§ 25-13-702, MCA, (that a sheriff selling without the required notice is liable for $500 to the aggrieved party) must be deemed exclusive.
Bretz cites several cases involving sheriff’s sales of personal property, but those cases do not apply here, as this was a sale of real property. He also cites Sink v. Squire (Mont. 1989), [236 Mont. 269,] 769 P.2d 706, 46 St.Rep. 352, which discussed service of process, not notice of a sheriff’s sale. We hold that Burton controls and that the provision of 19 days’ notice instead of 20 days’ notice does not invalidate the sheriffs sale.
II.
Is the FmHA notice of redemption deficient?
Bretz argues that the FmHA notice of redemption is deficient in that it does not set forth exactly what was owed on the judgment, what the purchase price was, what interest had been paid, what taxes had been paid, or what the purchaser’s lien debt was. He also points out that the notice erroneously gives the date of the foreclosure sale as April 24, 1984.
Section 25-13-806, MCA, sets forth the requirement for a notice of redemption:
“Notice of redemption, liens, and taxes and assessments paid. Written notice of redemption must be given to the sheriff and a duplicate filed with the county clerk, and if any taxes or assessments are paid by the redemptioner or if he has or acquired any liens other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the county clerk, and if such notice be not filed, the property may be redeemed without paying such tax, assessments, or lien.”
The statute does not require that the notice include any of the information Bretz lists. The notice of redemption given in this case provided a description of the real property, the date of the judgment and decree of foreclosure, and the amount of the judgment. It gave the total amount paid in redemption and was signed by an agent of FmHA as redemptioner. It is true that the date given in the notice as the date of the foreclosure sale is incorrect; it is the date of the originally-scheduled sale, before the bankruptcy. However, the statute does not require that the date of the foreclosure sale be stated in the notice. We conclude that the information provided was sufficient for the purpose of giving notice. We hold that the notice of redemption is not deficient.
III.
Is the sheriff’s deed void and invalid as a basis for the writ of assistance?
Bretz argues that a sheriff’s deed cannot be issued until 60 days after a notice of redemption has been given. The redemption by FmHA occurred in February 1986 and notice of redemption was dated June 17, 1986. The sheriff’s deed is dated July 7, 1986.
Section 25-13-810, MCA, provides:
“When purchaser entitled to conveyance. If no redemption be made within 1 year after the sale, the purchaser or his assignee is entitled to a conveyance; or if so redeemed, whenever 60 days have elapsed and no other redemption has been made and notice thereof given and the time for redemption has expired, the last redemptioner or his assignee is entitled to a sheriff’s deed; but in all cases, the judgment debtor shall have the entire period of 1 year from the date of the sale to redeem the property.”
The statute allows a sheriff’s deed to be issued when 1) 60 days have elapsed after the redemption, 2) no other redemption has been made, 3) notice of redemption has been given, and 4) the time for redemption has expired. The statute gives no time requirement related to the notice. We hold that the sheriff’s deed is valid as a basis for the writ of assistance.
IV.
Did the failure to provide Bratsky Farms, Inc., with actual notice of the setting of the judicial sale of the property deny due process?
Bretz cites Peterson v. Montana Bank of Bozeman, N.A. (1984), 212 Mont. 37, 687 P.2d 673, as authority that actual notice must be given to the mortgagor before a judicial sale may be held. However, the holding in Peterson was limited to the situation presented there. Factors included no court record of posting of notice of the sale, inadequacy of the purchase price at the sale, and a sale of realty treated as a sale of personal property. Peterson, 687 P.2d at 680.
Section 25-13-701, MCA, set forth above under Issue II, does not require personal notice to the mortgagor in sales on execution of judgment on real property. In the present case, the stockholders of Bratsky Farms, Inc., were represented by counsel and appeared in person at the proceedings leading up to the judgment against them, before the execution sale. We hold that the failure to provide Brat-sky Farms, Inc., with actual notice of the judicial sale did not deny due process of the law.
V.
Did the District Court err in issuing a Writ of Assistance because the record fails to show that FmHA was entitled to the writ?
Bretz argues that the following defects were present in the motion for an order of writ of assistance: the affidavit in support of the FmHA motion showed the wrong dates for the Sheriffs sale and the certificate of sale; no judgment was properly obtained; there was no proper notice of redemption, no proper publication of notice of sale, and no actual notice of sale; the redemption time was exceeded according to the dates given on the notice; and the sheriffs deed was issued too early.
Many of the defects claimed under this issue are discussed under the other issues in this appeal. It is true that the dates given in the affidavit as the dates of the sheriffs sale and the certificate of sale were incorrect. We admonish respondent’s counsel, who executed the affidavit in support of the motion for the writ, to exercise caution in insuring the accuracy of his filings.
For a writ of assistance to properly issue, there must be a judgment, a sale conducted according to the judgment, and a sheriffs deed to the property. Federal Land Bank of Spokane v. Heidema (Mont. 1986), 224 Mont. 64, 727 P.2d 1336, 43 St.Rep. 2020. The record shows that those elements were present here and met the statutory requirements. We hold that the District Court did not err in issuing the Writ of Assistance.
Affirmed.
MR. JUSTICES HARRISON, SHEEHY, HUNT and GULBRANDSON concur.
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On July 24,1995, it was the order of this Court that the defendant be sentenced as follows: Count I: Sexual Assault, a Felony, twenty (20) years at the Montana State Prison. Count II: Deviate Sexual Conduct, a Felony, ten (10) years at the Montana State Prison, said terms to run concurrently. If the defendant participates in sex offender treatment at Montana State Prison, he shall not be eligible for parole until completing Phases I and II of the Sexual Offender Treatment Program. If the defendant refuses treatment, or is found to be ineligible for treatment, the defendant shall not be considered eligible for parole until he completes at least one-third of his sentence. The Court further orders that upon his release on parole, the defendant shall comply with conditions as stated in the July 24,1995 judgment. The defendant shall receive credit for 13 days served in pre-sentence incarceration as of April 17, 1995. As required by Section 46-18-254, M.C.A., the defendant is hereby advised of his obligation to register as a sexual offender upon his release from custody. More specifically, un der Title 46, Chapter 23, Part 5, of the Montana Code Annotated, the defendant must: 1. Within fourteen (14) days of coming into a County in which he resides or is temporarily domiciled, register with the Chief of Police of the municipality or the Sheriff of the County if he resides in an area other than a municipality; 2. Within ten (10) days of changing residence, give written notification of his new address to the law enforcement agency with whom he last registered. Sections 46-23-504 and 46-23-505, M.C.A. The defendant is further advised that his obligation to register continues for a period of ten (10) years following his release from prison. Failure to comply with this requirement is punishable by a maximum fine of $250.00 and by a maximum term of imprisonment of ninety (90) days. Sections 46-23-506 and 46-23-507, M.C.A. A misdemeanor, failure to comply with this requirement could also result in the revocation of parole and/or probation.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to Twenty (20) years with ten (10) suspended to Montana State Prison for the offense of Count I: Sexual Assault, a Felony. The sentence for Count II: Deviate Sexual Conduct, a felony, shall remain the same. The sentences shall remain concurrent and all other conditions of the July 24,1995 judgment shall remain the same.
The reason for the amendment is because the defendant has no prior criminal record..
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Dale Michael Hanson for representing himself in this matter.
|
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4
] |
JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 The defendant, Donna June Enright, was charged by information in the District Court for the Tenth Judicial District in Judith Basin County with felony arson and deliberate homicide. The State filed a notice of intent to introduce evidence of other crimes, wrongs, or acts, and Enright filed a motion in limine to exclude the evidence of other crimes, wrongs, or acts. The District Court granted in part and denied in part the motion in limine. After a five-day jury trial, Enright was convicted of felony arson and deliberate homicide. Enright appeals from her conviction. We vacate the judgment of the District Court and remand this case to the District Court for further proceedings consistent with this opinion.
¶2 Enright presents two issues on appeal:
¶3 1. Did the District Court abuse its discretion when it denied in part Enright’s motion in limine and admitted evidence of the 1995 fire during her trial?
¶4 2. Was there sufficient evidence to support the jury’s verdict?
FACTUAL BACKGROUND
¶5 Faye Theis and Leonard Theis were married in 1961. The couple had no children together, but Faye had children from a previous marriage, including Margaret Distad, Donna June Enright, and Roy Link.
¶6 In 1988, Faye and Leonard purchased and moved into a trailer in Great Falls. Faye and Leonard eventually began to suffer from the effects of dementia and Alzheimer’s disease and, in approximately November 1993, Distad and Link acquired a power of attorney on Faye’s behalf, as did Enright and Link on Leonard’s behalf. Faye and Leonard entered a Great Falls nursing home in November 1993. Shortly thereafter, however, Leonard left the nursing home and returned to the trailer. Enright then became his guardian. Faye remained in the nursing home.
¶7 In February 1995, Link exercised his power of attorney to transfer Faye’s interest in the trailer to John Kozlowitz. Enright also transferred Leonard’s interest to Kozlowitz. A week after Kozlowitz became the owner of the trailer, the home burned and he was paid the insurance proceeds. The Great Falls Fire Department conducted an investigation of the fire, but did not determine the cause of the fire and found no evidence of foul play. The adjuster for the insurer of the trader saw nothing unusual about the circumstances of the fire and, after interviewing the fire department’s investigator, saw no need to conduct an independent investigation of the cause.
¶8 A few months later, Enright, Kozlowitz, Leonard, and Tom Martin, Enright’s son, formed the Sundown Inn, Inc. corporation for the purpose of purchasing and operating a bar and restaurant in Stanford. Enright, Leonard, and Kozlowitz all then moved from Great Falls to Stanford, where they purchased three trailer lots. Kozlowitz owned the two trailers that they kept on the lots, and he lived in one, while Enright and Leonard lived in the other trailer. Financial difficulties eventually led the group to abandon their operation of the Sundown Inn in April 1996. It appears that Enright and Leonard continued to live in Stanford, although they spent considerable time at Enright’s home in Great Falls.
¶9 In July 1996, Enright applied for and eventually received on behalf of Leonard a lump sum distribution of Leonard’s remaining pension benefits worth approximately $38,000. Between July and October, six different insurance policies were purchased to insure Leonard’s life; Enright and Kozlowitz paid some of the premiums. Testimony at trial suggested that Enright had actually prepared the applications and forged Leonard’s signature. The policies named Martin, Enright, and Link as beneficiaries. In September 1996, Enright and Leonard moved back to Great Falls, after which Enright and Link made frequent trips to Stanford where they removed furniture from the Stanford trailer and transferred it to their residence in Great Falls.
¶10 On October 16,1996, Enright and Leonard drove to Stanford from Great Falls in order to do their laundry at the Stanford trailer; they had no laundry facilities in Great Falls. After they had lunch at a cafe and went to a bar, Enright and Leonard were met by Link and his wife, who had come to Stanford to pick up one of Leonard’s chairs from the trailer. Link and his wife were at the bar only a short while before they went to get the chair, but Enright and Leonard remained at the bar until approximately 8:30 p.m. Over the course of the evening, Enright accrued approximately $1200 in gambling losses.
¶11 Enright and Leonard returned to the trailer. Enright did the laundry and Leonard watched television. Leonard was developing a cold, so in addition to turning up the furnace in the trailer and covering a number of the vents to channel the heat toward Leonard’s part of the trailer, Enright gave Leonard some cold medicine. Earlier in the day, Link had also allegedly given Leonard Tylenol with codeine. According to Enright, Leonard went to bed in his room of the trader at approximately 11:30 p.m. and she did not fall asleep until approximately 2:30 a.m.
¶ 12 Enright contends that she awoke shortly after she fell asleep to the sound of a smoke alarm. She opened her bedroom door, but was confronted with smoke from the hallway and shut the door. She then jumped out of her bedroom window to escape the trailer. Enright tried to enter the trailer through its back door, but was unable to do so when confronted by flames. She ran next door to Kozlowitz’s trailer and called 911 at 3:40 a.m. She and Kozlowitz then tried to enter the burning trailer through the front door, but retreated because it was too dark.
¶13 When officials arrived to fight the fire, Enright told them that Leonard was still inside the trailer in his bedroom; however, fire officials eventually found Leonard’s body partially covered by a blanket on the living room couch, where he had apparently been asleep. An autopsy revealed that Leonard died of carbon monoxide poisoning from smoke inhalation. It further revealed the presence of therapeutic doses of potentially sedative drugs, such as Benadryl and codeine.
¶ 14 A few days later, agent Joe Uribe from the Criminal Investigation Bureau of the Montana Department of Justice was contacted by the Judith Basin County Sheriff to investigate Leonard’s death. During a search of the trailer, Uribe and other officers seized an empty bottle of sedative drugs, and a battery-operated smoke alarm that they found in the hallway; they could not, however, find a battery for the alarm. Uribe interviewed Enright on November 6,1996. He testified that she told him, among other things, that she was unaware of any life insurance policies for Leonard. Uribe also testified that during the interview Enright made a number of other statements that appeared inconsistent with her earlier statements regarding the fire. The next day he searched her home in Great Falls, where he found the six life insurance policies, a number of bills issued to Enright, Kozlowitz, Link, Martin, and Leonard, and several items of property which Enright had told her insurer had been destroyed in the fire.
¶15 Six experts investigated the fire and testified at trial. They consistently testified that the fire started in a third bedroom that served as a storage room. Several witnesses testified that the cause of the fire was a collection of newspapers that was stored in a corner of the room. They all agreed that no accelerants were used to start the fire, and that there was no evidence of any deliberate act to start the fire. Based largely on their inability to attribute the fire to any accidental cause, several experts opined that the cause of the fire was incendiary, as opposed to natural or undetermined.
¶16 On November 13,1996, Enright was charged by information in the District Court for the Tenth Judicial District in Judith Basin County with felony arson and deliberate homicide; the information was later amended to include an alternate charge of deliberate homicide pursuant to the felony murder rule at § 45-5-102(l)(b), MCA. Link and Kozlowitz were also charged a few months later based on their alleged roles in the fire and Leonard’s death.
¶17 On April 14,1997, the State filed its notice of intent to introduce evidence of other crimes, wrongs, or acts by Enright. In order to prove motive, common scheme, and a nonaccidental cause of this fire, the State sought to introduce evidence that on seven previous occasions Enright had been involved in home or automobile fires for the purpose of making fraudulent insurance claims. Enright filed a motion in limine to exclude, among other things, all evidence of previous fires and insurance claims. After a hearing, the District Court granted in part and denied in part Enright’s motion. It held that all of the previous fires and the respective insurance claims were too remote in time and/or too dissimilar factually to be admitted, with the exception of the 1995 Great Falls trailer fire. The court held that evidence of the 1995 fire could be admitted.
¶18 A five-day jury trial was conducted from June 16-20,1997. During the trial, the District Court permitted the State’s witnesses to testify regarding the 1995 fire and the insurance claims made as a result of it. The jury convicted Enright of arson and deliberate homicide, and she was ordered by the District Court to serve a seventy-five-year sentence.
ISSUE 1
¶19 Did the District Court abuse its discretion when it denied in part Enright’s motion in limine and admitted evidence of the 1995 fire during her trial?
¶20 We review a district court’s evidentiary rulings to determine whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.
¶21 The State has alleged at trial and on appeal that due to gambling and business losses, Enright was in need of money, and that in order to obtain funds, she fraudulently insured Leonard’s fife, sedated him, and then intentionally burned the trailer with him in it to collect life insurance proceeds from his death. In an effort to prove that the trailer fire was intentionally started and that Enright’s actions in that regard were part of a common scheme, the State sought to introduce evidence of previous fires and of the insurance proceeds that were paid to Enright or other individuals close to her after those fires. Throughout its attempts to introduce evidence surrounding the previous fires, the State referred to the fires as other crimes, wrongs, or acts evidence, and asserted that the evidence was admissible pursuant to the modified Just rule. See generally State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.
¶22 Enright contends that because there was no evidence which connected her to the 1995 fire, it should have been excluded pursuant to our decisions in State v. Johnson (1991), 250 Mont. 496, 821 P.2d 1039, and Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 721 P.2d 303.
¶23 The State contends that pursuant to our decision in State v. Paulson (1991), 250 Mont. 32,817 P.2d 1137, there is no threshold requirement regarding the quantum of proof necessary before evidence of other crimes, wrongs, or acts is admissible, and that the only appropriate analysis is pursuant to Rule 404(b), M.R.Evid., and Matt, 249 Mont. 136, 814 P.2d 52.
¶24 We conclude, however, that the four-part analysis for the admissibility of other crimes, wrongs, or acts assumes that there is evidence of a prior crime, wrong, or act, and without such evidence, there is nothing to analyze. Paulson is not on point because in that case, other drug dealers testified to the defendant’s importation and distribution of drugs prior to the distribution for which he was being tried. The question in Paulson was not whether there was evidence of a prior criminal act by the defendant, but what quantum of proof would be required before that evidence could be admitted.
¶25 The facts in Johnson and Britton are more analogous to the facts in this case. In Britton, Bill Britton filed a claim with his insurer, Farmers Insurance Group, after fire damaged one of the buildings on his property. Farmers denied coverage, and in response to Britton’s claim for bad faith, alleged that he had intentionally caused the fire. From a verdict in Britton’s favor, Farmers appealed and alleged that the district court erred when it refused evidence that Britton had recovered insurance proceeds from three previous fires which occurred on his property. The evidence was offered by Farmers to demonstrate a common scheme or motive. Without the need for any “other acts” analysis, we affirmed the district court’s exclusion of the prior fires with the following explanation:
In like manner, we find no error in the denial by the District Court of evidence or testimony relating to prior fires on which Britton may have received insurance proceeds.... The proffered evidence did not meet the test of relevancy, in that it did not make probable that Britton had committed arson either from the viewpoint of motive, intent or deed itself. Rhodes v. Weigand (1965), 145 Mont. 542, 402 P.2d 588. Unless evidence naturally and logically tends to establish a fact in issue, it is not admissible. Brion v. Brown (1959), 135 Mont. 356, 340 P.2d 539. See McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 666 P.2d 742.
Britton, 221 Mont. at 86, 721 P.2d at 315.
¶26 Although not discussed in our rationale for excluding the prior fires, it is apparent from our discussion of those fires that they were properly excluded because of a failure to offer any evidence that they were caused by Britton’s wrongdoing.
¶27 Johnson, decided subsequent to Paulson, involved facts much more similar to those in this case, and found no need to apply the four-part analysis from Matt to nearly identical circumstances. In Johnson, the defendants were charged with arson and, in the alternative, criminal mischief based on a fire that destroyed a mobile home. Pursuant to notice of an intent to rely on other crimes evidence, the State was allowed to offer evidence of six prior fires which had occurred on premises owned or occupied by one or both of the defendants. Following a three-day jury trial, the district court directed a verdict in favor of the defendants, dismissing the arson charges, but they were convicted by the jury of criminal mischief. Based on the dis trict court’s admission of the prior fires, however, this Court reversed those convictions on appeal for the following reasons relevant to the issue in this case:
We hold that the admittance of these prior fires unfairly prejudiced the Defendants, as no evidence exists that links Defendants with intentionally causing these prior fires. Therefore, these prior fires cannot be considered other crimes, wrongs or acts under Montana Rules of Evidence 403 and 404(b). We reverse and remand this case; in the event of a new trial, the District Court is to omit these prior fires as other crimes, wrongs or acts evidence.
Johnson, 250 Mont. at 499, 821 P.2d at 1041.
¶28 Likewise, in this case, we conclude that an analysis pursuant to Rule 404(b), M.R.Evid., of “other crimes, wrongs, or acts” evidence assumes that there is evidence of a prior wrongful act. In this case, there was none. Scott Enloe, the claims adjuster for the insurer of the trailer at the time of the 1995 fire, discussed the fire with the investigator for the Great Falls Fire Department. He learned from that investigator that there was no evidence of foul play, and from his investigation found nothing unusual about the fire. No additional evidence was offered at this trial to suggest that Enright was connected to the cause of the 1995 fire. Therefore, there was insufficient foundation to offer evidence of the prior fire as a prior crime, wrongful act, or act of Enright, and there is no basis for analyzing the simple occurrence of a prior fire pursuant to the rule related to evidence of prior acts.
¶29 The State contends on appeal that Johnson and Britton do not control, since it contends that in neither of those cases was there evidence that the parties intentionally caused the previous fires. Implicit in its argument is that such evidence exists in this case. However, it is uncontroverted that the local authorities and the insurer made no allegations that the previous fire was intentionally caused, and no new evidence to that effect was offered.
¶30 The State would have the jury infer that something criminal was done in 1995 based on the facts in this case, and then use that inference to bootstrap guilt of the crimes charged. Such circular reasoning has little probative value and creates a high risk that a jury would convict based on unsupported assumptions.
¶31 In other words, there is no evidence of an admissible common scheme. Evidence of the 1995 fire was, therefore, not relevant to the issue of whether Enright committed the acts with which she was charged, and it should have been excluded. As the District Court stated in its order regarding evidence which it did exclude prior to trial, “[t]he State’s burden is to prove the specific crimes charged herein with proper evidence related to this incident.” (Emphasis added.) Accordingly, we hold that the District Court abused its discretion when it allowed evidence of the 1995 fire.
ISSUE 2
¶32 Was there sufficient evidence to support the jury’s verdict?
¶33 We review the sufficiency of the evidence to support a jury verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See State v. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670, 675; see also State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562.
¶34 The State’s information charged Enright with arson pursuant to § 45-6-103(1), MCA, and with deliberate homicide pursuant to § 45-5-102(l)(a), MCA. The statutes require the State to prove beyond a reasonable doubt that Enright purposely or knowingly committed the respective acts of destroying the trailer by fire and causing Leonard’s death. Enright contends that the State failed to prove that she acted purposely or knowingly, and that the expert testimony failed to establish an intentional cause of the fire.
¶35 However, circumstantial evidence can be sufficient to prove criminal intent, as well as to sustain a conviction. See State v. Bromgard (1993), 261 Mont. 291, 295, 862 P.2d 1140, 1142; State v. Brogan (1993), 261 Mont. 79, 89, 862 P.2d 19, 25-26; State v. Buckingham (1989), 240 Mont. 252, 260, 783 P.2d 1331, 1337; see also § 45-2-103(3), MCA (“The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.”). We conclude that in this case, after excluding evidence of the 1995 fire, there was still sufficient evidence to support submission of the State’s charges to the jury. Enright purchased six insurance policies which insured Leonard’s life during the three months prior to his death, and then denied their existence; Enright and her family and friends moved furniture out of the trailer prior to the fire and then claimed its loss to the insurance company; Leonard’s body revealed the presence of multiple sedative drugs; a battery could not be found for the smoke alarm located nearest Enright’s bedroom, and the only other smoke alarm in the trailer was located inside a closed kitchen cabinet at the completely opposite end of the trailer; there were no signs of the clean laundry which Enright claimed to have left in the living room; and the fire officials testified that despite Enright’s supposedly multiple encounters with and in the burning trailer, they did not smell smoke on her. Finally, there was expert opinion evidence that the fire was intentionally started.
¶36 While we recognize that Enright’s version of the events suggests, at least in part, a benign explanation for this evidence, the role of fact-finding belongs to the jury. ‘When circumstantial evidence is susceptible of two interpretations, one supporting guilt and the other supporting innocence, the trier of fact determines which is most reasonable.” Bromgard, 261 Mont. at 295, 862 P.2d at 1142. Accordingly, we conclude that the evidence in this case was sufficient to establish the essential elements of the alleged crimes beyond a reasonable doubt.
¶37 Therefore, Enright is not entitled to have the charges against her dismissed. However, based on our conclusion that evidence of the 1995 fire was erroneously admitted, and further conclusion that that evidence was prejudicial to the defendant, we vacate the judgment of the District Court and remand to the District Court for a new trial.
JUSTICES NELSON, HUNT, REGNIER and LEAPHART concur.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Plaintiff Deanna S. Quamme appeals an order of the District Court for the Fourth Judicial District, Missoula County, dismissing her claim for failing to meet the requirements of Rule 41(e), M.R.Civ.P. We reverse.
¶2 The following issues are raised on appeal:
¶3 1. Does this Court have jurisdiction over the appeal in this case when Quamme filed the notice of appeal prior to the disposition of her motion to amend the court’s judgment?
¶4 2. Did the District Court err when it dismissed Quamme’s claims for improper service of summons?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On January 8,1996, Quamme filed a complaint alleging that she sustained injuries when her automobile was rear-ended by a vehicle owned and driven by Defendant Diane Jodsaas. On the same date that the complaint was filed, the clerk of court issued a summons. This original summons was never served on Jodsaas.
¶6 Subsequently, on July 16,1996, new counsel was substituted for Quamme’s original counsel, who was leaving private practice. Her second attorney similarly did not serve the summons on Jodsaas. On July 10,1997, Quamme hired a third attorney, who was substituted as Quamme’s counsel of record. On July 15, 1997, this attorney returned the original summons to the court without service and requested the clerk to issue a new summons reflecting Quamme’s change of counsel. On July 15,1997, the clerk issued a second summons reflecting this change. In all other respects, the second summons was identical to the original summons. On July 22, 1997, Quamme mailed the second summons, along with the complaint, to Jodsaas and requested that she acknowledge service.
¶7 Jodsaas moved to dismiss the complaint based on her contention that Quamme’s summons was not served in compliance with Rule 41(e), M.R.Civ.P. Relying on this Court’s decision in Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, the District Court granted the motion and the complaint was dismissed. Eight days later, this Court decided Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d 1181. Thereafter, on December 1, 1997, Quamme filed a motion pursuant to Rules 59 and 60, M.R.Civ.P., to amend or set aside the order granting Jodsaas’s motion to dismiss based upon Yarborough. Her motion was deemed denied, however, when the District Court did not rule on it within the 60-day time period prescribed by the rules. The 60-day period expired on January 30,1998. Quamme filed her notice of appeal on January 20,1998.
ISSUE ONE
¶8 Does this Court have jurisdiction over the appeal in this case when Quamme filed the notice of appeal prior to the disposition of her motion to amend the court’s judgment?
¶9 According to Rule 59, M.R.Civ.P., a motion to alter or amend a judgment is deemed denied if the court has failed to rule on the motion within 60 days. In this case, Quamme filed her notice of appeal on January 20,1998, but the 60-day period from the time she filed her motion to amend did not expire until January 30, 1998. Jodsaas points to Rule 5(a)(4), M.R.App.P., which stated that a notice of appeal filed before the disposition of a Rule 59 motion “shall have no effect.” Because Quamme filed her notice of appeal ten days prior to the expiration of the 60-day period, she contends that Quamme’s notice of appeal was premature and has no effect.
¶10 In support of her motion, Jodsaas incorrectly relies upon the old version of Rule 5(a)(4). That rule was amended effective October 1, 1997, and the language providing that such a motion “shall have no effect” was deleted. The rule now provides that “[a] notice of appeal filed before the disposition of [a motion under Rule 59], whether by entry of an order or deemed denial, shall be treated as filed after such order or denial and on the day thereof.” Rule 5(a)(4), M.R.App.P. (emphasis added). This Court thus treats Quamme’s motion as filed after the date on which her motion to alter the judgment was deemed denied. We hold that we have jurisdiction over this appeal.
ISSUE TWO
¶11 Did the District Court err when it dismissed Quamme’s claims for improper service of summons?
¶12 We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Schmitz v. Vasquez 1998 MT 314, ¶ 12, [292 Mont. 164, ¶ 12 ], 970 P.2d 1039, ¶ 12 (citation omitted).
¶ 13 The District Court dismissed Quamme’s complaint for her failure to comply with Rule 41(e), M.R.Civ.P, which provides in pertinent part:
Failure to serve summons. No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years.
¶14 Quamme contends that Rule 41(e), M.R.Ciy.P., does not require the dismissal of her suit for failing to serve the original summons issued within one year, because after the first year she hired new counsel and Rule 4C(2), M.R.Civ.R, requires that the summons contain the name and address of her attorney. She argues that service of the original summons would have improperly identified an attorney who no longer represents her and would have thus violated Rule 4C(2). Quamme also cites our decision in Yarborough, and argues that serving the second summons complies with the substance and purpose of Rule 41(e), because except for the change of the attorney’s name and address, it was identical to the summons issued within the first year.
¶15 Jodsaas counters that Quamme failed to comply with Rule 41(e), because a summons issued within the first year was not served on her. She points to' this Court’s decisions in Haugen, Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 951 P.2d 1326, and Eddleman v. Aetna Life Ins. Co., 1998 MT 52, 288 Mont. 50, 955 P.2d 646, and argues that under the explicit terms of Rule 41(e), a case must be dismissed when the plaintiff fails to serve a summons that was issued within the first year after the commencement of the action.
¶16 We conclude that Yarborough and our a recent decision in Schmitz controls the disposition of this case, and that the cases relied upon by Jodsaas are distinguishable. In Yarborough, the plaintiff lost the original summons that had been issued the first year. After the first year, the clerk of court issued a duplicate summons, which was served on the defendant within three years from the commencement of the action. The defendant moved for dismissal based upon Rule 41(e). This Court held that by serving a summons within three years that was in substance identical to the original summons issued within the first year, the plaintiff complied with Rule 41(e). We declared that “to require more would exalt form over substance.” Yarborough, 285 Mont. at 497, 948 P.2d at 1183.
¶17 Jodsaas argues that Yarborough is inapplicable to this case for two reasons. First, she contends that unlike Yarborough, the second summons in this case is not identical to the first, because it contains the name of a different attorney. We disagree that this difference is substantive. The only difference is that the upper left hand corner of the piece of paper identifies a different attorney and attorney address. The contents of the summons, however, are identical. The purpose of the summons is to notify the defendant that a civil action has been filed against her and that she has twenty days in which to make an appearance. In this case, both summons named Jodsaas as a defendant and both notified her to make an appearance within twenty days. We conclude that the two summons are substantively identical.
¶18 Jodsaas next contends that Yarborough is distinguishable because the summons in Yarborough was lost and it was thus impossible for the plaintiff to serve it, while in this case, the summons was not lost and Quamme’s first attorney could have served the summons prior to withdrawing, or the second attorney, who was substituted as counsel within the first year, could have corrected the summons and then served the summons, all within the first year.
¶19 We reject Jodsaas’ contention that such a distinction warrants a different result in this case. The salient feature ofYarborough was not simply that the first summons was lost, but also that the second summons was in substance identical to the first. We have already concluded that the second summons in this case was in substance identical to the first one. Additionally, while Jodsaas complains about the delay in service beyond the first year, this delay is authorized by the statute. In this case, Quamme did not hire her third attorney until after the first year had passed. Service of the original summons that time would not have complied with Rule 4C, M.R.Civ.P., which requires the summons to contain the name and address of the plaintiff’s attorney. Quamme therefore requested the clerk to reissue a second summons identifying her current counsel for service on Jodsaas.
¶20 Jodsaas cannot demonstrate prejudice from the fact that she received the second summons, rather than the original. In both cases, Jodsaas received notice that she was a party to the action. In fact, rather than being prejudiced by the second summons, the second summons assisted her by accurately identifying Quamme’s current counsel. In Yarborough, we stated that “[w]hile literal consideration of our Rules of Procedure is a necessary starting point, common sense is also necessary to people’s confidence in the law.” Yarborough, 285 Mont. at 499, 948 P.2d at 1184. In this case, common sense dictated that Quamme serve a second summons correctly identifying her current counsel.
¶21 More recently, in Schmitz, this Court affirmed Yarborough on facts similar to the facts in this case. In Schmitz, more than a year after the commencement of the action, the plaintiffs filed an amended complaint and the clerk of court issued an “amended summons” for service on the defendant. The amended summons was identical in substance to the original summons, except that in conformance with the amended complaint, the name of one of the defendants was removed from the caption, and the summons was retitled “amended” summons. Schmitz, ¶ 8. The amended summons was served on the defendant and proof of service was filed with the district court less than three years from the date on which the original complaint was filed. The defendant moved for dismissal, contending that the plaintiff did not comply with Rule 41(e), because the original summons was not served on him within the three-year period.
¶22 Just as in Yarborough, this Court declined to elevate form over substance and we concluded that the plaintiff had complied with the substance and purpose of Rule 41(e). We held that the defendant Vasquez was not prejudiced, because the amended summons adequately notified him that he was a defendant in a civil action and that he had twenty days to make an appearance. Indeed, the amendment actually assisted him ascertaining the true nature of the action against him by notifying him that the plaintiff could not proceed against the entity who had previously been named as a defendant. There was no change in the summons which was relevant to Vasquez. Schmitz, ¶¶ 20, 21, 27.
¶23 The holdings in the cases relied upon by Jodsaas are inapplicable to the issues raised in this case. In Haugen, the clerk of court issued an amended summons at the plaintiff’s request, just prior to the expiration of the three-year period. The plaintiffs failed to serve one of the defendants and failed to file proof of service of any of the three summons prior to the expiration of the three-year period. Haugen, 279 Mont. at 4, 926 P.2d at 1366. We did not hold that the amended summons were invalid. Rather, we held that the failure to file proof of service of summons with the clerk of court within three years of the commencement of the action violated Rule 41(e). Haugen, 279 Mont. at 9, 926 P.2d at 1369.
¶24 In this case, the clerk of court issued a second summons to Quamme after the first year, but prior to the expiration of the three-year period. However, whether Quamme was able to serve and file proof of the second summons within the three-year period is not at issue in this case as it was in Haugen.
¶25 In Rocky Mountain Ent., plaintiffs served defendants with a summons that had been issued more than one year after the filing of their complaint. When the defendants filed a motion to dismiss based upon Rule 41(e), the plaintiffs served the defendants with the original summons that had been issued within the first year. On appeal, this Court held that the issuance of the subsequent summons did not nullify the original summons. Hence, the plaintiffs served upon the defendants the summons issued during the first year within the three-year period in accordance with Rule 41(e). Rocky Mountain Ent., 286 Mont. at 305, 951 P.2d at 1341.
¶26 In Rocky Mountain Ent., we did not address whether service of the subsequent summons alone would have complied with Rule 41(e). Thus, our statement that the defendants’ motion to dismiss “had merit” at the time it was filed constitutes dicta only. Rocky Mountain Ent., 286 Mont. at 305, 951 P.2d at 1340. Perhaps more importantly, unlike this case, it is not clear whether the subsequent summons was identical in substance to the first summons or why it was even issued at all. Finally, it appears that unlike this case, the original summons in Rocky Mountain Ent. properly identified the plaintiffs’ attorneys as required by Rule 4C(2), M.R.Civ.P, while in this case it did not.
¶27 The holding of the last case cited by Jodsaas, Eddleman, similarly is not applicable to the issues raised in this case. In that case, the Court held that the plaintiffs’ case must be dismissed because they failed to file the return of service of process with the clerk of court within three years after the commencement of the action Eddleman, ¶ 10. Again, whether Quamme filed the return of service of process within the three-year period is not at issue here.
¶28 Barring Quamme from the courthouse solely because she failed to serve the original summons, which identified an attorney who no longer represents her, does nothing to advance the goals and policies of the Rules of Civil Procedure, when common sense dictated that she simply serve another substantively identical summons that correctly informed Jodsaas of her current attorney as required by Rule 4C(2), M.R.Civ.P. Jodsaas is unable to show any prejudice, because the second summons adequately notified her that she was a defendant in a civil action and that she had twenty days in which to make an appearance. As in Yarborough and in Schmitz, we decline to elevate form over substance. Therefore, we hold that the District Court erred when it dismissed Quamme’s claims for improper service of summons. We reverse the order of the District Court dismissing the complaint, and we remand for further proceedings.
¶29 Reversed.
CHIEF JUSTiCE TURNAGE, JUSTICES REGNIER, LEAPHART and TRIEWEILER concur.
|
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On September 19,1997, it was ordered, adjudged and decreed that Chris Harshberger be imprisoned in the Montana State Prison for four (4) years. The defendant shall be responsible for all costs of the victim’s counseling and related services necessitated by this offense as determined by the defendant’s supervising officer as well as the cost of his court ordered evaluation. The defendant shall successfully complete Phase I and Phase II of the Sex Offender Treatment program at the Montana State Prison and complete all follow-up treatment as recommended before becoming eligible for parole. If the Department of Corrections places the defendant on any future parole or probation, the defendant shall comply with the terms of probation as stated in the September 19, 1997 judgment. The defendant shall be given credit for eight (8) days served in jail prior to sentencing.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by attorney Greg Jackson. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to ten (10) years, all suspended, to Montana State Prison. Conditions with this amendment are: (1) Defendant must enter and complete all phases of the Sexual Offender Treatment Program on an out-patient basis. (2) Defendant will register as a sex offender pursuant to Montana law. (3) Defendant must provide a DNA sample. (4) Defendant must have no association with any female under the age of 18. All other conditions of the September 19, 1997 decision will remain the same.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
The reasons for the amendment are because of the pretrial agreement entered into and the defendant’s past juvenile and adult record. The Sentence Review Board believes that probation for a longer period of time is necessary for the treatment of the defendant. The Board doesn’t believe defendant could complete the programs in the time frame given by Judge Cox. The Board feels that the defendant can be adequately treated in a community based setting and prison is not necessary at this time.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank attorney Greg Jackson for representing Chris Harshberger in this matter.
|
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] |
On July 30,1997, the Defendant was committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), MCA, to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of ten (10) years. Defendant received credit for 1 day already served in the Yellowstone County Detention Facility.
On August 14,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Roberta Drew. The state was represented by Dennis Paxinos.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 14th day of August, 1998.
DATED this 1st day of September, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to seven (7) years in the Montana State Prison, with all seven (7) years suspended. Conditions of the suspended sentence are listed on page 11 of the Defendant’s Pre-Sentence Investigation Report.
The reasons for the amended sentence are based upon the recommendations of the Yellowstone County Attorney, the fact that the Defendant had no prior criminal record, and the fact that the sentencing judge did not consider criteria for a non-violent offender, as stated in 46-18-225, MCA. This offender appears to be a nonviolent offender pursuant to 46-18-104, MCA. Judge Barz did not adequately assess the Defendant’s prospects for rehabilitation.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Robert Drew for representing Caleb Grooms in this matter, and Dennis Paxinos for representing the State.
|
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] |
On September 21, 1998, the Defendant was sentenced to the following: Count I: ten (10) years in the Montana State Prison; Count II, Count XI, and Count XII: six (6) months, each count, to the Park County Jail, to run concurrently with the sentence imposed in Count I.
On November 6, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Kevin Brown. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 6th day of November, 1998.
DATED this 2nd day of December, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Member, Hon. Jeffrey H. Langton, Member, Hon. Richard G. Phillips and Alt. Member, Robert A. Boyd.
The Sentence Review Board wishes to thank Kevin Brown for representing Mr. Douglas in this matter.
|
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] |
On March 12,1998, the Defendant was sentenced to five (5) years to the Department of Corrections, with the recommendation that the Defendant be screened for the Boot Camp Program. The Defendant is also required to pay restitution in the amount of $8,707.88, less the amounts recovered by the insurance company.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Trudy Miller. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to five (5) years to the Department of Corrections, with three (3) years suspended. As a condition of probation, the Sentence Review Division shall adopt the recommendation of the Pre-Sentence Investigation of Marisa Gibbins and add to number 12, that the Defendant will serve 100 hours of community service, if he is not employed full-time or is not a full-time student. The Division wül also add number 14, that the Defendant will make every reasonable effort to enroll in and complete the vo-tech program that he has been accepted into by the University of Montana.
The reasons for the amendment are: the Defendant’s age, to accelerate payment of restitution to the victims, the Defendant is a non-violent offender, the fact that the Defendant failed the Boot Camp Program, and the Division does not feel that a prison environment is necessary.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Trudy Miller for representing Mr. Richardson in this matter.
|
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On June 4,1998, the Defendant was committed to the Department of Corrections for five (5) years for placement in an appropriate facility or program; Defendant is further sentenced to a term of seven (7) years in the Montana State Prison, with all of said term suspended. The prison term shall run consecutive to the commitment to the Department of Corrections.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Carl White. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be continued until the February, 1999, meeting. In the interim, the Sentence Review Division orders the Department of Corrections to immediately transfer Mr. Drube to the Montana State Hospital in Warm Springs for a complete psychiatric/sexual evaluation and to re port the results of that evaluation back to this Board by December 31, 1998.
Done in open Court this 5th day of November, 1998.
DATED this 30th day of November, 1998.
The reason for the continuance in this matter is that it does not appear from the records that a sexual evaluation was ever done as mandated under 46-18-111, MCA. The evaluation must also include a recommendation as to treatment of the offender in the least restrictive environment.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips
The Sentence Review Board wishes to thank Carl White for representing Mr. Drube in this matter.
|
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] |
On April 27,1998, the Defendant was sentenced to five (5) years in the Montana State Prison. The Court recommended that as a condition of any parole or early release that the Defendant shall pay public defender fees in the amount of Four Hundred Fifty Dollars ($450.00); community service program fees in the amount of Eighty-Five Dollars ($85.00); technology fee in the amount of Five Dollars ($5.00); surcharge in the amount of Twenty Dollars ($20.00); cost of prosecu tion in the amount of One Hundred Dollars ($100.00); and probationary supervision fees in the amount of One Hundred Twenty Dollars ($120.00) per year.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Mark McLaverty. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank attorney Mark McLaverty for representing Timothy Dratz in this matter.
|
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] |
On June 26, 1998, the Defendant was sentenced to twenty (20) years in the Montana State Prison on each of the Counts I - VII, with five (5) of those years suspended. The sentences imposed in Counts II - VII shall run concurrent with Count I.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and advised of his right to be represented by counsel. The Defendant proceeded Pro Se. The state was represented by Gary Ryder.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Mr. Ryder for representing the State in this matter.
|
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On January 24,1996, it was the judgment of the court that Richard Arnold Savaria be and is hereby committed to the Department of Corrections for a term of ten (10) years on Count I for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the Court that Richard Arnold Savaria be and is hereby sentenced to a term of ten (10) years each on Count II through VII in the Montana State Prison in Deer Lodge, Montana, that, however, the sentence on Count II through VII is hereby suspended on terms and conditions as listed in the January 24,1996judgment. All of the sentences shall run consecutively with each other. Defendant shall receive credit for time served at Missoula County Jail from June 16,1994, through July 1, 1994; and from November 2, 1994, through November 9, 1994; and from January 10,1996, through January 24,1996, in the amount of thirty-nine (39) days. The defendant shall receive credit for time served in the Montana State Prison. It is further ordered that as restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims. Defendant shall be designated a non-dangerous offender for the purposes of parole. On September 17,1997, it was ordered that the Court amends the judgment in this cause to delete condition number 1 on page 3 that “The Court shall retain jurisdiction and the right to impose additional conditions.”
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Richard Arnold Savaria for representing himself in this matter.
|
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] |
On October 23,1997, it was the order of this court that the sentence of the defendant is revoked and the defendant is sentenced to the Montana State Prison for a period of nine (9) years. The court encourages the defendant to participate in chemical dependency treatment available at the Montana State Prison and further orders that the defendant is not entitled to credit for time served while on probation because he was consuming drugs while on probation and this is the defendant’s second violation. Neither is the defendant entitled to credit for time served while in the Utah prison system. However, the defendant is entitled to credit for time served since his release from prison and on this warrant which totals 22 days.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
|
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] |
On March 26,1998, the Defendant was sentenced to one hundred (100) years in the Montana State Prison on Count II; and to forty (40) years in the Montana State Prison on Count III. Count III is to be served consecutively with the sentence imposed in Count II. The Defendant is ineligible for parole and participation in any type of release program and may not be given any type of good time allowance for good behavior. Credit is given for 253 days served in the Flathead County Detention Center.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Julianne Hinchey. The state was represented by Ed Corrigan.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Julianne Hinchey and Ed Corrigan for representing Mr. Lanham and the State in this matter.
|
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On February 9,1998, the Defendant was committed to the Department of Corrections as follows: Count I: Six (6) months without eligibility for parole, which may be served in the Missoula County Jail. After the Defendant completes the six (6) month sentence, the Defendant shall be placed on supervised release for a period of four (4) years and shall abide by all of the terms and conditions. Since the Defendant has already served two hundred forty-eight (248) days in the Missoula County Jail, he has completed the custodial portion of this sentence. Count II: Ten (10) years in the Montana State Prison, with five (5) years suspended. The sentences shall run concurrently with each other and concurrently with the sentence imposed in Cause No. 10789. It is the recommendation of the Court that the Defendant be considered for placement in the intensive supervision program.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Larry Mansch. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank attorney Larry Mansch for representing Larry Pettijohn in this matter.
|
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JUSTICE NELSON
delivered the Opinion of the Court.
¶ 1 Donna Glantz (Glantz) appeals a Decree of the District Court for the Eleventh Judicial District, Flathead County, wherein the court determined that James G. and Cheree G. Boyes (the Boyeses) are the owners in fee simple of a certain parcel of real property located in Flathead County. We affirm.
¶2 Glantz raises the following issues on appeal:
¶3 1. Whether the information set forth in a Tax Deed must be identical to the information set forth in the Notice That A Tax Deed May Be Issued.
¶4 2. Whether multiple notices may be placed in the same envelope for mailing.
¶5 3. Whether the Proof Of Notice For Issuance Of Tax Deed in this case complied with the statutory requirements.
¶6 4. Whether a description of property in a Notice That A Tax Deed May Be Issued must include the full legal description.
Factual and Procedural Background
¶7 In November 1989, Glantz purchased seven parcels of real property located in Granite View Subdivision in Flathead County. The deed transferring ownership of all seven parcels to Glantz was recorded with the Flathead County Clerk and Recorder’s Office on December 1,1989.
¶8 Over the next four years, Glantz failed to pay any taxes on the property. Consequently, on July 15,1994, the Flathead County Clerk and Recorder, Susan Haverfield, notified Glantz that if the properties were not redeemed, a Tax Deed would be issued to Flathead County. Haverfield sent Glantz a separate Notice That A Tax Deed May Be Issued for each of the seven parcels. These notices were placed in one envelope and sent to Glantz by certified mail, return receipt requested. The tax assessor number for each parcel was written on the receipt for certified mail as each notice was placed in the envelope. Glantz signed for the envelope on July 18,1994, as evidenced by the receipt for certified mail.
¶9 On August 16,1994, Haverfield executed a Proof Of Notice For Issuance Of Tax Deed, which was recorded that same day. Nevertheless, Glantz failed to redeem any of the property including the parcel at issue in this case, the park in Granite View Subdivision (the park). As a result, the Flathead County Treasurer, Idella Smithers, issued a Tax Deed on December 22,1994, conveying the park to Flathead Comity. This Tax Deed was filed with the County Clerk and Recorder on December 28,1994.
¶10 In consideration of payment of the taxes, interest, penalties, and costs due on the park, the Chairman of the Board of County Commissioners of Flathead County signed a Grant Deed on April 25,1995, conveying the park to the Boyeses. The Grant Deed was recorded the same day.
¶11 On October 2,1996, the Boyeses filed a complaint seeking to quiet title to the park. Glantz, along with several other individuals who may have had some interest in the park, were named as defendants in the complaint. While Glantz answered the complaint, a default judgment was entered against all of the other defendants for failure to reply or otherwise respond to the complaint.
¶12 Glantz filed a complaint against the Boyeses and Flathead County on December 12, 1996, alleging defects in the tax sale proceedings. Boyeses subsequently filed a motion to consolidate the two lawsuits, and, on March 27,1997, the District Court granted the motion to consolidate.
¶13 On March 31,1997, the Boyeses filed a Motion for Summary Judgment which was joined in by Flathead County. Glantz opposed the motion contending that the Tax Deed was null and void because of various discrepancies in the proceedings and in the deed itself. Glantz alleged error in that, among other things, the dollar amounts listed on the Notice That A Tax Deed May Be Issued did not coincide with the dollar amounts listed on the Tax Deed itself; that it was improper to send multiple notices in one envelope; and that she did not receive the notice pertaining to the park.
¶14 After a hearing, the District Court issued its Order and Rationale granting the Motion for Summary Judgment. The court determined that there were no genuine issues of material fact and that Flathead County had followed the statutory requirements in issuing the Tax Deed and in conveying the park to the Boyeses by way of a Grant Deed. Thus, on October 8,1997, the court entered a Decree quieting title to the Boyeses. Glantz appeals.
Standard of Review
¶ 15 Our standard of review in appeals from summary judgment rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156 (citing Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we held that
[the party moving for summary judgment] must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).
¶ 16 We have previously stated that the purpose of summary judgment is to dispose of those actions which do not raise genuine issues of material fact and to eliminate the expense and burden of unnecessary trials. Kane v. Miller (1993), 258 Mont. 182, 186, 852 P.2d 130, 133 (ci tations omitted). However, we have also stated that summary judgment is an extreme remedy and should never be substituted for a trial if a material factual controversy exists. Howard v. Conlin Furniture No. 2, Inc. (1995), 272 Mont. 433, 436, 901 P.2d 116, 118 (citations omitted).
Issue 1.
¶17 Whether the information set forth in a Tax Deed must be identical to the information set forth in the Notice That A Tax Deed May Be Issued.
¶18 The Notice That A Tax Deed May Be Issued recited a total tax for tax year 1990 of $42.71, along with a penalty of $.84, interest of $14.59, and nothing for costs. In contrast, the Tax Deed recited costs for tax year 1990 of $100 and interest of $1.59. Furthermore, the Notice That A Tax Deed May Be Issued recited that $362.51 in taxes, penalties, and interest was due by July 31, 1994, whereas the Tax Deed recited that the park was granted to Flathead County on December 22,1994, in consideration of the sum of $653.99.
¶ 19 Glantz contends that the Tax Deed should be declared null and void because of the discrepancies between the amounts listed in the Tax Deed and the amounts listed in the Notice That A Tax Deed May Be Issued. While Glantz concedes that the November 1994 taxes would have become due and payable between the time the notice was issued and the Tax Deed was granted, she contends that there is no correlation between the amount of the November taxes and the difference in the amounts listed on the notice and on the Tax Deed.
¶20 Glantz relies on Tax Lien Services v. Hall (1996), 277 Mont. 126, 919 P.2d 396, for the idea that any inaccuracies in the Notice That A Tax Deed May Be Issued, renders the Tax Deed null and void. While this is an accurate reading of our holding in Hall, that case is distinguishable from the facts in the case before us. In Hall, there were clear and admitted discrepancies and inaccuracies within the notice itself. In the case sub judice, Glantz has not shown that the amounts listed in the Notice That A Tax Deed May Be Issued are inaccurate. Rather, she only points to the fact that the amounts in the notice differ from the amounts in the Tax Deed.
¶21 This Court has firmly maintained the position that, because a property owner’s fundamental interests are at stake in tax deed proceedings, such proceedings “demand punctilious compliance with all statutory and procedural requirements.” Isern v. Summerfield, 1998 MT 45, ¶ 10, 287 Mont. 461, ¶10, 956 P.2d 28, ¶ 10 (citations omitted). However, there is no statutory requirement that the taxes, penalties, interest and costs set forth in the Notice That A Tax Deed May Be Issued be identical to those in the Tax Deed. See §§ 15-18-212 and 213, MCA. In fact, since a Tax Deed cannot be issued less than 60 days after the Notice That A Tax Deed May Be Issued, the interest and costs set forth in the Tax Deed will inevitably differ from those in the notice. Additional interest and costs will accrue between the date of issuance of the notice and the date of issuance of the Tax Deed. ¶22 Furthermore, § 15-18-212, MCA, the statute that sets forth the requirements for issuance of a Notice That A Tax Deed May Be Issued, provides that the notice must contain:
the amount of taxes due, including penalties, interest, and costs, as of the date of the notice of pending tax deed issuance, which amount must include a separate listing of the delinquent taxes, penalties, interest, and costs that must be paid for the property tax hen to be liquidated....
Section 15-18-212(6)(e), MCA (emphasis added). In contrast, the statutory form of aTaxDeed, as set forth in § 15-18-213(1), MCA, includes the phrase “in consideration of the sum of $......paid,” thus requiring the inclusion of the total amount due at the time of the issuance of the Tax Deed.
¶23 Accordingly, we hold that the information set forth in a Tax Deed need not, and in most cases cannot, be identical to the information set forth in the Notice That A Tax Deed May Be Issued.
Issue 2.
¶24 Whether multiple notices may he placed in the same envelope for mailing.
¶25 The Flathead County Clerk and Recorder placed seven Notices That A Tax Deed May Be Issued, each for a different parcel of real property, in one envelope and mailed them to Glantz. Glantz contends that § 15-18-212, MCA, requires that each notice must be placed in a separate envelope. We disagree.
¶26 Section 15-18-212, MCA, provides, in pertinent part:
(1) Not more than 60 days prior to and not more than 60 days following the expiration of the redemption period provided in 15-18-111, a notice must be given as follows:
(a) for each property for which there has been issued to the county a tax sale certificate or for which the county is otherwise listed as the purchaser or assignee, the county clerk shall notify all persons considered interested parties in the property and the cur rent occupant of the property, if any, that a tax deed may be issued to the county unless the property tax lien is redeemed prior to the expiration date of the redemption period ....
While this statute does require that a separate notice must be issued for each property, nowhere in this statute, or any other statute, is it required that each notice must be mailed in a separate envelope. To conclude that there was such a requirement would be to read that requirement into the statute which we are constrained from doing. “In the construction of a statute, 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.” Section 1-2-101, MCA.
¶27 Glantz also argues that because § 15-18-212(4), MCA, refers to “notice” rather than “notices,” that is further evidence that each notice must be placed in a separate envelope. Glantz is again incorrect. Under the general rules of statutory construction, “[t]he singular includes the plural and the plural the singular.” Section 1-2-105(3), MCA.
¶28 Accordingly, we hold that multiple notices of the issuance of Tax Deeds may be placed in the same envelope for mailing.
Issue 3.
¶29 Whether the Proof Of Notice For Issuance Of Tax Deed in this case complied with the statutory requirements.
¶30 Glantz contends that the Proof Of Notice For Issuance Of Tax Deed did not comply with the statutory requirements because it was acknowledged, rather than subscribed and sworn to, by the Clerk and Recorder. Glantz argues that § 15-18-216, MCA, requires that the proof of notice must include the phrase: “Subscribed and sworn to before me this_(Date).” Glantz’s argument is without merit.
¶31 While § 15-18-216, MCA, does provide a form to follow in issuing the proof of notice, use of that form is not mandatory. Section 15-18-216, MCA, states that “[t]he proof of notice may be made as follows[.]” Hence, use of the phrase: “Subscribed and Sworn to before me this_(Date),” in the proof of notice is also not mandatory.
¶32 Accordingly, we hold that the Proof Of Notice For Issuance Of Tax Deed did comply with the statutory requirements.
Issue 4.
¶33 Whether a description of property in a Notice That A Tax Deed May Be Issued must include the full legal description.
¶34 Glantz contends that Flathead County erred by not including the full legal description of the park in the Notice That A Tax Deed May Be Issued and, thus, the Tax Deed is null and void. The Boyeses and Flathead County argue that Glantz did not raise this issue in the District Court and that we should not address it on appeal. See Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100; Insured Titles, Inc. v. McDonald (1996), 275 Mont. 111, 118, 911 P.2d 209, 213. ¶35 On the contrary, in her affidavit filed in support of her Memorandum in Opposition to Motion for Summary Judgment, Glantz stated:
Finally, the Notice utilized by the County Treasurer to obtain a Tax Deed is insufficient to give Affiant sufficient notice of the land involved. The shorthand description was 28-29-21 Granite View and then the word “Park” appears on the far right-hand side. The full legal description is “The Park as shown on the plat of Granite View Subdivision, according to the map or plat thereof on file and of record in the office of the Clerk and Recorder of Flathead County, Montana,” as shown on the Tax Deed itself.
Therefore, we conclude that Glantz did raise this issue below and we will address its merits.
¶36 Section 15-18-211(1), MCA, requires that the Tax Deed contain the full legal description of the property. On the other hand, § 15-18-212(6)(b), MCA, requires that the Notice That A Tax Deed May Be Issued contain “a description of the property on which the taxes are or were delinquent, which must he the same as the description of the property on the tax sale certificate or in the record described in 15-17-214(2)(b).”
¶37 Furthermore, a tax sale certificate need not use the full legal description of the property in question. The statute setting forth the requirements for a tax sale certificate merely states that the certificate contain “a description of the property on which the taxes were assessed.” Section 15-17-212(l)(d), MCA. Consequently, there is no statutory requirement that a Notice That A Tax Deed May Be Issued contain the full legal description of the property in question.
¶38 Glantz relies on this Court’s recent decision in Isern v. Summerfield, 1998 MT 45, 287 Mont. 461, 956 P.2d 28, for the proposition that the full legal description of the property in question must be included in the Notice That A Tax Deed May Be Issued. Glantz’s reliance is misplaced.
¶39 In Isern, the adequacy of the legal description contained in the notice was not at issue. Rather, we held in Isern that a Tax Deed must contain the full legal description of the property. Isern, ¶¶ 18-19. In so holding, we cited the case of Hudson v. McDonald (1987), 229 Mont. 426, 747 P.2d 221, and stated that, in Hudson, “this Court set aside a notice of application for a tax deed that included an improperly abbreviated legal description and no identification of the county where the property was located.”Isern, ¶ 19 (emphasis added). Because we used the word “notice” in our reading of Hudson, Glantz has incorrectly interpreted that to refer to a Notice That A Tax Deed May Be Issued. Hence, Glantz argues that, in the case before us, the use of an abbreviated legal description created a defect in the Notice That A Tax Deed May Be Issued thus requiring us to set the notice aside.
¶40 In actuality, the “notice” that was set aside in Hudson was a notice that was published in the local newspaper pursuant to § 15-18-202(3), MCA (repealed 1987). We held in Hudson, that the published notice was fatally defective because it omitted the section, township, and range of the property, and, more importantly, the county where the property is situated. We reasoned that, for publication purposes, the abbreviated description did not adequately identify the location of the subject property. Hudson, 229 Mont. at 431, 747 P.2d at 223-24.
¶41 In contrast, in the case before us on appeal, the legal description contained in the Notice That A Tax Deed May Be Issued was adequate to identify the location of the subject property. Even though the legal description did not in itself contain the county where the property is located, the notice was issued by Flathead County, making it quite evident that the property must be situated in Flathead County.
¶42 Furthermore, rather than a published notice to the general public, as in Hudson, the notice at issue here was sent directly to Glantz. Since Glantz owned only one parcel of real property known as the “Park” in Granite View Subdivision, the abbreviated legal description in the Notice That A Tax Deed May Be Issued was sufficient to give Glantz notice of what property the notice pertained to.
¶43 Accordingly, we hold that the description of property in a Notice That A Tax Deed May Be Issued need not include the full legal description of the property unless, pursuant to § 15-18-212(6)(b), MCA, the full legal description was used on the tax sale certificate or in the record described in § 15-17-214(2)(b), MCA.
Conclusion
¶44 Having concluded that there were no defects in the tax sale proceedings and that Flathead County did follow the statutory requirements in issuing the Tax Deed and in conveying the park to the Boyeses by way of a Grant Deed, we affirm the District Court’s grant of summary judgment and the court’s Decree quieting title to the Boyeses.
CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, GRAY and HUNT concur.
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On May 29, 1998, the Defendant was sentenced to the Montana State Prison for one hundred (100) years. The Court declared the Defendant ineligible for parole for thirty (30) years. Credit is given for time already served, a total of 84 days.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Bethany Schendel. The state was represented by Brant Light.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he would like a continuance in this matter.
After careful consideration, it is the unanimous decision of the Sentence Review Division that this hearing shall be continued until the November, 1998, Sentence Review meeting.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
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] |
On April 20, 1998, the Defendant was sentenced to the Department of Corrections for a period of five (5) years with two (2) years suspended. Credit is given for time already served, a total of sixteen (16) days.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Rochelle Wilson. The state was represented by Brant Light.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
|
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] |
On May 15, 1998, the Defendant was sentenced to a five (5) year commitment to the Department of Corrections on Count I - Forgery, a felony; and a five (5) year commitment to the Department of Corrections on Count II - Criminal Possession of Dangerous Drugs, a felony. The sentences shall run consecutive to the sentence imposed in Cause No. 12872.
On September 18, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Margaret Borg from the Missoula County Public Defender’s Office. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be amended to a five (5) year commitment to the Department of Corrections, on each count, with the amendment that said sentences be served concurrently with the sentence imposed in Cause No. 12872.
The reason for the amendment is to conform to the understanding of the Court and the Defendant and to clarify the matter for the Board of Pardons and Parole.
DATED this 29th day of October, 1998.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Hohnstrom.
The Sentence Review Board wishes to thank Margaret Borg for representing Ms. Anderson in this matter.
|
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] |
On October 30,1997, it was the judgment of the Court that the defendant, Rebecca S. Parish is guilty of the felony offenses of Count I: Theft, in violation of Section 45-6-301, MCA 1995 and Count II: Criminal Endangerment, in violation of Section 45-5-207, MCA 1995, as charged in the Information. It is the decision of this court that the defendant, Rebecca S. Parish shall be committed to the custody of the Montana Department of Corrections for placement at the Montana Women’s Correctional Center, Billings, Montana for a term of ten (10) years on each of Count I and Count II. Such terms shall run concurrently. It is further ordered that the defendant shall be given credit for time already served in the Butte-Silver Bow jail in the amount of 51 days. It is further ordered that the sentence imposed in this matter shall run concurrent with that imposed by this Court in Cause No. DC 97-95. The sentence imposed in this matter also shall run concurrent with that imposed by the Montana Seventh Judicial District Court (Dawson County) in Cause No. DC 93-027. It is further ordered that the defendant shall be ineligible for parole in this matter until she completes the chemical dependency treatment program at the Montana Women’s Correction Center.
On April 10, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Rebecca S. Parish for representing herself in this matter.
|
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On October 9,1997, it was the judgment of the court that the suspended sentence for the offense of Sexual Intercourse without Consent, a felony, handed by to this defendant on May 6,1991, and February 14,1994, is hereby revoked. It is the judgment of the court that the defendant be and is hereby sentenced to the Montana Department of Corrections for a period of twelve (12) years. The defendant shall receive twenty-four (24) days credit for time served since his sentencing in Big Horn County Cause No. DC 97-07 on September 15,1997, and four (4) months credit for lapsed supervision time since being placed under supervision. It is the recommendation of the Court that the Rosebud County Sheriffs Office and the Montana Department of Corrections investigate the possibility of reprisals against the defendant, and make appropriate secure placement considering any risks to the defendant. The court further requires that the defendant complete all phases of the Sex Offender Treatment Program and Anger Management treatment while incarcerated. Upon release from the Montana Department of Corrections, terms and conditions of parole shall apply as stated in the October 9, 1997 judgment.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
|
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] |
On November 24,1997, it was the judgment of the court that defendant be and is hereby sentenced to the Montana Department of Corrections for a period of twenty (20) years, with ten (10) years suspended, with regard to Count I, with said sentence to run concur rently to the sentence imposed for Count II. In regard to Count II, the defendant is hereby sentenced to the Montana Department of Corrections for a period of twenty (20) years, with ten (10) years suspended, to run concurrently to the sentence imposed in Count I. Prior to his release from the Montana Department of Corrections, the defendant is required to complete a program equivalent to Phase I and Phases II of the Sexual Offender Treatment Program which is offered through Montana State Prison. During any period of parole and/or probation, the defendant shall be subject to conditions as stated in the November 24,1997 judgment.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Neil Teeth for representing himself in this matter.
|
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On November 4,1988, it was ordered that the defendant, Anthony S. Vogel, is sentenced to serve on Count I: Attempt (Deliberate Homicide), a Felony, One Hundred Years (100) in the Montana State Prison, at Deer Lodge, Montana. Because a dangerous weapon was used in the commission of the crimes, and pursuant to Section 46-18-221 MCA., the defendant is sentenced to an additional ten (10) years, which, ten years shall run consecutively to the 100 year sentence. It is also ordered that the defendant serve forty (40) years in the Montana State Prison at Deer Lodge, Montana for the offense of Count II: Robbery, a Felony. All Sentences are to run consecutively, which means the Court intends a total Sentence herein of 150 years in the Montana State Prison. The defendant is entitled to credit for the time he has been incarcerated in connection with the present offenses, which is 88 days through today’s date, November 3,1988. The Court recommends to the Warden of the Montana State Prison that any aváilable alcohol counseling, drug counseling, and mental health counseling which may be available to inmates, be made available to this defendant while he is serving this sentence. It is further ordered that pursuant to Section 46-18-236 MCA, the mandatory statutory surcharge of $20.00 is hereby assessed against this defendant. Said surcharge is to be paid to the Clerk of District Court, Cascade County Courthouse, Great Falls, Montana, as soon as possible.
Done in open Court this 4th day of June, 1998.
DATED this 17th day of June, 1998.
On June 4,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by attorney Ed Sheehy. The state was represented by Cascade County Attorney Brant Light.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank attorney Ed Sheehy for representing Anthony Vogel in this matter and also Brant Light, Cascade County Attorney, for representing the State.
|
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On August 12,1997, it was the judgment of the court that Havaii Kai Akane be and is hereby committed to the Department of Corrections for a term of seventeen (17) years on Count I for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the court that Havaii Kai Akane be and is hereby sentenced to a term of six (6) months each on Count II and III in the Missoula County Jail in Missoula, Montana. All of these sentences shall run concurrently with each other. It is the recommendation of the Court that the defendant be considered for placement in the Correctional Training Program. It is further ordered that the defendant shall register as a violent offender, pursuant to Section 46-23-504, 46-23-505, and 46-23-506, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for the remainder of his lifetime following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this registration period. Further, pursuant to Section 44-6-103, M.C.A., the defendant shall provide a blood sample to be used for DNA testing. That, however, five (5) years of defendant’s sentence on Count I is hereby suspended on terms and conditions as stated in the August 12,1997judg-ment. Defendant shall receive credit for time served at Missoula County Jail from February 27,1997, through date of sentencing, Au gust 12,1997, in the amount of one hundred sixty-seven (167) days. It is further ordered that as restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims. The restitution shall be disbursed to Safeco Insurance Company of America, Spokane Claims, (Insured: Two Bears Truck Stop and Café; Policy No. CP8629518; Claim No. 26A970241181), PO Box 2726, Spokane, WA 99220-2726, in the amount of One Thousand One Hundred Thirty-Two and 67/100 Dollars ($1,132.67); Two Bears Truck Stop and Café, Lolo, MT 59847, in the amount of Two Hundred Fifty Dollars ($250.00); Lizabeth Moree, 4740 Parent, Missoula, MT 59802, in the amount of Three Hundred Fifty Dollars ($350.00).
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
|
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] |
OnApril 16,1997, the Defendant was sentenced to ten (10) years to the Department of Corrections, with five (5) years suspended.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and advised of his right to be represented by counsel. The Defendant proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 5th day of November, 1998.
DATED this 30th day of November, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended from a ten (10) years commitment to the Department of Corrections, with five (5) years suspended, to a five (5) year commitment to the Department of Corrections, with none of that time suspended.
The reason for the amendment is because the original sentence is illegal under 46-18-201 (l)(e), MCA.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Mr. Heffner for representing himself in this matter.
|
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] |
On October 22,1997, it was ordered, adjudged and decreed as follows: A. Defendant is guilty of the five (5) offenses of Criminal Sale of Dangerous Drugs, Counts I - V, all felonies. B. Defendant is committed to the Montana Department of Corrections for placement in an appropriate program or facility for a period of five (5) years on each count. C. The commitment on each count is to be served concurrently. The conduct of defendant was part of a continuous pattern of conduct, each instance being reasonably related to the others. Further, law enforcement could have stopped defendant after the first instance, if deemed appropriate. D. The court strongly recommends that he be considered as soon as possible for chemical dependency treatment, or placed in a program or facility that provides him with such treatment such as a pre-release center. E. Any probation or parole shall be subject to conditions such as stated in the October 22,1997 judgment.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
|
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On July 29,1998, the Defendant was sentenced to fifteen (15) years in the Montana Women’s Prison, with five (5) years suspended - Count I; and ten (10) years in the Montana Women’s Prison, five (5) years suspended - Count II. The sentences shall run concurrently with each other, but consecutively to the Defendant’s sentence in the state of Washington.
On September 18,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was informed of her right to be represented by counsel. Defendant elected to proceed Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 18th day of September, 1998.
DATED this 29th day of October, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Angel Davis for representing herself in this matter.
|
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On October 31,1997, it was ordered, adjudged and decreed that the said Thomas Morgan be committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of five (5) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 39 days. It is recommended that defendant be considered for acceptance into the Swan River Correctional Training Center (boot camp). In all other respects, the previous Orders, conditions and reasons of this Court entered on the 15th day of November, 1996, shall remain unchanged and are reimposed and shall continue as if set forth in the October 31,1997judgment. It is the finding of this court pursuant to 46-18-201(3), Montana Code Annotated, the Court shall reject the elapsed time as credit against the sentence.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was represented by Joe Coble, Deputy County Attorney.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was farther advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Thomas Morgan for representing himself in this matter and Joe Coble, Deputy County Attorney, for representing the State.
|
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] |
On May 11,1998, the Defendant’s prior suspended sentence was revoked and the Defendant was sentenced to a term of ten (10) years in the Montana State Prison. The Court recommended that the Defen dant be screened for placement in the Intensive Supervision Program or Pre-Release if the Department of Corrections deems appropriate. Five (5) years of the Defendant’s sentence is suspended with terms and conditions.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Larry Mansch. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that the Department of Corrections be advised that the Defendant be immediately considered for pre-release and/or ISP and that a report be made back to this board within thirty (30) days.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Larry Mansch for representing Shane Erstad in this matter.
|
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] |
On June 23,1998, the Defendant was sentenced to five (5) years to the Montana State Prison, to run concurrent to the sentence imposed in Cause Number DC 96-575.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and advised of his right to be represented by counsel. The Defendant proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be continued until the February, 1999, meeting, giving the defendant the opportunity to proceed with counsel if he so desires.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 The plaintiff, Marilyn Schmitz, commenced this action in the District Court for the Fourth Judicial District in Missoula County, on behalf of herself and her husband, to recover damages which she alleged were caused by the negligence of the defendant, Ned Vasquez, M.D. The District Court dismissed her complaint for failure to comply with the provisions of Rule 41(e), M.R.CivR, related to service of process. Schmitz appeals the order of the District Court. We reverse and remand for further proceedings.
¶2 The issue presented on appeal is:
¶3 Did the District Court err when it dismissed Schmitz’s claims for improper service of summons?
FACTUAL BACKGROUND
¶4 Schmitz filed her original complaint, pro se, on April 5,1994. She alleged that the defendants, Ned Vasquez, M.D., and Mark Sanz, M.D., breached the appropriate standard of care in their treatment of her husband, Peter, and that as a result, he suffered a massive stroke which left him almost completely incapacitated.
¶5 On the same day that the complaint was filed, the clerk of the District Court issued Schmitz a summons for each defendant.
¶6 Pursuant to § 27-6-701, MCA, of the Montana Medical Legal Panel Act, Schmitz had previously submitted her claim against Vasquez to the panel; however, she had not submitted a claim against Sanz.
¶7 Through counsel, Schmitz filed an amended complaint on April 1,1997. The amended complaint included substantially the same allegations against Vasquez as the original complaint, but it omitted any allegations against Sanz and omitted his name from the caption.
¶8 On the same day that the amended complaint was filed, the original summons were returned to the court and an “amended summons” was issued to Schmitz for service upon Vasquez. The amended summons was identical in substance to the original summons for Vasquez, except that Sanz’s name was removed from the caption, and the summons was retitled “amended summons.”
¶9 This summons was served on Vasquez on April 1,1997. Proof of service was filed with the District Court on April 2,1997, less than three years from the date that the original complaint was filed.
¶10 On April 21,1997, Vasquez moved for dismissal of the action based upon insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted. This motion was granted, based upon the District Court’s conclusion that the original summons was not timely served and that plaintiff’s complaint must therefore be dismissed. Schmitz filed a motion for reconsideration and the order was subsequently vacated with instructions from the District Court to brief the issue of prejudice to Vasquez. On February 25,1998, the District Court reinstated its order which dismissed Schmitz’s complaint.
DISCUSSION
¶11 Did the District Court err when it dismissed Schmitz’s claims for improper service of summons?
¶12 We review a district court’s conclusions of law for correctness. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶ 13 The District Court dismissed Schmitz’s complaint for her failure to comply with Rule 41(e), M.R.Civ.P., which provides in pertinent part:
Failure to serve summons. No action heretofore or hereafter commenced shall be farther prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years.
¶14 Schmitz contends that the procedural irregularities present in this case should not result in a dismissal of her suit because Vasquez was not prejudiced by the manner in which he was served with process. In support of her contention, she cites our decision in Yarborough v. Glacier County (1997), 285 Mont. 494, 948 P.2d 1181, and our policy which favors the resolution of disputes on their merits. ¶15 Vasquez contends that Schmitz failed to comply with Rule 41(e), M.R.Civ.P, because the original summons was not served on Vasquez within three years of the commencement of the action. He further contends that the amended summons was invalid because Schmitz did not obtain leave from the court to amend the summons, as required pursuant to Rule 4D(7), M.R.Civ.P., nor did she obtain leave from the court to remove Sanz, as required pursuant to Rule 21, M.R.Civ.P. Schmitz acknowledges that she did not literally comply with Rule 4D(7), but contends she had a right to amend her complaint pursuant to Rule 15(a), M.R.Civ.P.
¶16 In Yarborough, the plaintiff lost the original summons prior to service. The clerk of court issued an identical summons more than one year after the complaint was filed and the defendant moved for dismissal based upon Rule 41(e). We held that by serving, within three years, an identical copy of an original summons which had been issued within one year of the commencement of the action, the plaintiff complied with the substance and purpose of Rule 41(e). We concluded that “to require more would exalt form over substance and do nothing to further the resolution of controversies on their merits.” Yarborough, 285 Mont. at 497, 948 P.2d at 1183.
¶ 17 Vasquez points out that the summons in Yarborough was a duplicate of the original, while in this case the summons was “amended.” He argues that the improper removal of Sanz from the complaint and from the summons constituted a substantial alteration of the summons, which renders the facts in the present case more analogous to those of Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517.
¶18 In Larango, the plaintiffs altered a summons which had previously been issued by the district court by changing the name of their counsel, as well as by both adding and removing plaintiffs. The defendant moved to quash the summons because it had been materially altered since the date of issuance. Plaintiffs then requested leave to amend the summons, but the district court did not rule upon the motion. We held that the power to issue a summons lies exclusively with the clerk of court, an attorney has no power in the matter, and cannot alter a summons without leave of court. We also held, however, that the district court should have permitted amendment once it was requested. See Larango, 196 Mont. at 47, 637 P.2d at 519.
¶ 19 In this case, Schmitz did not alter a previously issued summons. She requested and received an amended summons from the clerk of the District Court. While it is true that she did not comply with Rule 4D(7) because the District Court did not give her permission to have an amended summons issued, the issuance of the amended summons did not prejudice Vasquez. Our review of both the original and “amended” summons reveals that they are substantively identical. “[W]e disregard [the] terminology in the title of the summons” and look to its substance. See Yarborough, 285 Mont. at 499, 948 P.2d at 1184. The purpose of the summons is to provide a defendant with notice that he has been made a party to an action and that he has twenty days to appear before the court.
¶20 Vasquez can show no prejudice resulting from the variation between the manner in which he was served with process and the manner in which he would have been served by the original summons, or the manner in which he would have been served if Schmitz had complied with Rule 4D(7). In all three scenarios, Vasquez received notice, within three years of the commencement of the action, that he was a party to this action. Furthermore, a summons has existed, identifying him as a party, since the commencement of the action.
¶21 Rather than being prejudiced by the amended summons, the amendment actually assisted Vasquez in ascertaining the true nature of the action against him. Schmitz could not proceed against Sanz because she did not make a claim against him before the Medical Legal Panel and, therefore, the District Court had no jurisdiction over him. The amended summons more accurately reflected this fact. In Larango, we concluded that where amendment would have aided a party, it was an abuse of discretion for the district court not to allow the amendment. See Larango, 196 Mont. at 48, 637 P.2d at 520.
¶22 Vasquez also contends that Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, and Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 729 P.2d 469, control the outcome of this case.
¶23 The holding in Haugen is inapplicable to the present facts. In Haugen, amended summons were issued by the clerk of court, at the plaintiffs’ request, just prior to the expiration ofthe three-year period. The plaintiffs failed to serve one of the summons, and failed to file proof of service for any of the summons prior to the expiration of that period. We held that failure to file the proofs of service within three years of the commencement of the action violated Rule 41(e). See Haugen, 279 Mont. at 9, 926 P.2d at 1369. We did not, however, hold that the amended summons were invalid.
¶24 In this case, Schmitz was also issued an amended summons by the clerk of the District Court just prior to the expiration of the three-year period. However, unlike the plaintiffs in Haugen, Schmitz was able to serve and file proof of service of the amended summons within the three-year period, in accordance with Rule 41(e).
¶25 In Association of Unit Owners, the plaintiffs obtained “duplicate summons” more than one year after the commencement of the action. We held that the purported “duplicates” failed to meet the requirements of Rule 41(e) because they were changed in substance from the original summons which did not give adequate notice to the defendants who were not originally named. See Association of Unit Owners, 224 Mont. at 148, 720 P.2d at 472.
¶26 The facts of the present case are distinguishable. Here, there was no change in the summons which was relevant to Vasquez. He received the same notice from the amended summons as he wouldhave received from the original summons. Both provided him with notice that a complaint had been filed against him and that he had twenty days to respond. As we stated earlier, Vasquez can show no prejudice resulting from the removal of another party’s name from the summons.
¶27 Rule 1, M.R.CüvB, provides that the rules of civil procedure should be construed to secure the just, speedy, and inexpensive determination of every action. The policy of the law is to favor trial on the merits. See Hoyt v. Eklund (1991), 249 Mont. 307, 311, 815 P.2d 1140, 1142. lb bar Schmitz from the courthouse because of procedural irregularities from which Vasquez could show no prejudice would do nothing to further the goals and policies of the rules of civil procedure. We condude that Schmitz complied with the substance and purpose of Rirle 41(e), and, as in Yarborough, we decline to elevate form over substance. The amended summons adequately notified Vasquez that he was a defendant in a dvil action and that he had twenty days in which to make an appearance. Furthermore, it was served within the time required by law Therefore, the order of the District Court dismissing the complaint is reversed, and we remand for further proceedings.
CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, REGNIER and HUNT concur.
|
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On August 12,1997, it was adjudged and decreed that the defendant Mervil Leroy Mickelson is guilty of Count I - Persons under the influence of alcohol or drugs, (fourth or subsequent offense), a felony and Count IV - Driving while habitual offender, a misdemeanor as charged in the Information. It is the judgment of the court, with respect to Count I - Persons under the influence of alcohol or drugs (fourth or subsequent offense), a felony, that the defendant Mervil Leroy Mickelson is hereby sentenced to a term of five (5) years in the Montana State Prison. That, however, three (3) years of defendant’s sentence is hereby suspended on the terms and conditions as stated in the August 12, 1997 judgment. It is further the judgment of the court, with respect to Count IV - Driving while habitual traffic offender, a misdemeanor, that the defendant is sentenced to serve thirty (30) days in the Sanders County Jail. Defendant is further required to pay the mandatory Twenty Dollar ($20.00) surcharge to the Clerk of the District Court of Sanders Comity. The sentences for both counts shall run concurrently. The defendant shall receive credit for one hundred and three (103) days time already served in the Sanders County Jail as of the date of this judgment.
Done in open Court this 20th day of February, 1998.
DATED this 12th day of March, 1998.
On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Mervil Leroy Mickelson for representing himself in this matter.
|
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On October 24,1997, it was ordered, adjudged and decreed that for the offenses of Criminal Endangerment, a Felony, and Aggravated Assault, a Felony, the defendant be sentenced to the Montana Department of Corrections for a period of ten (10) years. It is further ordered that five (5) years of said sentence be suspended upon conditions as stated in the October 24, 1997 judgment. It is further ordered, adjudged and decreed that the defendant be sentenced to six (6) months in the Broadwater County Jail on the charge of Criminal Trespass, a Misdemeanor. It is further ordered, adjudged and decreed that said sentences shall run concurrently. It is further ordered, adjudged and decreed that the defendant be considered for screening and placement in the Boot Camp Program pursuant to Section 53-30-401, MCA, et seq.
On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
|
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On May 15,1998, the Defendant was sentenced to a five (5) year commitment to the Department of Corrections for the offense of Deceptive Practices, a felony. This sentence shall run consecutively with the sentences imposed in Cause No. 12835.
On September 18, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Margaret Borg from the Missoula County Public Defender’s Office. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be amended to a five (5) year commitment to the Department of Corrections, with the amendment that this sentence be served concurrently with the sentences imposed in Cause No. 12835.
The reason for the amendment is to conform to the understanding of the Court and the Defendant and to clarify the matter for the Board of Pardons and Parole.
DATED this 29th day of October, 1998.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Margaret Borg for representing Ms. Anderson in this matter.
|
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On June 10,1998, the Defendant was sentenced to ten (10) years in the Montana State Prison. In Cause No. BDC-93-104, for Count I, II, and IV, the Court revokes his suspended sentence on all three Counts and imposes a ten (10) year sentence on each count to the Montana State Prison. These Counts are to run concurrently to each other and also to the sentences imposed in BDC-97-300 and CDC-97-372. The Defendant is given credit for 168 days for time already served.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Bethany Schendel. The state was represented by Brant Light.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Bethany Schendel for representing Steven Robb in this matter.
|
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] |
On October 1,1997, it was the sentence and judgment of the court as follows: 1. That the defendant is guilty of violating the terms and conditions of the sentence heretofore imposed upon him on the 5th day of March, 1997, and the suspended sentence is hereby revoked. 2. That the defendant is committed to the Montana State Prison for a term of nine (9) years with regard to the Felony charge, and for a term of six months in the Ravalli County Jail with regard to the Misde-
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
meanor charge, the two sentences to run concurrently with one another. The Court directs that the defendant not be considered for parole until such time as he has completed all phases of the chemical dependency treatment program offered by the Montana State Prison. The defendant shall receive a total credit of 28 days for time served in jail prior to this sentencing.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Norbert Anthony Koerber for representing himself in this matter.
|
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] |
On February 20,1998, the Defendant was sentenced to seven (7) years to the Department of Public Health and Human Services.
On November 5, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was not present, but was represented by Lucas J. Foust. The state was not represented.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence be dismissed, without prejudice, as this Division does not presently have jurisdiction in this matter.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Lucas J. Foust for representing Mr. Sandy in this matter.
|
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On October 1,1997, the defendant, Suzanne Meis, is guilty of the crimes of Burglary, a Felony, Section 45-6-204, M.C.A., and Illegal Possession of Alcohol, a Misdemeanor, Section 45-5-624, M.C.A. The defendant is committed to the Montana Department of Corrections for appropriate placement into a community-based program, facility, or state correctional institution, to potentially include the Montana Women’s Correctional Facility at Billings, Montana, for a period of ten (10) years, with five (5) years suspended on the Felony, subject to conditions as stated in the October 1,1997 judgment. The Court recommends to the Department of Corrections that the defendant be considered for placement at an appropriate prerelease center. It is further ordered that as restitution is collected, the Clerk of Court shall distribute said restitution to the Hamilton Fire Department, Hamilton, MT 59840.
On April 10,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended from a sentence of ten (10) years with five (5) years suspended to D.O.C. to a three (3) year deferred sentence under all applicable terms of the judgment already issued, including restitution, probationary fee, and being placed with the Department of Corrections. Normal rules of probation apply, plus the defendant must obtain her GED or a high school diploma within one year of today’s date.
Reasons for the amendment are: (1) The defendant lacks a criminal history. (2) It is what was recommended by the State in the plea agreement. (3) The co-defendant in this case received a three (3) year de-
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
ferred sentence. (4) It is more in line with similar sentences given for this offense for first time offenders.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Alternate Member, Hon. G. Todd Baugh.
The Sentence Review Board wishes to thank Suzanne Meis for representing herself in this matter.
|
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] |
On March 27, 1998, the Defendant’s prior deferred sentence was revoked and he was sentenced to a term of twenty (20) years in the Montana State Prison. It is the recommendation of the Court that prior to the Defendant becoming eligible for parole or early release that the Defendant shall successfully complete the sex offender treatment program at the Montana State Prison. The Defendant shall register as a sexual offender, pursuant to Section 46-23-505, and 46-23-506, MCA. Further, the Defendant shall provide a blood sample to be used for DNA testing, pursuant to Section 44-6-103, MCA. Due to the Defendant’s failure to comply with the terms and conditions of his deferred sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except for one hundred ninety-six (196) days jail time which he previously served.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Mark McLaverty. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Mark McLaverty for representing Ray Lee Benjamin in this matter.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 The defendant, Douglas DeVore, was charged by information in the District Court for the Thirteenth Judicial District in Yellowstone County with attempted deliberate homicide, assault, criminal endangerment, and resisting arrest. After a three-day jury trial, DeVore was convicted of all counts except the criminal endangerment charge. DeVore appeals his conviction. We vacate the judgment of the District Court and remand to the District Court for further proceedings.
¶2 The sole issue on appeal is whether DeVore’s conviction should be reversed due to the District Court’s denial of DeVore’s motion to dismiss two jurors for cause.
FACTUAL BACKGROUND
¶3 On the evening of March 5, 1996, Douglas DeVore and Steve Scott were involved in a verbal altercation following a game of pool at the Empire Bar in Billings. During their dispute, DeVore drew a handgun and fired a shot into the ceiling of the bar. DeVore left the bar immediately after he fired the shot, and Scott and another man followed him.
¶4 The two continued to exchange words on the street, and DeVore eventually fired two more shots in Scott’s direction. The shots narrowly missed Scott, who fled into the Northern Hotel. DeVore followed Scott into the hotel.
¶5 There was conflicting testimony about DeVore’s conduct at the hotel. Four witnesses testified that DeVore pointed the gun at them and that they were afraid that he would shoot them. DeVore, on the other hand, claims that he did not specifically point the gun at anyone and that he did not intend to injure anyone. He admits that he yelled for Scott, but that when he could not find him in the hotel, he left. Police then arrived at the hotel and handcuffed DeVore; DeVore admitted that he resisted the arrest “slightly.” The police testified that they had to wrestle him to the ground to handcuff him.
¶6 The State charged DeVore by information in the District Court for the Thirteenth Judicial District in Yellowstone County. It alleged that DeVore had committed attempted deliberate homicide and felony criminal endangerment, and that he had resisted arrest; in June 1996, the information was amended to include four felony counts of assault.
¶7 On the first day of the three-day trial, the parties participated in jury selection. During the State’s examination, one juror was excused because he was acquainted with Scott and had heard Scott’s version of the events. Two prospective jurors were also dismissed for cause during the defendant’s examination, one because of his strong belief that it is inappropriate for citizens to carry handguns, and the other, Richard Klotz, because he was unsure of his ability to afford the defendant the presumption of innocence.
¶8 DeVore challenged two other prospective jurors, Kirk Brumfield and Jeffrey Schwehr, for cause based upon responses that they gave similar to Klotz’s, which DeVore alleged raised concerns about their ability to presume he was innocent. The District Court told the jurors that they would have to presume DeVore innocent, and that if they were not convinced by the State beyond a reasonable doubt, they would have to find that DeVore was not guilty. When asked by the District Court if they could do that, both Brumfield and Schwehr stated that they thought they could. The District Court then denied DeVore’s challenges. DeVore removed Brumfield and Schwehr with two of his six peremptory challenges; he exhausted his four remaining peremptory challenges on other prospective jurors.
¶9 During the trial, DeVore contended that he acted out of self-defense and that his state of mind did not reflect the necessary intent pursuant to the charged offenses. He testified that he was only attempting to scare Scott when he fired the shots on the street, and that he never intended to kill Scott or to cause injury to anyone at the hotel.
¶10 The jury acquitted DeVore of the criminal endangerment charge and convicted him of all the remaining charges.
DISCUSSION
¶11 Should DeVore’s conviction be reversed due to the District Court’s denial of DeVore’s motion to dismiss two jurors for cause?
¶12 We will not reverse a district court’s decision regarding a juror’s fitness to serve absent an abuse of discretion. See State v. Sullivan (1994), 266 Mont. 313, 320, 880 P.2d 829, 834; State v. Williams (1993), 262 Mont. 530, 536, 866 P.2d 1099, 1102.
¶13 Our analysis of this case involves a two-step process. First, we must determine whether the District Court abused its discretion when it denied DeVore’s motion to remove Brumfield and Schwehr for cause. Second, if we determine that the District Court abused its discretion, we must determine whether DeVore’s conviction should be set aside as a result of the District Court’s error.
¶14 Section 46-16-115, MCA, sets forth the reasons for which the District Court should excuse a juror for cause. It states in relevant part: “A challenge for cause may be taken for... (j) having a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Section 46-16-115(2)(j), MCA.
¶15 At issue here is the state of mind of jurors Brumfield and Schwehr. DeVore’s counsel posed the following questions to all of the prospective jurors:
By the mere fact that defendant is charged with what they call an Information, which is a charging document filed with the courts, does anybody believe, therefore, that he is guilty of what he is charged with as he sits here before you right now? Does anybody believe that he has got to be guilty of something, otherwise he wouldn’t be charged?
¶16 Three jurors responded to the question:
SCHWEHR: Well, I do have to be honest. He may have to be guilty of something, but may have been not felony, felony assault.
[DEF. COUNSEL]: So you, therefore, as you sit before us in your mind the defendant is guilty of something?
SCHWEHR: Something.
[DEF. COUNSEL]: Even though you haven’t heard any evidence whatsoever —
SCHWEHR: That’s right.
[DEF. COUNSEL]: — coming from this stand? The mere fact that he is charged with something causes you alarm, cause you to think that he is guilty of something? Maybe not what he is charged with?
SCHWEHR: Fair or not.
[DEF. COUNSEL]: I’m sorry?
SCHWEHR: Fair or not.
[DEF. COUNSEL]: That’s an honest answer.
KLOTZ: I would agree with him.
BRUMFIELD: So would I.
[DEF. COUNSEL]: You agree with that? You know, [State’s counsel] talked with you folks about this presumption of innocence, and each one of you said to him, “Well, yeah, I presume him innocent.” But you, sir, and you, sir, and you, sir, have spoken up now, and you are letting me know that your true feeling is that he’s guilty of something here or he wouldn’t be charged; is that right?
KLOTZ: That’s correct on my part.
[DEF. COUNSEL]: And then you are going to expect us, the defense, to come forward and prove to you that he is not guilty of what he is charged with, and maybe not guilty of anything. Is that the—
KLOTZ: I don’t expect you to prove anything. I expect them to prove that he is in fact guilty of the charges that you have explained.
[DEF. COUNSEL]: Okay. But while sitting there waiting for this proof to come to you from the State, you have already made up your mind he is guilty of something?
KLOTZ: Well, of something. Maybe possibly guilty of shooting a gun at something.
[DEF. COUNSEL]: And you, sir, feel the same way?
BRUMFIELD: Me or —
[DEF. COUNSEL]: Both of y’all.
BRUMFIELD: I just feel he wouldn’t be here. Guilty of something, maybe he was guilty of being at the wrong place at the wrong time; but I feel there is guilt of something or he would not be in front of us.
[DEF. COUNSEL]: Those are honest answers and that is — anybody else?
KLOTZ: I don’t feel that anybody runs around packing a gun, and so there has got to be something there.
[DEF. COUNSEL]: Okay. So in your mind, if someone carries — by the mere fact that someone carries a firearm with them, then that gives you cause to believe that he’s got —
KLOTZ: There is something there.
[DEF. COUNSEL]: Okay. Of a sinister —
KLOTZ: Yeah. In Texas you’re licensed to carry them; you are not licensed in Montana to carry them.
[DEF. COUNSEL]: Judge, I am going to challenge these three people for cause.
¶17 The District Court then instructed DeVore’s counsel to inquire into whether the three jurors would be able to return a verdict of not guilty if the State could not prove the charges beyond a reasonable doubt, even if they thought that he was “guilty of something.” In its statements to DeVore’s counsel, the District Court referred to “what the law will require [the jurors] to do,” and to the “independent oath as a juror” that they would be given by the District Court.
¶ 18 DeVore’s counsel told the jurors that the presumption of innocence “is not something that you just pay lip service to, this is something that you are supposed to believe in.” Klotz, however, agreed that he had difficulty with the concept, and maintained that the defendant was guilty “maybe of something — one of the charges.” DeVore’s counsel asked whether the other jurors believed like Klotz:
BRUMFIELD: Well, I have some faith in the State and the police department that they just don’t bring charges against somebody just because they picked that man, or somebody seen that man there. I think they do a lot of investigative work ahead of time before they bring this to the courts or to us as jurors.
So that was why I stated that I feel that he is guilty of something, not necessarily of the charges brought up against him, and maybe he has other reasons for doing what he has done. But that’s where I base that from, yes.
[DEF. COUNSEL]: That’s exactly my point for a reason for doing what he has done. You haven’t heard any evidence of anything that he’s done.
BRUMFIELD: That’s true.
[DEF. COUNSEL]: Other than the allegations.
BRUMFIELD: That’s exactly right.
[DEF. COUNSEL]: But you are already starting out with the concept of this presumption of innocence, a nice three set of words. But it doesn’t really hold for you, what this is supposed to mean; isn’t that correct?
BRUMFIELD: Perhaps, perhaps; I’m not sure what that is to mean.
[DEF. COUNSEL]: Well, this man is supposed to be presumed innocent of everything and anything.
BRUMFIELD: Once he is in this court.
[DEF. COUNSEL]: As he sits before you right now.
BRUMFIELD: Okay.
[DEF. COUNSEL]: But you believe, because in your faith in the system, beginning with the investigation by the police, and then the charging by the State, that this man sits before you guilty of something. Either one of the charges or all of the charges or something associated with those charges?
BRUMFIELD: I guess I don’t know how to answer that. Do I feel he’s guilty of any of the charges? No. I really have no idea. I haven’t heard anything.
[DEF. COUNSEL]: That’s fair enough. And then underlying that, however, you believe that he is guilty of something; however, whether it’s the charges or something less than those charges or he wouldn’t be here today?
BRUMFIELD: I feel he is involved, yes.
[DEF. COUNSEL]: Okay. Involved in a manner that is criminal and, therefore, he is guilty of something or simply just involved because he is a defendant?
BRUMFIELD: I don’t know that I can answer that either. I guess I couldn’t make my decision of guilty or not guilty until I heard everything.
[DEF. COUNSEL]: Okay. Let me ask you this: If you were sitting in that man’s chair right there, standing accused of these man’s crimes, would you feel comfortable with someone of your frame of mind sitting where you are?
BRUMFIELD: If I was guilty, absolutely not; if I was not, it would be a big maybe. Yes.
¶ 19 Schwehr’s dialogue with DeVore’s counsel advanced as follows:
[DEF. COUNSEL]: Okay. And then going back to you, you heard these honest answers from these individuals. Do you still stand by your original statement? Do you feel that he is charged, therefore, guilty of something?
SCHWEHR: No, that’s not true. I assume he is guilty of something. I don’t assume just because he is charged with felony assault or anything like that. Like the gentleman in the jury box, he said that most likely there had to be an investigation, otherwise he would not be here.
[DEF. COUNSEL]: Um-hum.
SCHWEHR: Whatever he is accused of here, I am still even not a hundred percent, even though you ran off the list of charges. But unless our prosecuting attorneys can prove beyond the shadow of a doubt that he is in fact guilty of what he is charged there, I’m going to insist that he be cleared of everything.
[DEF. COUNSEL]: Okay. Now we discussed presumption of innocence here, and belief that this man wouldn’t be here unless he is guilty of something. Right?
SCHWEHR: I still assume he is guilty of something.
[DEF. COUNSEL]: Okay. So you don’t believe in this presumption of innocence for what it means?
SCHWEHR: I want to; and as the Judge said, if I could take my brain and erase everything off of it like a blackboard, I would do' that. But unfortunately, I can’t.
[DEF. COUNSEL]: And that’s because of your personal biases and prejudices that you have come to this courtroom with?
SCHWEHR: (Nod of head.)
[DEF. COUNSEL]: We cannot get rid of those internal things that are within us. But the problem is we have to truly believe, before we can ask you to sit as a juror, in all fairness to the defendant, that you believe in that concept there. And what you are telling me is that you have — you’re having difficulty with your answer?
SCHWEHR: That’s correct.
¶20 DeVore renewed his challenge for cause against all three jurors. The District Court then stated:
What you are confusing is these folks seem to have some faith in the system. There is nothing wrong with that. What is — the question I haven’t heard yet is whether you will accord the defendant his right to the presumption of innocence.
I don’t care so much, or it’s maybe not as important whether you believe that should be accorded him; will you, that is the question. Because you will be instructed and you will be expected to accord him the right, to accord him this presumption of innocence. You will be swearing to abide by that, and I need to know whether you can or not, whether you believe —
There may be other things that may come up that you don’t think the law ought to be the way it is. Well, that’s something you need to take up with your legislator, because what you will be swearing in this Court as jurors, if you are seated as a juror, will be to follow the law, and the law does require that you give this man the presumption of innocence.
That will be with him at every stage of these proceedings, that is with him now. And it will not be overcome until all 12 that are seated as a juror find as a group, unanimously, that beyond a reasonable doubt, the State has overcome that presumption.
Now, can you do that, [jurors]?
Brumfield and Schwehr each answered that they could do what the District Court had described; Klotz stated that he did not know. After the State’s counsel also addressed the three of them, Brumfield and Schwehr stated that they felt that they could be fair and impartial jurors, while Klotz was still not sure. Further questions by both DeVore’s counsel and the District Court revealed that Brumfield “can’t honestly say I believe he is a hundred percent honest of everything when I am here in this courtroom for a reason, the State has brought charges against him for a reason, there is a reason.” He nonetheless believed that based on his duty as a juror, and in spite of a personal belief that the defendant is guilty, he could find DeVore not guilty if the State did not convince him beyond a reasonable doubt. The District Court stated that it did not “have any problem” with Brumfield and Schwehr, but recognized that Klotz “has a little more doubt in his mind.” Therefore, the District Court excused Klotz for cause but denied DeVore’s challenge to Brumfield and Schwehr.
¶21 We have previously held that disqualification based on a juror’s alleged prejudice is necessary only where jurors “form fixed opinions on the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict based solely on the evidence presented in court.” Great Falls Tribune v. District Court (1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120 (citing/rein v. Dowd (1961), 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 756); see also Sullivan, 266 Mont. at 320, 880 P.2d at 834. Similarly, “[a] court must excuse a prospective juror if actual bias is discovered during voir dire.” State v. Chastain (1997), 285 Mont. 61, 64, 947 P.2d 57, 59 (quoting United States v. Allsup (9th Cir. 1977), 566 F.2d 68, 71).
¶22 Based on this language, the State contends that in order for this Court to conclude that the District Court should have dismissed the jurors for cause, Brumfield and Schwehr must have displayed bias in the form of a fixed opinion of DeVore’s guilt of the alleged crimes, something which the State contends they did not do. Despite the well-established deference that we give to district court decisions regarding a juror’s fitness, we reject the State’s suggestion here that our review of a District Court’s decision regarding a juror’s partiality is limited only to whether the juror has stated a specific belief that the defendant is guilty as charged.
¶23 We noted in Chastain that “frequently, jurors are reluctant to admit actual bias, and... biased attitudes must be revealed by circumstantial evidence.” Chastain, 285 Mont. at 64, 947 P.2d at 59. In the majority of our prior cases that have addressed juror partiality, jurors did not necessarily state a fixed opinion about the defendant’s guilt, but nonetheless circumstantial evidence of bias was apparent in relation to the particular circumstances of the defendant’s case. See, e.g., Chastain, 285 Mont. at 63-64, 947 P.2d at 59 (defendant charged with sexually assaulting his young female relatives, and juror expressed prejudice based on his sister’s abduction at the age of sixteen); Sullivan, 266 Mont. at 321, 880 P.2d at 834 (juror reported prior knowledge of theft allegations against defendant, who was the local director of park and recreation department); Williams, 262 Mont. at 534-35, 866 P.2d at 1101-02 (juror knew the arresting officer, resided near where the alleged incident occurred, and had recently been a juror on similar charges); Great Falls Tribune, 186 Mont. at 439-40, 608 P.2d at 120 (involving a very high-profile crime with extensive media coverage).
¶24 Here, Brumfield and Schwehr did not express an unequivocal opinion that DeVore was guilty as charged. They did, however, demonstrate another form of bias based on their belief that people charged with crimes must be guilty of “something.” Moreover, they acknowledged that it was difficult for them to understand and apply the presumption of innocence. Although they may not have stated in so many words that they believed DeVore was guilty of the charges against him, their adherence to the belief that “he is guilty of something” plainly demonstrated a serious question about their ability to act with impartiality and to afford DeVore the presumption of innocence to which he was entitled.
¶25 In Williams, we stated:
[W]hen voir dire examination discloses a serious question about a juror’s ability to be fair and impartial, that question should be resolved in favor of excusing that juror. The role of the District Court is not to simply establish some record from which a future argument can be made that the juror recanted his or her admission of bias.
While there may be some temporary inconvenience to the court and to the parties from excusing a juror for cause, that inconvenience is minor compared to the expense and inconvenience that results from having to retry criminal cases.
Williams, 262 Mont. at 539-40, 866 P.2d at 1104-05. As the State points out, the facts of Williams are distinguishable from this case. Williams involved a potential juror who, during voir dire, expressed her concern about her ability to be impartial. She was a close friend of the arresting officer, was a resident of the neighborhood where the homicide at issue had occurred, had read of the crime and formed an opinion about it, and had just recently been on a jury in another homicide trial. The defendant challenged the juror for cause, at which point the district court reminded her that if she was chosen as a juror she would be instructed not to form an opinion. When the district court asked whether she could keep an open mind, she said that she could. The district court, on that basis, denied the defendant’s motion to dismiss her. We held that both subsections (e), which addresses prior jury service in a trial that involved the same or a related offense, and (j)> the provision relied on in this case, of § 46-16-115(2), MCA, constituted independent bases for her removal, and that the district court abused its discretion when it denied the defendant’s motion to remove her. See Williams, 262 Mont. at 534-37, 866 P.2d at 1101-03. Although the facts are different, the issues in Williams and this case are the same.
¶26 The State contends that the District Court properly characterized the jurors’ statements as merely indicative of their “faith in the system,” and consequently separated that belief from the question of whether the jurors could afford the defendant his right to the pre sumption of innocence. This is a semantic distinction without a difference. However their responses are characterized, Brumfield and Schwehr maintained that DeVore was “guilty of something.” They did not presume him entirely innocent and, therefore, were not impartial as the law requires that that term be defined.
¶27 We note a further problem with the manner in which the District Court’s discretion was exercised in this case. In Williams, we expressly admonished trial judges regarding attempts to rehabilitate jurors. See Williams, 262 Mont. at 536, 866 P.2d at 1103 (“In the face of these admissions of bias, the District Court’s rehabilitation of this witness was, at best, unpersuasive, and at worst, threatening.”). Here, the District Court’s effort to preserve Brumfield and Schwehr as jurors demonstrates two abuses. First, by deflecting the focus to law enforcement and characterizing the jurors’ beliefs as a matter of the jurors’ faith in that system, the District Court shifted the focus from the effect of those beliefs on the defendant’s rights. Consequently, it ignored the obvious reality that jurors who steadfastly adhere to a belief that defendants are somehow guilty threaten a defendant’s right to a fair and impartial jury.
¶28 Second, the District Court told the jurors that they “will be instructed and ... expected to accord him the right,” and that they would “be swearing in this Court as jurors... to follow the law,” only to ask them immediately afterward, “can you do that?” The State contends that Brumfield’s and Schwehr’s responses to this question and others in which they stated that they could find DeVore not guilty if the State failed to prove its case beyond a reasonable doubt prove that the jurors were impartial. As we suggested in Williams, however, positive responses to this kind of effort at rehabilitation are not evidence of impartiality. “Few people would show the kind of contempt for a judicial officer that would have been necessary to persist in her admissions of bias under those circumstances.” Williams, 262 Mont. at 536, 866 P.2d at 1103. Reliance by the State and District Court on those kinds of answers from jurors disregards this Court’s instruction in Williams, which states that coaxed recantations of admissions of bias are merely fodder for appeal and ultimately the source of major expense and inconvenience. It is not a district court’s role to rehabilitate jurors whose spontaneous, and thus most reliable and honest, responses on voir dire expose a serious question about their ability to be fair and impartial. Nor are we willing to disregard the dangers of such an approach under the auspices of judicial discretion.
¶29 Finally, we dismiss the State’s assertion that the jurors’ responses were not grounds to remove them for cause, based on the fact that they were the result of allegedly leading questions from DeVore’s counsel, and that they occurred after the State emphasized to jurors that the voir dire process is about “truth-telling.” The State seems to imply that the jurors were not at fault for their answers, and that the answers should be qualified, given the type of leading questions that were posed, and that the jurors should be commended for their willingness to give honest answers that reflect the views of many citizens.
¶30 “The purpose of voir dire in a criminal proceeding is to determine the existence of bias and prejudice on the part of prospective jurors and to enable counsel to intelligently exercise his peremptory challenges.” Great Falls Tribune, 186 Mont. at 440, 608 P.2d at 120. In general, there is no rule that prohibits counsel from using leading questions to uncover prejudice in prospective jurors. See State v. Gray (N.C. 1997), 491 S.E.2d 538, 545. Here, the State did not object to the questions posed by DeVore’s counsel, and our review discloses nothing inherently inappropriate about the questions asked.
¶31 Furthermore, while we acknowledge the State’s contention that jurors Brumfield and Schwehr gave truthful answers throughout the examination by all the respective parties, and that their statements reflected honest beliefs about both DeVore’s guilt and their ability to be impartial, that does not change the fact that the responses suggested a serious question about their ability to be entirely fair and impartial. We agree unequivocally with the State that neither Brumfield nor Schwehr is at fault in this case. The fact that they expressed a conceptual difficulty with the presumption of innocence, or that they tend to have faith in police investigation to the point that it would affect their partiality, is not unique among citizens and they have every right to these views. Nonetheless, a defendant’s right to a fair and impartial jury means that Brumfield and Schwehr, regardless of the propriety of their beliefs or their absolute right to maintain them, should have been dismissed by the District Court for cause. The State has provided no basis for its claim that jurors will somehow be discouraged from being fully honest in their responses during voir dire if we conclude here that the District Court abused its discretion when it refused to disqualify Brumfield and Schwehr for cause. Ultimately, despite a juror’s best intentions and his professed willingness to follow a district court’s orders, there is an abuse of discretion when a district court chooses to ignore a juror’s expressed statements that he believes the defendant to be guilty of something in favor of its own attempt to rehabilitate the juror.
¶32 The second part of our inquiry in this case involves the effect of our conclusion that the District Court abused its discretion when it denied DeVore’s motion to dismiss the two jurors.
¶33 Section 46-20-701, MCA, states that a defendant’s conviction will only be overturned on appeal if the error was prejudicial. In Williams, we held that prejudice will be presumed if the following occurs: (1) a district court abuses its discretion by denying a challenge for cause to a prospective juror; (2) the defendant uses one of his peremptory challenges to remove the disputed juror; and (3) the defendant exhausts all of his peremptory challenges. See Williams, 262 Mont. at 538, 866 P.2d at 1103. We must, however, balance the presumption “against the totality of the circumstances in each case to determine whether the error contributed to the defendant’s conviction.” Williams, 262 Mont. at 538, 866 P.2d at 1103. Here, we preliminarily note that DeVore exhausted all of his peremptory challenges, two of them to remove Brumfield and Schwehr. We therefore presume, pursuant to Williams, that DeVore was prejudiced by the District Court’s decision.
¶34 DeVore contends on appeal, however, that we should disregard that portion of Williams which requires us to consider the totality of the circumstances in order to confirm that the defendant has in fact suffered the presumed prejudice. He proposes instead that as a matter of law, a defendant who has been forced to use one or more of his peremptory challenges to remove a juror whom the district court should have removed for cause should have his conviction overturned without further evaluation of the State’s case against him. He bases his position on the dual notion that the rights provided to defendants by § 46-16-115, MCA, and Article II, Section 24, of the Montana Constitution, are not conditioned on the strength of the defendant’s case, and that in a civil context, a party who has wrongly been denied an equal number of peremptory challenges does not have an obligation to show prejudice. The State, on the other hand, suggests that the Williams standard is appropriate, and that when applied here, the totality of the evidence against DeVore is so overwhelming that the District Court’s decision not to remove the jurors did not have any effect on the jury’s verdict.
¶35 As DeVore correctly points out, our presumption of harm due to a district court’s erroneous refusal to remove jurors for cause is based on the disadvantage inherent when a defendant has fewer peremptory challenges than the State. See Williams, 262 Mont. at 537, 866 P.2d at 1103. However, we expressly rejected in Williams the rule that denial of the same number of peremptory challenges to the defendant as to the State constitutes prejudicial error as a matter of law and requires automatic reversal. See Williams, 262 Mont. at 537-38, 866 P.2d at 1103. Instead, we considered the totality of the circumstances in that case. See Williams, 262 Mont. at 538-39, 866 P.2d at 1104.
¶36 As DeVore also points out, the rule in a civil context is that when one party has been erroneously denied an equal number of peremptory challenges, we presume prejudice as a matter of law and automatically grant the offended party a new trial. See King v. Special Resource Mgmt., Inc. (1993), 256 Mont. 367, 374, 846 P.2d 1038, 1042, overruling Leary v. Kelly Pipe Co. (1976), 169 Mont. 511, 549 P.2d 813 (requiring a demonstration of prejudice to reverse a jury verdict after a district court error in the grant of peremptory challenges); see also Bueling v. Swift, 1998 MT 112, 288 Mont. 472, 958 P.2d 694. We recognize that our justice system demands that at least as much if not more protection be given to criminal defendants than to civil litigants and that, as such, the discrepancy between our rules in Williams and King requires some explanation.
¶37 The role of a jury in both civil and criminal cases is to resolve disputed issues of fact. See § 3-15-104, MCA (“A trial jury is a body of persons... sworn to try and determine, by verdict, a question of fact.”); § 25-7-103, MCA (“All questions of fact... are to be decided by the jury ....”); § 26-1-202, MCA (“If a trial is byjury, all questions of fact... must be decided by the jury ....”); § 46-16-103(2), MCA (“Questions of law must be decided by the court and questions of fact by the jury....”). It follows that where there are no disputed issues of fact, the jury, and therefore the potential influence of its individual constituents, “biased” or not, is inconsequential to the final outcome of the case. On the other hand, where issues of fact do exist, the jury is the ultimate trier of the case and fairness requires that both parties have equal opportunity to shape the jury’s composition by being provided an equal number of peremptory challenges. However, prejudice to a party from an erroneous denial of a challenge to a juror for cause can only occur if a question of fact exists.
¶38 Theoretically, in a civil context, cases which present no issue of fact should not reach a jury. For example, if a plaintiff files suit and supports his claim with evidence, and the defending party fails to present evidence that a genuine issue of fact exists (or to dispute the plaintiffs legal claim), the plaintiff may be entitled to summary judgment as a matter of law, in which case a jury is never called upon to determine the issue. Rule 50, M.R.Civ.P., motions for judgment as a matter of law similarly permit either party to seek a final judgment from the district court when no issue of fact is established.
¶39 Criminal cases are different. On the one hand, § 46-16-403, MCA, authorizes a district court, upon either its own initiative or a motion by the defendant, to dismiss the case against a defendant before the matter reaches a jury based on its determination that the factual evidence is insufficient to support a guilty verdict. However, our criminal justice system does not provide the State a comparable procedural method by which to prevail absent submission of the evidence to the jury. That is, no matter how uncontroverted the State’s evidence, our system guarantees a defendant the right to have his guilt determined by a jury of his peers. See Art. II, Sec. 24 and 26, Mont. Const. The effect of this protection is that a jury may occasionally be called upon to decide a criminal case even in the absence of a genuine issue of fact. Such was the case in Williams where the State’s evidence was “basically uncontradicted,” due to the defendant’s failure either to rebut the State’s evidence or to present any testimony of his own. Williams, 262 Mont. at 539, 866 P.2d at 1104; see also State v. Nichols (1987), 225 Mont. 438, 448, 734 P.2d 170, 176 (holding that voir dire error was harmless because the defendant’s trial testimony required any juror to convict on the charges).
¶40 We must therefore account for the possibility that the jury’s verdict was strictly a product of the evidence and that the District Court’s error might have played no part whatsoever in what was an already uncontroverted matter according to the facts in the record. When error has not had a material impact on the result of a case, there is very little reason, beyond the unjustifiable punitive impact on the State and/or the district court, for the reversal of a defendant’s conviction. This rationale underlies our well-established harmless error analysis, whereby a district court’s error will be deemed harmless and a defendant’s conviction will be upheld if the error did not contribute to the conviction. Accordingly, we reject DeVore’s suggestion that we should no longer consider the totality of the circumstances in each case to determine whether the error contributed to the defendant’s conviction, and that defendants who can show an abuse of discretion by the district court during voir dire should have their conviction overturned as a matter of law.
¶41 We reiterate here our rule from Williams that we must balance the presumption “against the totality of the circumstances... to determine whether the error contributed to the defendant’s conviction.” Williams, 262 Mont. at 538, 866 P.2d at 1103. In light of the presumption and our above analysis, a defendant on appeal need not show actual prejudice. Rather, he need only establish that the jury was charged with the determination of a factual issue important to the charges against him.
¶42 The record in this case reveals that, unlike Williams, DeVore gave testimony which created substantial and important issues of fact for the jury’s determination. First, DeVore’s primary defense involved his state of mind. The assault charges and the attempted deliberate homicide charge each required that the State prove that DeVore acted purposely and knowingly. DeVore conceded his conduct, but challenged the State’s claim that he intended to injure the four alleged assault victims and to kill Scott. As such, DeVore’s own testimony regarding his intent directly contradicted the evidence offered by the State to show that DeVore intended to injure and kill people that night. Second, there was conflicting testimony about whether DeVore actually pointed the gun at the four individuals in the hotel. Each issue depended heavily on the jury’s assessment of DeVore’s credibility, and the conflicting testimony clearly left to the jury the ultimate determination of whether DeVore acted in violation of the alleged statutes.
¶43 As we stated, DeVore need not show that a particular juror whom he would have removed if given the appropriate number of peremptory challenges led to his conviction. He must only demonstrate that in the totality of the circumstances important factual issues were determined by the jury, which confirms our presumption that he was prejudiced by the District Court’s abuse of discretion during voir dire. The record demonstrates that the jury did decide important factual issues here. Accordingly, we vacate the judgment of the District Court and remand to the District Court for retrial of the charges of which the defendant was convicted.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, LEAPHART, NELSON, REGNIER and GRAY concur.
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On December 15,1997, it was the sentence and judgment of this court as follows: 1. For the offense of peijury, the defendant shall be sentenced to the Department of Corrections for a period of six (6) years. The last two (2) years of such term shall be suspended. 2. Against the sentence imposed above, the defendant shall be given credit for eighteen (18) days served in the Fergus County Jail. 3. This court recommends that the defendant volunteer for the Department of Corrections Boot Camp Program. Should the defendant successfully complete such program, he may petition this court for a reduction in sentence pursuant to Section 53-30-402, Montana Code Annotated. 4. During the suspended portion of this sentence, the defendant shall be under the supervision of the Adult Probation and Parole Bureau, and shall abide by all rules and regulations of such bureau. 5. The defendant shall obtain a chemical dependency evaluation, with some evaluator licensed by the State of Montana. The defendant shall be obligated to follow all treatment recommendations. The defendant shall sign a release of information, allowing his supervising officer and Department staff access to information to determine compliance herewith. This corut recommends that the Department of Corrections arrange for such evaluation to take place as soon as possible. 6. The defendant shall be obligated to reimburse Fergus County for the costs of his court appointed counsel in this matter. Such costs are the amount of $4,595.02. This amount shall be paid in monthly installments of $100.00, with the first such installment being due and payable within 60 days of the defendant’s release from custody of the department of corrections; whether such be parole or probation; or upon obtaining employment in any pre-release setting. Subsequent monthly installments of the same amount shall be due in each succeeding month. 7. According to Section 46-18-236, MCA, the defendant shall pay the mandatory surcharge of $20.00. Such amount shall be payable within 30 days of the defendant’s release from custody of the department; again upon being granted probation or parole or upon obtaining any employment in a pre-release setting. 8. The defendant shall be required to pay the $5.00 user court technology fee. Such shall be due and payable at the same time as the mandatory surcharge specified in the preceding paragraph. 9. Pursuant to séction 46-23-1031, MCA, the defendant shall pay the mandatory supervision fee of $120.00 for each year of supervision. 10. All amounts to be paid by the defendant shall be paid by cash or money order to the clerk of this court, whose address is P.O. Box 1074, Lewistown, Montana 59457. The defendant shall be required to pay the cost of supervision of restitution to the clerk of this court, which shall be in an amount equal to ten percent (10%) of the amount of restitution collected by the clerk. However, the amount due the clerk shall not exceed $250.00. 11. This court makes a specific finding that the defendant has the ability to pay the amounts required herein. The defen dant is able bodied and capable of earning sufficient income to pay such amounts.
Done in open Court this 4th day of June, 1998.
DATED this 17th day of June, 1998.
On June 4,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by attorney Rachel Wright. The state was represented by Fergus County Attorney Thomas P. Meissner.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton
The Sentence Review Board wishes to thank attorney Rachel Wright for representing Danny M. Dahlin in this matter and also Fergus County Attorney Thomas P. Meissner for representing the State.
|
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On October 15,1997, it was the judgment of the court that defendant’s prior suspended sentence for the offense of Criminal Mischief, a Felony, is hereby revoked and that the defendant be and he is hereby sentenced to a term of seven (7) years in the Montana State Prison at Deer Lodge, Montana. The sentence shall run concurrently with the sentences imposed in Cause No. 6976 and Cause No. 7013. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this order, except that he shall receive credit from December 13,1993, through December 15,1993; and from July 14,1997, through date of sentencing, October 8,1997, for ninety (90) days jail time which he has previously served.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Earl Ray Johnston for representing himself in this matter.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 Keystone, Inc., filed in the District Court of the Thirteenth Judicial District in Yellowstone County a complaint against Triad Systems Corp. for alleged breach of contract and other duties. In accordance with one of the contract provisions, Triad demanded that the parties arbitrate their dispute in California. Keystone filed a motion to compel arbitration in Montana, and Triad filed a cross-motion to compel arbitration in California. The District Court denied Keystone’s motion and ordered the parties to submit to arbitration in California. Keystone appeals. We reverse the order of the District Court. ¶2 The sole issue on appeal is whether the contract provision which requires arbitration in California is void because it violates § 28-2-708, MCA, or § 27-5-323, MCA.
FACTUAL BACKGROUND
¶3 Triad Systems Corporation is a California corporation engaged in the sale of computer hardware, software, and support systems. Keystone, Inc., is a Montana corporation engaged in the distribution of automotive parts and supplies in Billings, Montana.
¶4 In November 1994, Keystone and Triad entered into a contract by which Keystone agreed to purchase a computer system from Triad for approximately $250,000. The system allegedly failed to work, and Triad was unable to correct the problems to Keystone’s satisfaction. Keystone requested that Triad take back its computers and that it refund Keystone’s payment. Triad refused.
¶5 In November 1996, Keystone filed a complaint against Triad in the District Court in which it alleged breach of warranty, breach of contract, negligence, and negligent misrepresentation. In response, Triad contended that pursuant to the parties’ contract, they were required to arbitrate any dispute between them before the American Arbitration Association (AAA) in San Francisco, California. Keystone notified Triad that it was willing to arbitrate the matter before the AAA, but only in Montana.
¶6 In reliance on § 28-2-708, MCA, Keystone moved the District Court to compel arbitration in Montana. Triad filed a cross-motion to compel arbitration in California in accordance with the terms of the contract. The District Court reasoned that § 28-2-708, MCA, was preempted by the Federal Arbitration Act (FAA), and that as such, its only choice was to enforce the parties’ agreement, which called for the parties to arbitrate in California. Accordingly, it granted Triad’s motion to compel arbitration in California.
DISCUSSION
¶7 Is the contract provision which requires arbitration in California void because it violates § 28-2-708, MCA, or § 27-5-323, MCA?
¶8 We review a district court’s conclusion of law to determine whether it is correct. See Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.
¶9 At the outset, it is necessary to discuss whether Montana law is even applicable to our interpretation of this contract. The terms of the contract provide that it “will be governed by and construed in accordance with the laws of the United States and the State of California.” Triad contends that because the parties made a valid agreement to interpret the contract according to the law of California, the question of how Montana law affects the parties’ rights is irrelevant. Keystone acknowledges the contract’s choice of law provision. However, it contends that this Court’s decision in Casarotto v. Lombardi (1994), 268 Mont. 369, 886 P.2d 931, rev’d on other grounds,Doctor’s Assocs., Inc. v. Casarotto (1996), 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902, as it pertains to the validity of choice of law provisions, governs this case and resolves the question so that Montana law should apply to our interpretation of the contract.
¶10 In Casarotto, we held that the Restatement (Second) of Conflict of Laws § 187(2) (1971) applies when we are faced with the question of whether to give effect to a contractual choice of law by the parties. The relevant portion of § 187(2) states:
The law of the state chosen by the parties to govern their contractual rights and duties will be applied ... unless ...
(b)application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
We rely on § 188 to determine which state has a materially greater interest in the particular contract issue and which state’s law would apply in the absence of an effective choice of law by the parties. The factors from § 188 that we consider include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.
Restatement (Second) of Conflict of Laws § 188(2). Based on the facts in Casarotto, we concluded that: (1) Montana had a materially greater interest in the particular contract issue than Connecticut, the state whose law the parties had contracted to apply; (2) Montana law would apply absent an effective choice of law by the parties; and (3) application of Connecticut law would be contrary to a fundamental public policy of Montana. See Casarotto, 268 Mont. at 375-77, 886 P.2d at 935-36.
¶11 Triad has raised no challenge to our analysis in Casarotto nor made any suggestion that those same principles should not govern when a choice of law question arises. Moreover, the U.S. Supreme Court’s opinion reversing the Casarotto decision did not address that part of the opinion which dealt with choice of law. Therefore, that part of our decision is still valid precedent.
¶12 The record in this case suggests that the parties eventually entered into their contract after many months of negotiation in which officials from both companies traveled back and forth between California and Montana. Most significantly, however, the contract was performed almost exclusively in Montana. Triad developed the computer system to coordinate Keystone’s distribution of auto parts across Montana, installed the system in Billings, and trained Keystone employees in Montana to use the system. Furthermore, the subject matter of the contract is located in Montana. We conclude, there fore, that Montana has a materially greater interest in the contract issue than California, and that its law would apply in the absence of an effective choice of law provision.
¶13 The next issue is whether an application of California law would be contrary to a fundamental public policy of Montana. In both Rindal v. Seckler (D. Mont. 1992), 786 F. Supp. 890, 894, and State ex rel. Polaris Industries, Inc. v. District Court (1985), 215 Mont. 110, 695 P.2d 471, the Federal District Court and this Court, respectively, noted strong public policy considerations in Montana for voiding choice of forum provisions. Although those cases involved contracts generally (as will be discussed), those same public policy considerations apply to choice of forum provisions in arbitration contracts.
¶14 Therefore, to the extent that the application of California law would evade Montana’s public policy regarding choice of forum provisions in contracts, we hold that the provision in this contract requiring the application of California law is void.
¶15 The parties agree on most relevant facts in this case. They both acknowledge that they executed a contract that requires that all disputes between them be submitted to arbitration before the AAA in San Francisco, California. They further agree that regardless of where their dispute is resolved, it should be settled by arbitration pursuant to the rules of the AAA.
¶16 The basis of the parties’ disagreement was the issue of whether § 28-2-708, MCA, applies to the arbitration provision in their contract and renders void the forum selection clause that requires the parties to arbitrate in California. Section 28-2-708, MCA, provides:
Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights is void. This section does not affect the validity of an agreement enforceable under Title 27, Chapter 5.
Keystone contends that, based on the statute, any forum selection clause that would require Montana residents to resolve disputes outside Montana when the usual procedure would be to resolve the dis pute in Montana, is void, and that the statute applies to arbitration provisions, as well as other contracts. Triad, on the other hand, asserts that the statute does not apply to arbitration agreements. In addition to the preemption position taken by the District Court, Triad relies on what it contends is an express exclusion in the last sentence of the statute and on its assumption that arbitration is not a usual proceeding in the ordinary tribunals.
¶17 Section 28-2-708, MCA, has historically been applied for two distinct purposes: (1) to protect Montana residents from having to litigate outside of Montana; and (2) to invalidate pre-dispute arbitration agreements.
¶ 18 The first purpose reflects the fundamental public policy of this state to protect the “substantive rights of Montana residents to seek redress in the courts of [Montana].” Rindal, 786 F. Supp. at 894; see also Polaris, 215 Mont. 110, 695 P.2d 471. Accordingly, § 28-2-708, MCA, has been applied to invalidate forum selection clauses that would have the effect of forcing Montana residents to litigate disputes outside of Montana. See Rindal, 786 F. Supp. 890; Polaris, 215 Mont. 110, 695 P.2d 471. Rindal and Polaris involved contracts that required all disputes to be resolved through the courts of Denver, Colorado, and Minneapolis, Minnesota, respectively. In each case, the forum selection clause was held to constitute “an improper restraint upon the [party’s] exercise of its rights to enforce the... contract by a ‘usual proceeding" in the ‘ordinary tribunals’ of Montana.” Rindal, 786 F. Supp. at 894 (citing Polaris, 215 Mont. at 111, 695 P.2d at 472).
¶ 19 Although neither Rindal nor Polaris dealt with an arbitration agreement, Keystone maintains that the interest which § 28-2-708, MCA, was intended to protect, as applied in those cases, is as applicable to arbitration provisions as to contracts in general and, therefore, that we should apply the statute equally in the arbitration context to avoid anomalous results.
¶20 We conclude that whether or not § 28-2-708, MCA, pertains to arbitration contracts, § 27-5-323, MCA, provides the same protection in that context. That statute, which pertains specifically to arbitration agreements, provides in relevant part as follows:
No agreement concerning venue involving a resident of this state is valid unless the agreement requires that arbitration occur within the state of Montana. This requirement may only be waived upon the advice of counsel as evidenced by counsel's signature thereto.
¶21 There is no indication from the face of the contract at issue that the right to have disputes arbitrated in Montana was waived based on the advice of counsel.
¶22 Accordingly, we hold that the provision at issue which requires that a Montana resident arbitrate disputes related to a contract to be performed in Montana at a location outside Montana is void because it violates Montana law.
¶23 Our only remaining inquiry is whether Montana’s controlling statutory law is preempted by the FAA which unquestionably applies and provides, in relevant part:
A written provision in ... a contract... to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (1994). The FAA generally preempts state law which restricts the application of arbitration agreements. See Doctor’s Associates, Inc. v. Casarotto (1996), 517 U.S. 681, 686-87, 116 S. Ct. 1652, 1656, 134 L. Ed. 2d 902, 908-09; Scherk v. Alberto-Culver Co. (1974), 417 U.S. 506, 510-11, 94 S. Ct. 2449, 2453, 41 L. Ed. 2d 270, 276. However, when a state law does not conflict with the FAA so as to frustrate the objectives of Congress, it is not necessarily preempted. See Volt Info. Sciences, Inc. v. Board of Trustees of the Leland Stanford Jr. Univ. (1989), 489 U.S. 468, 477-78, 109 S. Ct. 1248, 1255, 103 L. Ed. 2d 488, 499. State law may be applied in spite of the FAA’s preemptive effect “if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Perry v. Thomas (1987), 482 U.S. 483, 492-93 n.9, 107 S. Ct. 2520, 2527, 96 L. Ed. 2d 426, 437; see also Casarotto, 517 U.S. at 686-87, 116 S. Ct. at 1656, 134 L. Ed. 2d at 909.
¶24 Keystone contends that § 28-2-708, MCA, governs the enforceability of contracts generally and, by logical extension, argues that applying the same restriction to arbitration agreements does not frustrate or conflict with the FAA. Therefore, it contends that the FAA should not preempt the statutes in question. Triad, like the District Court, relies on the general preemptive power of the FAA to avoid the effect of Montana’s statutes. Upon review of the relevant statutes and case law, however, we conclude that the FAA does not preempt § 27-5-323, MCA.
¶25 In Casarotto, the U. S. Supreme Court clarified the kind of state laws which are preempted by the FAA. It stated:
Courts may not ... invalidate arbitration agreements under state laws applicable only to arbitration provisions. By enacting § 2, we have several times said, Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed “upon the same footing as other contracts.” Montana’s § 27-5-114(4) directly conflicts with § 2 of the FAA because the State’s law conditions the enforceability of arbitration agreements on compliance with a special notice requirement not applicable to contracts generally. The FAA thus displaces the Montana statute with respect to arbitration agreements covered by the Act.
Applying § 27-5-114(4) here... would not enforce the arbitration clause in the contract between DAI and Casarotto; instead, Montana’s first-page notice requirement would invalidate the clause. The “goals and policies” of the FAA, this Court’s precedent indicates, are antithetical to threshold limitations placed specifically and solely on arbitration provisions. Section 2 “mandate[s] the enforcement of arbitration agreements,” “save upon such grounds as exist at law or in equity for the revocation of any contract.” Section 27-5-114(4) of Montana’s law places arbitration agreements in a class apart from “any contract,” and singularly limits their validity. The State’s prescription is thus inconsonant with, and is therefore preempted by, the federal law.
Casarotto, 517 U.S. at 687-88, 116 S. Ct. at 1656-57, 134 L. Ed. 2d at 909-10 (citations omitted). Based upon this language and an earlier reference in the Supreme Court’s opinion, we read Casarotto to stand for the proposition that a state law may not “place arbitration clauses on an unequal ‘footing’ ” from general contract provisions. Casarotto, 517 U.S. at 686, 116 S. Ct. at 1655, 134 L. Ed. 2d at 908 (quoting Allied-Bruce Terminix Cos., Inc. v. Dobson (1995), 513 U.S. 265, 281, 115 S. Ct. 834, 843, 130 L. Ed. 2d 753, 769).
¶26 As we stated above, § 28-2-708, MCA, invalidates choice of forum provisions in contracts generally. Section 27-5-323, MCA, does the same to arbitration agreements. Montana law, therefore, does not distinguish between forum selection clauses which are part of contracts generally and forum selection clauses found in agreements to arbitrate. Such a distinction, if one existed, would certainly manifest the kind of unequal treatment that Casarotto prohibits. The lack of such a distinction is evidence that the statute does not conflict with the FAA.
¶27 We are further persuaded that Montana’s statutes are consistent with the FAA because neither statute nullifies either party’s obligation to arbitrate their dispute. Rather, they preserve the obligation to arbitrate and constitute no more of an intrusion than on any other general contract entered into in this State. That ultimately distinguishes this case from those cases relied on by Triad in which application of the respective state laws invalidated altogether the parties’ agreements to arbitrate. See Allied-Bruce, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753; Scherk, 417 U.S. 506, 94 S. Ct. 2449, 41 L. Ed. 2d 270; see also Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902.
¶28 The mere fact that in this case the statutes limit in part the enforceability of the agreement and nullify an agreement to resolve the parties’ disputes in California does not create a conflict with the purpose of the FAA.
¶29 Accordingly, we hold that neither § 28-2-708, MCA, nor § 27-5-323, MCA, are preempted by the FAA. In addition, we hold that the combined effect of these statutes, as applied to the arbitration provision in this case, invalidates only that portion of the agreement which requires Keystone to arbitrate the dispute outside of Montana. We reverse the order of the District Court that requires the parties to arbitrate in California, and order that arbitration occur in Montana.
¶30 This case is remanded to the District Court for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, LEAPHART, REGNIER, NELSON and GRAY concur.
. We draw no conclusion about the applicability of California law to any other aspect of the parties’ contractual obligations since no other issue is before us.
. Title 27, Chapter 5, of the Montana Code Annotated includes the Montana Uniform Arbitration Act.
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On February 11,1998, Shawntel Booth was convicted in this court of the crime of Aggravated Assault (Felony). It is therefore ordered, adjudged and decreed that the said Shawntel Booth be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of twenty (20) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 212 days. It is recommended that defendant Shawntel Booth be considered for placement at the Treasure State Correctional Training Center (boot camp). It is further ordered that should the defendant be paroled, conditions shall apply as stated in the February 11,1998judgment. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) to the Treasurer of this County. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above-conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.
Done in open Court this 4th day of June, 1998.
DATED this 17th day of June, 1998.
On June 4,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton
The Sentence Review Board wishes to thank Shawntel M. Booth for representing himself in this matter.
|
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] |
On June 24,1998, the Defendant was sentenced to ten (10) years in the Montana State Prison, with five (5) years suspended.
On November 6, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and advised of his right to be represented by counsel. The Defendant proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Mr. Lindauer for representing himself in this matter.
|
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On January 22,1998, the Defendant was sentenced to the following: BDC 97-288. Count I: ten (10) years to the Montana Department of Corrections, with all time suspended, to ran consecutively to the sentence imposed in BDC 97-290 and concurrently with the sentence imposed in BDC 97-291; BDC 97-290: five (5) years to the Montana Department of Corrections; BDC 97-291: ten (10) years to the Montana Department of Corrections, with all time suspended, to run consecutively to the sentence imposed in BDC 97-290; BDC 97-297. Count I: ten (10) years to the Montana Department of Corrections, with all time suspended, to run consecutively to the sentence imposed in BDC 97-290 and concurrently with the sentence imposed in BDC 97-291, Count II: eighty-two (82) days in the Lewis and Clark County Jail, to run concurrently with the sentence in BDC 97-290, Count III: ten (10) years to the Montana Department of Corrections, with all time suspended, to run consecutively to the sentence imposed in BDC 97-290 and concurrently with the sentence imposed in BDC 97-291, Count IV: ten (10) years to the Montana Department of Corrections, with all time suspended, to run consecutively to the sentence imposed in BDC 97-290 and concurrently with the sentence imposed in BDC 97-291. The offenses charged in Cause Nos. BDC 97-289 and 97-292 were dismissed. Credit was given for 82 days already served.
Done in open Court this 18th day of September, 1998.
DATED this 29th day of October, 1998.
On September 18,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Lucas Foust. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to five (5) years to the Department of Corrections, with the modification that the suspended portions of the sentences in Cause Nos. 97-288,97-291, and 97-297 be served concurrently to the sentences in Cause Nos. 97-290 and 97-291.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Lucas Foust for representing Ms. Jester in this matter.
|
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] |
On March 20,1998, the Defendant was sentenced to ten (10) years in the Montana State Prison for the offense of Criminal Sale of Dangerous Drugs (Marijuana) - Count I. This period is to be served concurrently with the sentence the Defendant is currently serving in Cause No. DC 97-005(a). For the offense of Count II, Criminal Sale of Dangerous Drugs (Marijuana), the Defendant is sentenced to ten (10) years in the Montana State Prison. This period of incarceration is suspended in its entirety and is to be served consecutive to the sentences imposed for Count I and in Cause No. DC 97-005(a). The Defendant is hereby designated a Persistent Felony Offender, as such it is further ordered that the Defendant be incarcerated at the Montana State Prison for ten (10) years. This period of incarceration is suspended in its entirety and is to be served consecutive to the sentences imposed for Counts I and II and in Cause No. DC 97-005(a). The Defendant is ineligible for parole until he completes the prison’s Criminal Thinking Errors, Moral Reconation Therapy, and chemical dependency treatment programs and follows all resultingrecommendations to the satisfaction of his supervising officer and treatment providers.
On August 14,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 14th day of August, 1998.
DATED this 1st day of September, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that one (1) year be suspended on Count I of DC-97-261(b).
The reason for the modification is made on the recommendation of Ed Corrigan, of the Flathead County Attorney’s Office.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Lance R. Gowan for representing himself in this matter.
|
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 This is an appeal by Gary Gottfried (Gottfried), former lessee of the Department of Natural Resources and Conservation (DNRC), from a June 5,1998 Order on Petition for Judicial Review and Judgment entered by the Twelfth Judicial District Court, Chouteau County. The District Court set aside DNRC’s determination of value of Gottfried’s improvements on the land subject to the lease and entered judgment for the sum of $8,101.22, in favor of Gottfried and against William Meeks (Meeks), the successor DNRC lessee. We affirm.
Background
¶2 Gottfried formerly leased 640 acres of farm land in Chouteau County under DNRC Lease No. 2724. Gottfried’s lease was canceled in January 1996, for delinquency in the 1995 crop share payment. Meeks became the prospective new lessee. Section 77-6-305, MCA, requires that before a lease is issued to the new lessee, the lessee (Meeks) must show that the former lessee (Gottfried) has been paid for the value of his improvements (absent the former lessee electing to remove the improvements).
¶3 Gottfried and Meeks were unable to agree on the value of the improvements. Accordingly, under § 77-6-306, MCA, a panel of arbitrators was chosen to ascertain and fix the value. The arbitrators valued the improvements at $2,168. Dissatisfied with this valuation, Gottfried appealed to DNRC under § 77-6-306(3), MCA. DNRC determined the value of the improvements to be $22,225.59. Meeks then sought judicial review of DNRC’s decision under § 77-6-306(4), MCA.
¶4 In the District Court proceedings, DNRC moved for summary judgment. Gottfried moved for intervention and joined DNRC’s motion. Following a hearing in November 1997, the District Court denied Gottfried’s motion to intervene and DNRC’s and Gottfried’s motion for summary judgment.
¶5 The three employees who made DNRC’s decision, Dave Mousel, Barny Smith and Craig Roberts, were then deposed and their depositions were filed with the court. Following the submission of legal memoranda by Meeks and Gottfried, but without further hearing, the District Court entered its aforementioned decision. The court took into consideration the depositions of the three DNRC employees. This appeal followed.
Issues
¶6 We address two issues on appeal:
¶7 1. Did the District Court err in considering the depositions of the three DNRC employees in its judicial review of the administrative record?
¶8 2. Did the District Court correctly determine that DNRC’s valuation of Gottfried’s improvements was clearly erroneous?
Issue 1.
Did the District Court err in considering the depositions of the three DNRC employees in its judicial review of the administrative record?
¶9 We review the District Court’s determination to receive and consider the depositions of the three DNRC employees as a question of law over which our review is plenary. Bean v. Montana Bd. of Labor Appeals, 1998 MT 222, ¶ 11, 290 Mont. 496, ¶11, 965 P.2d 256, ¶ 11 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). Either the court erred in doing so or it did not.
¶10 Gottfried argues that the District Court erred by reviewing, de novo, DNRC’s valuation of his improvements rather than simply upholding the agency’s exclusive review authority under § 77-6-306(3), MCA, and crediting the expertise of the agency in this matter. According to Gottfried, the court over-reached its authority on judicial review, first, by allowing Meeks to depose the three DNRC employees and permitting those depositions to become part of the record and, second, by failing to limit its scrutiny to determine whether a fair procedure was used, whether questions of law were properly decided, and whether the agency decision was supported by substantial evidence. We do not agree.
¶11 We addressed precisely this same issue in Evertz v. State Dept. of State Lands (1991), 249 Mont. 193, 815 P.2d 135. In that case, Petitioner Ted Evertz leased approximately 1500 acres in Prairie County. Due to mismanagement of the property, Evertz’s lease was canceled and transferred to another party. Pursuant to § 77-6-302, MCA, Evertz sought compensation for improvements to the land and, since the parties could not agree on a value, a panel of arbitrators was chosen to decide the value of the improvements. Evertz, 249 Mont. at 195, 815 P.2d at 137.
¶12 The arbitrators assigned avalué of $2,800 to the improvements. Evertz, who valued the improvements at more than $53,000, appealed the decision to the Department of State Lands. An employee for the Department reviewed the arbitrators’ findings and prepared a 16 page document detailing the improvements claimed by Evertz. Relying on these findings, the Department affirmed the arbitrators’ decision. Evertz, 249 Mont. at 195, 815 P.2d at 137.
¶13 Evertz petitioned the District Court for judicial review. He maintained that the record upon review should consist solely of his deposition and the deposition of the person who prepared the 16 page document for the Department. Evertz argued that the record offered by the Department was compiled without his input and that he was unable to cross-examine any of the people who had supplied the information. Evertz, 249 Mont. at 195-96, 815 P.2d at 137-38.
¶ 14 The District Court determined that all testimony and documentation created by the arbitrators and the Department in reaching their valuation should be included in the record. The court gave Evertz the opportunity to cross-examine any or all of the witnesses relied on and submit their deposition testimony, but Evertz chose not to do so. The court found that the decision of the arbitrators and the document prepared by the Department were more credible than Evertz’s assertions. Thus, the court affirmed and directed that the successors in interest to Evertz pay him $2,800 as compensation for the improvements to the land. Evertz, 249 Mont. at 195-96, 815 P.2d at 137-38.
¶15 On appeal to this Court, Evertz contended that he was entitled to a trial de novo before the District Court and that the procedure followed at the agency level and upon judicial review denied him due process. We concluded that there is no indication in § 77-6-306, MCA, that the judicial review contemplated by subsection (4) of that statute is to be a trial de novo. We stated, however, that the lower court is in a better position to understand how a decision was reached if it is able to review all of the material used to reach that decision. Thus, we held in Evertz that the District Court did not err in considering all the documentation regarding the leasehold. Evertz, 249 Mont. at 195-96, 815 P.2d at 137-38.
¶16 In that same fashion, in the case subjudice, Meeks did not demand, and the District Court did not allow, a trial de novo. Rather, the District Court simply allowed Meeks to depose the three DNRC employees, who made the decision for DNRC, to clarify how they arrived at their decision. Gottfried was free to present further evidence as well, but he chose not to do so.
¶17 Accordingly, we hold that the District Court did not err in allowing Meeks to depose the three DNRC employees or in permitting those depositions to become part of the record. Following our holding in Evertz, we conclude that a district court can and should allow additional evidence to be presented to clarify the administrative record and to ensure that the parties have been afforded due process.
Issue 2.
Did the District Court correctly determine that DNRC’s valuation of Gottfried’s improvements was clearly erroneous?
¶18 In its June 5,1998 Order on Petition for Judicial Review and Judgment, the District Court determined that DNRC’s valuations of the improvements on the leased land totaling $22,225.59 were clearly erroneous, contrary to law, and arbitrary and capricious. Thus, the court set aside DNRC’s valuations and determined that the appropriate valuations of the improvements on the leased land totaled $8,101.22.
¶19 Gottfried contends on appeal that the District Court erred in failing to uphold DNRC’s valuations. He argues that there is substantial credible evidence within the administrative record to support the conclusion that the reasonable value of the improvements remaining in serviceable condition on the leased land is $22,225.59.
¶20 The improvements to the leased land at issue in this case are: (1) summer fallowing; (2) fertilization of fallow ground; and (3) rock picking. We will discuss each in turn.
Summer Fallowing
¶21 Gottfried chemically fallowed 281.3 acres of the leased land in April 1995, and he mechanically fallowed the land twice thereafter. DNRC valued the chemical fallow at $2,365.22 and the two mechanical fallow treatments at $2,813. While the District Court agreed with the valuation for the chemical fallow, it concluded that the valuation for the mechanical fallowing was clearly erroneous.
¶22 All parties agree that summer fallowing is an improvement under 36.25.125, ARM. The dispute arises over whether the benefit Meeks received from the summer fallowing should be a determining factor.
¶23 The District Court concluded that Meeks only owed Gottfried $2,365.22 for the chemical fallowing since Meeks did not derive any benefit from the mechanical fallowing. Gottfried contends that the court has approached the valuation process incorrectly. He argues that the purpose of the improvements statute is so that former lessees can be compensated for the reasonable value of the improvements a lessee makes to a lease formerly held by him, not solely for the reasonable value “captured” by the new lessee.
¶24 Gottfried’s lease was canceled in January 1996. DNRC did not issue Meeks a license for the land until June 12,1996, too late to raise a crop for 1996. The DNRC employees who valued the improvements for DNRC admitted in their depositions that the mechanical fallowing done by Gottfried in 1995 had little value to Meeks in 1996 because Meeks had to mechanically fallow several times to eliminate the cheat grass and noxious weeds that had grown up in the spring of 1996.
¶25 Under § 77-6-303(1), MCA, the benefit Meeks received from the summer fallowing is a determining factor. This statute provides, in pertinent part:
In determining the value of these improvements, consideration shall be given to their original cost, their present condition, their suitableness for the uses ordinarily made of the lands on which they are located, and to the general state of cultivation of the land, its productive capacity as affected by former use, and its condition with reference to the infestation of noxious weeds. [Emphasis added.]
¶26 Accordingly, we hold that the District Court correctly concluded that since Meeks did not derive any benefit from the mechanical fallowing, that valuation was clearly erroneous.
Fertilization of Fallow Ground
¶27 DNRC tested soil samples from the 281.3 acres fertilized by Gottfried and determined that there were 81 pounds more nitrate per acre than the adjacent unfertilized soil. DNRC calculated the value of the fertilizer and the cost of its application to be $19.82 per acre. Hence, DNRC determined that Meeks owed Gottfried $5,575.37 for this improvement.
¶28 The District Court concluded that, under 36.25.125(6), ARM, fertilization is an improvement only when the ground is seeded. The fact that there were no seeded acres or growing crops on the land in question is not disputed, thus, the court concluded that DNRC’s inclusion of the value of fertilization in its calculation of improvements was contrary to law.
¶29 According to the plain language of 36.25.125(6), ARM, the District Court was correct in concluding that fertilization is only an improvement when it is considered in connection with seeded acreage or growing crops:
Summer fallowing, necessary cultivation done after the last crop grown, seeding and growing crops shall all be considered improvements. The value of seeded acreage and growing crops shall be limited to costs for seeding, seedbed preparation, fertilization and agricultural labor at the prevailing rate in the area. [Emphasis added.]
¶30 Therefore, we hold that the District Court did not err in concluding that Meeks was not required to compensate Gottfried for fertilizing the leased land.
Rock Picking
¶31 Meeks argues that rock picking is routine maintenance and not an improvement. However, in a November 26, 1996 Memorandum setting forth recommendations for the valuation of the improvements, DNRC explained why rock picking is considered an improvement to the land:
Presence of rock in a field accelerates wear on machinery, causes disruption of farming operations, and results in equipment breakdowns. Breakdowns and downtime resultant from rock picked up by a combine can be especially costly, with repairs for single occur rences sometimes exceeding several thousand dollars, and resulting in days of down time while parts are sought and repairs are made. Significant unharvested crop losses from wind, hail, and rain can occur during down times, resulting in substantial indirect costs. The presence of field rock in a field thereby decreases operational efficiency and increases operating costs above that for lands not so affected.
While the District Court agreed with DNRC that rock picking is a benefit which is transferred with the land, the court disagreed with the value placed upon that improvement by DNRC.
¶32 In determining the value of rock picking, DNRC relied upon a Custom Rates Book compiled by the MSU Extension Service which provides a cost guideline for various farming practices. The listed rates for rock picking ranged from $3.74 to $50 per acre, with the statewide average being $ 15.25 per acre. The rates in this publication were last updated in 1990, thus DNRC adjusted the rates upward 15 to 20 percent to reflect inflation. This resulted in a range of $17.53 to $18.30 per acre. Hence, DNRC determined that Gottfried’s claimed rate of $20 per acre was appropriate and DNRC set the value of the rock picking on the 573.6 farmed acres at that rate.
¶33 We agree with the District Court’s conclusion that the $20 per acre rate for rock picking established by DNRC was arbitrary and capricious as it had nothing to do with the actual cost of the rock picking. As Meeks points out, while the Custom Rates Book established that the statewide average for rock picking is $15.25 per acre, the average rate for the area that includes thé leased land is $7.50 per acre.
¶34 Accordingly, we hold that the District Court did not err in concluding that the appropriate valuation for rock picking was $10 per acre.
¶35 Affirmed.
JUSTICES REGNIER, TRIEWEILER, LEAPHART and GRAY concur.
. Effective July 1,1995, the Department of State Lands was disbanded andits functions were transferred to the newly established Department of Environmental Quality and the existing Department of Natural Resources and Conservation.
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 A jury in the Fourteenth Judicial District Court, Musselshell County, found Richard Wesley Rose guilty of criminal possession of dangerous drugs and accountability for an aggravated burglary. He appeals. We reverse and remand in part and affirm in part.
¶2 The issues are whether Rose’s counsel rendered ineffective assistance by failing to request a jury instruction that the testimony of Ross Albrecht must be viewed with distrust, and whether there was sufficient evidence to convict Rose on each of the two charges against him. Because we conclude that Rose was not accorded effective assistance of counsel in relation to the burglary charge, we do not reach the issue of whether there was sufficient evidence to support his conviction of accountability for aggravated burglary.
¶3 This proceeding arose from Rose’s activities on the night of September 29-30,1996. That evening, Ross Albrecht visited Rose at his apartment in Roundup, Montana. Both men consumed beer, which Rose supplied, and prescription medication, which Albrecht supplied. At about 10:00 p.m., Rose gave Albrecht a ride to the apartment building where the mother of Albrecht’s child lived. According to Rose, Albrecht asked Rose to wait in the van while he went to see if the mother of his child was at home. According to Albrecht’s testimony at Rose’s trial, the plan was for Rose to wait in the van while Albrecht burglarized Enjoy Sports, a nearby sporting goods store in downtown Roundup.
¶4 At about 3 a.m., the Musselshell County Sheriff’s Office received a call that an alarm was sounding at Enjoy Sports. Officers found Albrecht coming out of the back door of the building. They pursued him on foot a short distance to a narrow alleyway where he was apprehended. Albrecht, who was very lethargic and “[a]ppeared to be under the influence of something,” had in his possession a handgun, a bottle of salmon eggs, and two packages of propane cigarette lighters, all of which bore Enjoy Sports price tags. He also had in his possession several items which he later said Ross had supplied to him: a black-handled Phillips tip screwdriver, a syringe containing residue of the controlled substance Diazepam, and five .22 caliber CCI brand bullet cartridges. Later that morning, the sporting goods manager of Enjoy Sports found other items in the narrow opening between buildings where Albrecht had been caught: a sharpening stone, Zigzag rolling papers, a red-handled flat-tipped screwdriver, a Western brand Bowie knife with the initials “D.R.” embossed on its sheath, and a .22 caliber Jennings semiautomatic pistol.
¶5 The inside of Enj oy Sports was trashed. The ceiling was damaged and items were overturned from what Albrecht admitted was his entry through a roof vent. Other merchandise racks were tipped over, store items were strewn about, a gun case was broken, and fourteen handguns were scattered about the floor of the store. Shots had been fired out through a front window of the store, and into a telephone box on a wall inside. Another gun, apparently thrown through a window, was found on the sidewalk in front of the store.
¶6 After Albrecht was handcuffed and placed in the back seat of a police car, officers heard a horn honking. Investigating, they found Rose sitting in the driver’s seat of the van, slumped over the steering wheel. Rose at first did not seem to notice the officers, who arrested him for DUI and helped him to a police car. In the driver’s door pocket of the van, which was owned by Rose’s live-in girlfriend, officers found a plastic baggie containing a bent spoon with the initial “R” on it’s handle. The spoon contained residue of methamphetamine.
¶7 After his arrest, and while he was in the county jail where Rose was being held, Albrecht executed two written statements in which he claimed that Rose was not involved in the burglary. He stated that he had asked Rose for a ride to the apartment building but did not tell him of his burglary plans. Albrecht later pled guilty to the burglary.
¶8 At Rose’s trial, Albrecht contradicted his earlier written statements, testifying that he had executed them under pressure from Rose. He gave a detailed description of the planning of the burglary by himself and Rose. Albrecht testified that, for purposes of the burglary, Rose supplied him with the sharpening stone, red-handled flat-tip screwdriver, Bowie knife, and the .22 caliber semiautomatic pistol in his possession when he was arrested.
¶9 Rose, who testified on his own behalf, denied that he gave any of those items to Albrecht or that he had any knowledge of Albrecht’s burglary plans. Rose speculated that Albrecht must have taken these things from Rose’s home and van and secreted them on his person when Rose was not looking.
¶ 10 The jury found Rose guilty of both offenses with which he was charged. He appeals.
Issue 1
¶11 Did Rose’s counsel render ineffective assistance by failing to request a jury instruction that the testimony of Ross Albrecht must be viewed with distrust?
¶12 “A criminal defendant is denied effective assistance of counsel if: (1) his counsel’s conduct falls short of the range reasonably demanded in light of the Sixth Amendment of the United States Constitution; and (2) counsel’s failure is prejudicial.” State v. Chastain (1997), 285 Mont. 61, 63, 947 P.2d 57, 58, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
¶13 We first consider whether the conduct of Rose’s counsel fell short of the range reasonably demanded. A jury is to be instructed on all proper occasions that “the testimony of a person legally accountable for the acts of the accused ought to be viewed with distrust.” Section 26-1-303(4), MCA. Whether a witness for the prosecution is an accomplice is generally a question for the jury, unless the fact is undisputed. State v. Johnson (1996), 276 Mont. 447, 451, 918 P.2d 293, 295. However, the State’s prosecution of one person for the same crime for which the defendant is tried constitutes an acknowledgment that the person is an accomplice to the crime. Johnson, 276 Mont. at 452, 918 P.2d at 296.
¶14 In this case, Albrecht was charged with and pleaded guilty to the offense for which the State claimed Rose was accountable. Albrecht’s testimony was that of an accomplice, because Albrecht was an accomplice as a matter of law.
¶15 In State v. Laubach (1982), 201 Mont. 226, 653 P.2d 844 overruled in part, State v. Johnson (1993), 257 Mont. 157, 848 P.2d 496, this Court reversed a conviction due to the trial court’s failure to instruct the jury based on this statutory language, even though the court had instructed the jury that it could not convict based on the testimony of one legally accountable for the crime unless the testimony was corroborated by other evidence. This Court held that the language of the statute was mandatory and the error so obvious that “the State should have confessed the error and agreed to a retrial even if the defendant did not prevail on the question of the sufficiency of the corroborating evidence.” Laubach, 201 Mont. at 231, 653 P.2d at 847.
¶16 This Court later overruled Laubach “to the extent that it requires giving the instruction in all cases involving accomplice testimony.” Johnson, 257 Mont. at 163, 848 P.2d at 499. The Court noted that the record in Johnson disclosed significant accomplice testimony and the instruction should have been given had defense counsel requested it. At issue was whether Johnson’s attorney rendered ineffective assistance for failing to request the instruction. This Court held that the accomplice instruction could have been considered inconsistent with the proffered defense that Johnson was not present at the scene of the crime. Thus, under the circumstances of the case, counsel’s decision was tactical, and the Court held that Johnson was accorded effective assistance. Johnson, 257 Mont. at 163, 848 P.2d at 499.
¶17 The State also cites Petition of Gillham (1985), 218 Mont. 187, 707 P.2d 1100. There, we concluded that the failure of a defense attorney to request a jury instruction on accomplice testimony did not meet the requirements necessaiy to establish ineffective assistance of counsel. In that case, trial counsel stated he withdrew the instruction because he considered it inapplicable. Gillham, 218 Mont. at 191-92, 707 P.2d at 1102-03.
¶18 In the present case, however, there is no indication that counsel made a tactical decision not to request an instruction on accomplice testimony. The State acknowledges that such an instruction would have been appropriate, and neither the briefs nor the record contain any explanation as to why the defense did not request it. Certainly there is no reasonable tactical or strategic reason for failing to provide an instruction on the jury’s consideration of an accomplice’s testimony when, as in this case, the accomplice testifies that the accused came up with the idea for the burglary, identified the items to be taken, provided the tools with which to commit the offense, and provided transportation to the scene.
¶19 To support the prejudice element of a claim of ineffective assistance of counsel, a defendant need not demonstrate that he would have been found not guilty had his counsel taken different action. He must establish only that there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Here, the distinction between what the jury was told and what it should have been told is significant. The jury was instructed only in general terms relative to the weight to be given the testimony of witnesses. It should have been specifically instructed that it should view the testimony of Albrecht, an accomplice, with distrust. An instruction concerning accomplice testimony would have gone to the heart of the defense that Albrecht was not telling the truth when he said Rose was involved with him in the burglary of Enjoy Sports.
¶20 We conclude that counsel’s performance in this case fell short of the range reasonably demanded and that this failure was prejudicial to Rose. We hold that Rose’s counsel rendered ineffective assistance by failing to request that a juiy instruction on accomplice testimony be given, in violation of Rose’s constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution. We therefore reverse Rose’s conviction of accountability for aggravated burglary.
Issue 2
¶21 Is there sufficient evidence to support Rose’s conviction of possession of dangerous drugs?
¶22 Because there is nothing to indicate that Albrecht was an accomplice or was claimed to be an accomplice to Rose in relation to the possession charge, the ineffective assistance of counsel arguments do not apply to that conviction and we examine this issue on its merits. The standard of review of sufficiency of evidence on appeal is 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. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686; cert. denied _ U.S. _, 117 S.Ct. 748, 136 L.Ed.2d 686 (1997).
¶23 Rose argues that he was unaware of the presence of the methamphetamine-laden spoon in the van, so that he cannot properly be convicted of possession of dangerous drugs pursuant to § 45-9-102, MCA, which requires proof of “knowing control of the drugs for a sufficient time to be able to terminate control.” State v. Harper (1997), 284 Mont. 185, 188, 943 P.2d 1255, 1257. The basis for this contention is Rose’s own testimony that he was unaware of the presence of the drug in the van.
¶24 Credibility of witnesses and the weight to be given to their testimony are to be determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686. The trier of fact is not required to blindly accept the defendant’s version of the facts. State v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24. Moreover, “[i]f events are capable of different interpretations, the trier of fact determines which is most reasonable.” Brogan, 261 Mont. at 87, 862 P.2d at 24.
¶25 The jury was presented with evidence that Rose was driving the van in which the methamphetamine-laden spoon was found. The spoon, which had his initial, “R,” and which Rose admitted was similar to other spoons in his house, was found in the driver’s door pocket of the van, within Rose’s immediate reach. In addition, the jury was entitled to consider Rose’s own testimony that he used illegal drugs on the night of the burglary.
¶26 Possession of a dangerous drug may be either actual or constructive. See, e.g., State v. Neely (1993), 261 Mont. 369, 862 P.2d 1109.
Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or the joint dominion and control of the accused and another person.
Neely, 261 Mont. at 374, 862 P.2d at 1112, citing State v. Meader (1979), 184 Mont. 32, 43, 601 P.2d 386, 392.
¶27 Based on the evidence presented to the jury in this case, a rational trier of fact could have found that Rose had constructive possession of the methamphetamine-laden spoon in the driver’s door pocket of the van. We therefore affirm Rose’ conviction on that count.
¶28 In summary, we hold that Rose was not afforded effective assistance of counsel as to the charge of accountability for aggravated burglary and that this was prejudicial to his defense. We reverse his conviction on that count and remand for further proceedings consistent with this Opinion. We affirm Rose’s conviction of criminal possession of dangerous drugs.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and LEAPHART concur.
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
¶ 1 American Family Mutual Insurance Company (American Family) filed a declaratory judgment action in the Seventh Judicial District Court, Dawson County, seeking a determination of the effect of a “nonowned automobile exclusion” in the policy issued to its insured, Nancy Henninger (Henninger). The District Court granted American Family’s motion for summary judgment, concluding that the “nonowned automobile exclusion” is valid and excludes coverage for Henninger in the related negligence action commenced by Ross and Brenda Livengood (the Livengoods). Judgment was entered accordingly, the Livengoods appeal and we affirm.
¶2 The overall issue on appeal is whether the District Court erred in granting summary judgment to American Family. The specific issues raised by the Livengoods in that regard are:
¶3 1. Whether the District Court erred in concluding that the “nonowned automobile exclusion” in Henninger’s policy applies.
¶4 2. Whether the District Court erred in concluding that the “nonowned automobile exclusion” in Henninger’s policy does not violate Montana’s public policy.
¶5 3. Whether the District Court erred in concluding that the “nonowned automobile exclusion” in Henninger’s policy does not violate the reasonable expectations of the insured.
BACKGROUND
¶6 Henninger was driving a 1993 Ford van owned by her roommate, Arthur Frehse (Frehse), on July 17, 1995, when she and the Livengoods were involved in a vehicle/motorcycle accident. The Livengoods sustained injuries in the accident and filed a negligence action against Henninger. Frehse and Henninger had separate automobile liability policies with American Family. American Family defended Henninger in the Livengoods’ negligence action under the cov erage afforded by the Frehse policy, but denied coverage under the Henninger policy.
¶7 American Family subsequently filed the instant action seeking a declaration that Henninger’s policy did not obligate it to defend Henninger or pay any compensatory damages for bodily injury recovered by the Livengoods. It contended that Henninger’s policy covered compensatory damages for bodily injury arising from Henninger’s use of her own vehicle, but expressly excluded coverage — under a provision hereinafter referred to as the nonowned automobile exclusion — while Henninger was operating Frehse’s vehicle because Henninger and Frehse were residents of the same household.
¶8 Both American Family and the Livengoods moved for summary judgment. The District Court granted American Family’s motion, denied the Livengoods’ motion, and entered judgment accordingly. The Livengoods appeal.
DISCUSSION
¶9 The nonowned automobile exclusion at issue in this case provides as follows:
This coverage does not apply to:
9. Bodily injury or property damage arising out of the use of a vehicle, other than your insured car, which is owned by or furnished or available for regular use by you or any resident of your household.
The District Court determined that no genuine issue of material fact existed with regard to Henninger and Frehse being residents of the same household and concluded that the nonowned automobile exclusion in Henninger’s policy applies. It also concluded that the exclusion did not violate either public policy or the insured’s reasonable expectations. On those bases, the District Court granted summary judgment to American Family.
¶10 We review a district court’s grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.P., criteria used by that court. Stutzman v. Safeco Ins. Co. (1997), 284 Mont. 372, 376, 945 P.2d 32, 34 (citations omitted). In establishing the propriety of summary judgment,
[t]he movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903 (citations omitted).
ISSUE ONE
¶11 Did the District Court err in concluding that the nonowned automobile exclusion in Henninger’s policy applies?
¶12 The Livengoods first assert that the District Court erred in granting summary judgment to American Family because a genuine issue of material fact exists regarding whether Henninger and Frehse were residents of the same household for purposes of applying the nonowned automobile exception. We disagree.
¶ 13 American Family alleged in its complaint that, at the time of the accident, Henninger and Frehse were residents of the same household. The Livengoods denied that allegation in their answer. Thereafter, however, Henninger and Frehse answered the complaint and admitted that they were residents of the same household on the date of the accident. That admission was sufficient to meet American Family’s burden of establishing the absence of a genuine issue of material fact regarding residency in the same household. Thus, the burden shifted to the Livengoods to come forward with substantial evidence, not mere denial or speculation, that a genuine issue of fact existed as to whether Henninger and Frehse were residents of the same household. See Bruner, 272 Mont. at 264, 900 P.2d at 903.
¶ 14 The Livengoods did not come forward with any evidence whatsoever, much less substantial evidence, to controvert Henninger and Frehse’s admission that they were residents of the same household and, thereby, to raise a genuine issue of fact in that regard. Instead, the Livengoods advanced cases from other jurisdictions setting forth factors tending to indicate whether two persons are residents of the same household. They advance those cases again on appeal, arguing therefrom that questions remain as to those factors in the present case. The problem with the Livengoods’ argument, however, is that none of the cases on which they rely involve an admission by the persons involved that they were, in fact, residents of the same household. As a result, the questions the Livengoods raise about the duration and nature of Henninger and Frehse’s relationship, their “intentions” regarding the future and the like, are merely speculative and are insufficient to meet their burden of raising a genuine issue of material fact regarding whether Henninger and Frehse were residents of the same household at the time of the accident. We conclude, therefore, that the District Court did not err in determining that no genuine issue of material fact exists regarding Henninger and Frehse being residents of the same household at the time of the accident.
¶ 15 The Livengoods also contend that the District Court erred in interpreting the nonowned automobile exclusion to require only that the vehicle driven by Henninger at the time of the accident be owned by Frehse, a resident of her household, and in determining, on that basis, that the exclusion applies. They posit that, in order for the exclusion to apply, Frehse also must have either furnished his vehicle — or made it available — for Henninger’s “regular use.” Again, we disagree.
¶ 16 As set forth above, the policy language at issue excludes coverage for injury arising out of the insured’s use of a vehicle “owned by or furnished or available for regular use by you or any resident of your household.” In its common usage, “or” connotes the disjunctive, and it is used to express an alternative or give a choice of one among two or more things. See Black’s Law Dictionary 1095 (6th ed. 1990). When a provision is written in the disjunctive, it is clear that only one of the separately stated factors must exist. See Baldridge v. Board of Trustees (1997), 287 Mont. 53, 62, 951 P.2d 1343, 1349. Indeed, in Stutzman, we implicitly interpreted a similarly worded exclusion of a vehicle “owned by or furnished for the regular use of the named insured or any relative” disjunctively, requiring the insurer to establish only that the vehicle was owned by a relative of the named insured. Stutzman, 284 Mont. at 378, 945 P.2d at 35.
¶17 Here, the disjunctive “or” separates each alternative in the nonowned automobile exclusion at issue. As a result, coverage clearly is excluded for injuries arising from Henninger’s use of a vehicle — other than her insured car — which is either “owned by” or “furnished or available for regular use” by either Henninger or any resident of her household. American Family established that Henninger was using a vehicle owned by Frehse, a resident of her household, at the time of the accident. It was not required to show that the separately stated alternative regarding a vehicle furnished or made available for her regular use by a resident of her household also was satisfied.
¶18 We hold that the District Court did not err in interpreting the policy language or in concluding that the nonowned automobile exclusion in Henninger’s policy applies.
ISSUE TWO
¶19 Did the District Court err in concluding that the nonowned automobile exclusion in Henninger’s policy does not violate Montana’s public policy?
¶20 Having rejected the Livengoods’ argument that the exclusion at issue did not apply, the District Court also rejected their contention that the nonowned automobile exclusion in Henninger’s policy violates Montana’s mandatory insurance laws and is void as against public policy pursuant to Transamerica Ins. Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820. On appeal, the Livengoods continue to rely on Royle in contending that the District Court erred.
¶21 In Royle, a daughter sued her parents for injuries sustained while a passenger in a car being driven by her mother, owned by her father, and insured by Transamerica. Royle, 202 Mont. at 174, 656 P.2d at 821. The parents’ insurance policy contained a household exclusion clause which excluded coverage for “ ‘bodily injury to any person who is related by blood, marriage, or adoption to [the insured], if that person resides in [the insured’s] household at the time of loss.’ ” Royle, 202 Mont. at 174, 656 P.2d at 821. Relying on the exclusion, Transamerica refused to defend and the parents sought a declaratory judgment in federal court that the household exclusion was invalid. Royle, 202 Mont. at 174-75, 656 P.2d at 821.
¶22 On certification from the federal court, we addressed whether § 61-6-301(1), MCA, requiring an owner of a motor vehicle to “ ‘continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person...’[,]” prohibited the household exclusion. Royle, 202 Mont. at 175, 656 P.2d at 821. Determining that the legislature had expressly outlawed the household exclusion by requiring protection against bodily injury to any person, we held that the household exclusion was void and unenforceable. Royle, 202 Mont. at 177, 181, 656 P.2d at 823, 824.
¶23 Royle is not applicable here. There, we invalidated the household exclusion because it precluded coverage for injuries to relatives living in the insured’s household in violation of the § 61-6-301(1), MCA, mandate that a vehicle owner’s policy provide liability coverage for injuries to all persons. Royle, 202 Mont. at 181, 656 P.2d at 824. In contrast, Henninger’s policy complies with the requirements of § 61-6-301(1), MCA, by providing liability coverage for injuries suffered as the result of her operation of her insured vehicle. The nonowned automobile exclusion in Henninger’s policy simply precludes coverage while she uses certain vehicles other than her insured vehicle. It does not preclude coverage for injuries sustained by particular persons in contravention of§ 61-6-301(1), MCA, as was the case in Royle. Thus, the Livengoods’ reliance on Royle is misplaced. ¶24 Moreover, we distinguished Royle in addressing a household/vehicle exclusion in Stutzman. Both Stutzman and her husband were the named insureds in an automobile insurance policy issued by Safeco. Stutzman, 284 Mont. at 375, 945 P.2d at 33. Stutzman was injured while a passenger in her husband’s vehicle and claimed damages in excess of $200,000. Stutzman, 284 Mont. at 375, 945 P.2d at 33. Safeco paid her the $100,000 liability limits under the policy and Stutzman sought additional coverage pursuant to the underinsured motorist benefits provided in the policy. Stutzman, 284 Mont. at 375, 945 P.2d at 33-34. Safeco denied the additional coverage based on a policy clause that removed from the definition of “underinsured motor vehicle” any vehicle “ ‘owned by or furnished for the regular use of the named insured or any relative....’” Stutzman, 284 Mont. at 378, 945 P.2d at 35. It argued that, because the vehicle was owned by Stutzman’s husband, a relative of the named insured, the vehicle was not an “underinsured motor vehicle” as defined under the policy and no additional coverage was available. Stutzman, 284 Mont. at 378, 945 P.2d at 35.
¶25 Stutzman filed an action in the district court to recover the underinsured motorist benefits. Stutzman, 284 Mont. at 374, 945 P.2d at 33. Both parties moved for summary judgment and the district court granted Safeco’s motion and denied Stutzman’s motion. Stutzman, 284 Mont. at 374, 945 P.2d at 33. Stutzman contended on appeal that, pursuant to Royle, household exclusion clauses in bodily injury liability cases were void and, therefore, the exclusion in her policy violated Montana’s public policy. Stutzman, 284 Mont. at 380, 945 P.2d at 37.
¶26 We rejected Stutzman’s argument. While not specifically stated in our opinion, Stutzman’s policy provided the mandatory liability coverage required by statute at the time of the accident. Cf. Stutzman, 284 Mont. at 375, 945 P.2d at 33-34; and §§ 61-6-301(1) and 61-6-103(2)(b), MCA. Thus, unlike the situation in Royle, the underinsured motorist coverage at issue in Stutzman was optional, rather than statutorily mandated; as a result, the parties could freely contract regarding exclusions or limitations on the optional coverage. See Stutzman, 284 Mont. at 380-81, 945 P.2d at 37. Therefore, while noting that we may invalidate a policy exclusion which violates Montana’s mandatory insurance law, we ultimately held that the exclusion at issue — which was not contrary to any statutory mandate — did not violate Montana’s public policy. Stutzman, 284 Mont. at 380, 382, 945 P.2d at 37.
¶27 In the present case, as in Stutzman, Henninger’s policy provides the mandatory liability coverage required by §§ 61-6-301(1) and 61-6-103(2)(b), MCA, and the nonowned automobile exclusion is not contrary to any statutory mandate. Thus, on the record before us, we conclude that the nonowned automobile exclusion at issue in the present case does not violate Montana’s public policy.
¶28 The Livengoods also present several hypothetical scenarios under which either they or Frehse might have been completely denied coverage for bodily injuries, arguing therefrom that the nonowned automobile exclusion in Henninger’s policy is contrary to Montana’s public policy. Our function, however, is to interpret the law and apply it to the facts before us. As a result, we decline to address the Livengoods’ hypothetical scenarios.
¶29 We hold that the District Court correctly concluded that the nonowned automobile exclusion in Henninger’s policy does not violate Montana’s public policy.
ISSUE THREE
¶30 Did the District Court err in concluding that the nonowned automobile exclusion in Henninger’s policy does not violate the reasonable expectations of the insured?
¶31 With regard to the Livengoods’ “reasonable expectations” argument, the District Court concluded that the nonowned automobile exclusion was clear as to its meaning and intent and, as a result, did not offend Henninger’s reasonable expectations. The Livengoods contend that the nonowned automobile exclusion is ambiguous both in and of itself and because of its positioning in the policy. Accordingly, they urge that the exclusion violates the insured’s reasonable expectations.
¶32 The reasonable expectations doctrine provides that the objectively reasonable expectations of insurance purchasers regarding the terms of their policies should be honored notwithstanding the fact that a painstaking study of the policy would have negated those expectations. Royle, 202 Mont. at 180-81, 656 P.2d at 824 (citation omitted). The doctrine is consistent with our strong public policy that insurance is to serve a fundamental protective purpose; moreover, it “goes hand in hand with our rule of strictly construing policy exclusions.” Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 358, 849 P.2d 190, 193 (citation omitted).
¶33 On the other hand, the reasonable expectations doctrine is inapplicable where the terms of the policy at issue clearly demonstrate an intent to exclude coverage. Wellcome, 257 Mont. at 359, 849 P.2d at 194. The reason, of course, is that “[expectations which are contrary to a clear exclusion from coverage are not ‘objectively reasonable.’ ” See Wellcome, 257 Mont. at 359, 849 P.2d at 194.
¶34 The Livengoods first contend that the exclusion language is ambiguous, thereby offending Henninger’s reasonable expectations. Specifically, they claim that the nonowned automobile exclusion is ambiguous because Henninger could have interpreted it to apply only if she and Frehse were residents of the same household and she regularly used Frehse’s vehicle. We disagree.
¶3 5 We recently addressed the application of the reasonable expectations doctrine to exclusion language in Stutzman. The language at issue in Stutzman’s policy excluded underinsured motor vehicle coverage for any vehicle “ ‘owned by or furnished for the regular use of the named insured or any relative....’ ” Stutzman, 284 Mont. at 378, 945 P.2d at 35. Stutzman’s first contention on appeal was that the term “relative” was ambiguous with regard to whether it included a spouse. Stutzman, 284 Mont. at 379, 945 P.2d at 36.
¶36 We began our discussion by reiterating the ambiguity principles applicable to insurance policies: 1.) that we will construe any ambiguity in a policy strictly against the insurer; and 2.) that we will not create an ambiguity where none exists, but will “interpret the terms of an insurance policy, ... according to their usual, common sense meaning as viewed from the perspective of a reasonable consumer of insurance products.” Stutzman, 284 Mont. at 379, 945 P.2d at 36 (citations omitted). We concluded that, when applying a common sense interpretation to the term “relative,” the average consumer would conclude that the term included his or her spouse. Stutzman, 284 Mont. at 379-80,945 P.2d at 36. We also concluded that, even when strictly construed against the insurer and from the perspective of the average consumer of insurance, the exclusionary language clearly and unambiguously excluded vehicles from the definition of an underinsured motor vehicle if owned by a relative, including a spouse, of the insured. Stutzman, 284 Mont. at 380, 945 P.2d at 36.
¶37 Stutzman also contended that the exclusion was void because it violated her reasonable expectations as an insured. Stutzman, 284 Mont. at 381, 945 P.2d at 37. We referred back to our conclusion that the exclusion clearly and unambiguously included one’s spouse and, in reliance thereon, determined that any expectation by the insured to the contrary would not be objectively reasonable. Stutzman, 284 Mont. at 381, 945 P.2d at 37. Consequently, we held that the exclusion did not violate the reasonable expectations of the insured. Stutzman, 284 Mont. at 382, 945 P.2d at 37.
¶38 As discussed above, the use of disjunctives to separate each alternative in the nonowned automobile exclusion in Henninger’s policy clearly precluded coverage for injuries arising from Henninger’s use of a vehicle owned by a resident of her household. Thus, while strictly construing the nonowned automobile exclusion against American Family and applying a common sense meaning as viewed from the perspective of a reasonable consumer of insurance products, we conclude that the exclusion clearly and unambiguously precludes coverage under the facts before us. As a result, the nonowned automobile exclusion in Henninger’s poficy clearly demonstrates an intent to exclude coverage while Henninger was using a vehicle owned by Frehse, a resident of her household, and any expectation by Henninger to the contrary would not be objectively reasonable. See Stutzman, 284 Mont. at 381, 945 P.2d at 37 (citation omitted).
¶39 The Livengoods also contend that, under Shook v. State Farm Mut. Ins. of Bloomington, Ill. (D.Mont. 1994), 872 F.Supp. 768, the nonowned automobile exclusion is ambiguous via its positioning in the poficy and, as a result, violates the reasonable expectations of the insured. American Family responds that the Livengoods did not raise this “positioning” contention in support of their reasonable expectations argument in the District Court and, as a result, they may not raise it on appeal. We agree.
¶40 The entirety of the Livengoods’ reasonable expectations argument in the District Court was set forth in two paragraphs. The first paragraph merely asserted in conclusory fashion that the nonowned automobile exclusion at issue was invalid in failing to honor the reasonable expectations of the purchaser and cited to our description of the reasonable expectations doctrine in Royle. The second paragraph simply stated that the exclusion was void and unenforceable because it violated the § 61-6-301(1), MCA, requirement that motorists carry insurance against loss resulting in liability imposed by law for injuries suffered by any person. We addressed this latter contention above and concluded that the nonowned automobile exclusion contained in Henninger’s does not violate § 61-6-301(1), MCA.
¶41 It is clear that the Livengoods’ reasonable expectations argument in the District Court did not include a Shook-style positioning contention. It is equally clear that a party may not raise a new theory on appeal. See Clover Leaf Dairy v. State (1997), 285 Mont. 380, 387, 948 P.2d 1164, 1168 (citation omitted). As a result, we decline to address this contention.
¶42 We hold that the District Court correctly concluded that the nonowned automobile exclusion in Henninger’s policy did not violate the reasonable expectations of the insured.
¶43 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, REGNIER and NELSON concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 On February 16,1995, Michael Law Olmsted was charged by information filed in the District Court of the Fourth Judicial District in Missoula County with three counts of burglary, felonies, in violation of § 45-6-204, MCA, one count of criminal possession of a dangerous drug as defined by § 50-32-101, MCA, and one count of possession of drug paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA. Olmsted filed a motion to suppress all physical evidence which the State obtained through a warrantless search of his rented U-Haul truck, and all statements Olmsted made subsequent to the search. He also filed a motion to dismiss the charges against him based on his belief that the State violated his right to a speedy trial. The District Court denied both motions.
¶2 Following a mistrial, the State filed a third amended information which charged Olmsted with two counts of burglary in violation of § 45-6-204, MCA; two counts of felony theft in violation of § 45-6-301, MCA; and one count of misdemeanor theft. On December 21,1995, at the conclusion of the second jury trial, the jury convicted Olmsted of all counts. Olmsted appeals the District Court’s denial of his motion to suppress the physical evidence obtained as a result of the warrantless search of his rented U-Haul truck, and its denial of his motion to dismiss for lack of speedy trial.
¶3 We affirm the judgment of the District Court.
¶4 The issues on appeal are:
¶5 1. Did the State have a particularized suspicion to initiate an investigative stop of Olmsted?
¶6 2. Did the warrantless search of Olmsted’s rented U-Haul truck violate his right to privacy or his right to be free from unreasonable searches and seizures as guaranteed by the Montana Constitution?
¶7 3. Did the State violate Olmsted’s right to a speedy trial?
FACTUAL BACKGROUND
¶8 On January 30,1995, Scott Roberts provided the Missoula Police Department with information regarding six burglaries in Missoula. According to Detective James Lemcke of the Missoula Police Department, Roberts reported that Michael Law Olmsted and Olmsted’s friend, Randy Munden, were involved in the burglaries and thefts. Roberts indicated that Olmsted and Munden used two-way radios to communicate with each other while committing the burglaries. Subsequently, Lemcke learned that on January 11,1995, Olmsted used his credit card to purchase a pair of two-way radios.
¶9 At trial, Lemcke testified that Roberts stated that one of the businesses that Olmsted and Munden burglarized was Browning Ferris Industries (BFI). Lemcke confirmed that a person or persons had burglarized BFI on January 12,1995, and had stolen a color television and VCR, a Sony video camera, a pocket knife, a lap top computer, and approximately $300.
¶10 According to Lemcke, Roberts also described the location of a second burglary in which Olmsted and Munden were involved. Although Roberts did not know the name of the burglarized business, he was able to describe the building sufficiently for Lemcke to identify it as the building in which Big Sky Brewing and Mother Moose are located. Lemcke was able to confirm that on January 12, 1995, both businesses had reported burglaries. Big Sky Brewing reported that it was missing a Macintosh computer, printer, monitor, modem, fax machine, and a Panasonic video camera. Mother Moose reported that it was missing $125. The owner of the building, David Kester, reported that he was missing a briefcase which contained $6300 in cash.
¶11 According to Lemcke, the information that Roberts gave him regarding the thefts and burglaries matched the details found in the police reports that documented the January 12,1995, burglaries.
¶12 Roberts admitted to Lemcke that he took possession of the Panasonic video camera, even though he knew that it was stolen. He brought the video camera and one of the stolen VCRs to the police. Roberts also told Lemcke that Randy Munden was concerned about the serial number on the stolen Macintosh computer, so Munden went to Sears, found a similar computer, pulled off the serial number and placed it on the stolen computer. Lemcke called Sears and confirmed that one of their Macintosh computers was missing its serial number. ¶13 Roberts told Lemcke where Munden lived, who he lived with, what kind of car he drove, and what kind of car his girlfriend drove. Two detectives checked on the information Roberts provided regarding Munden and determined that it was accurate. Roberts also told Lemcke that Olmsted was planning to leave town and had a U-Haul truck and tow-dolly parked in front of his house ready to go. A detective confirmed that this information was also accurate.
¶14 Roberts testified at trial that he had decided to share this information with the police because he was concerned about Munden’s plans to break into the home of one of Roberts’ acquaintances.
¶15 On January 30,1995, the day that Roberts told the police that Olmsted might be leaving the state, Lemcke asked Detective Joe Gaffney to watch the U-Haul truck which was parked in front of Olmsted’s residence. Lemcke told Gaffney to notify him if anyone came out of Olmsted’s house and moved the U-Haul truck. Gaffney did as Lemcke requested.
¶16 At approximately 8:15 p.m., a vehicle pulled up near Olmsted’s U-Haul truck, and two people got out. One person attached a tow-dolly loaded with a car to the U-Haul and then got into the U-Haul and began to drive away. Gaffney followed the driver of the U-Haul truck and notified Lemcke of what had occurred. Lemcke instructed Gaffney to stop and identify the driver of the U-Haul truck and ask for consent to search the truck.
¶17 Gaffney approached the driver of the truck whom he identified as Michael Olmsted. Gaffney informed Olmsted that the Missoula Police Department was investigating information it had received that Olmsted may have participated in some recent burglaries and thefts and asked Olmsted if he could search the U-Haul truck. Olmsted asked Gaffney if he needed to consult with an attorney in order to decide if he should consent to the search. Gaffney responded that he could not advise him on that matter. Olmsted then asked what would happen if he refused to consent. Gaffney responded that he would impound the U-Haul truck until a search warrant could be obtained. Olmsted then gave Gaffney permission to search the vehicle. Gaffney advised Olmsted that he did not have to give his consent to search the vehicle. According to Gafihey, Olmsted stated that he understood and that he would still allow the truck to be searched. Olmsted then signed a consent-to-search form. At trial, Olmsted testified that he consented to the search and fully cooperated with Gaffney.
¶ 18 Following Roberts’ tips, Lemcke completed a background check on Olmsted which indicated that Olmsted was on probation for the offenses of burglary and theft. Lemcke asked Detective Rich Ochsner of the Missoula Police Department to contact Olmsted’s probation officer. On January 30, 1995, Ochsner contacted probation officer Jan Ullom. Ullom informed Ochsner that Earl Strubeck was Olmsted’s supervising parole officer, but that he was out of town. Ullom indicated that she had no personal knowledge of Olmsted, but because Strubeck wasout of town, Ullom reviewed Olmsted’s file and verified that his conditions of probation included a search clause.
¶ 19 Olmsted’s probation and parole records indicate that in 1989 he was convicted of burglary and theft and received a deferred imposition of sentence. In 1991, Olmsted was again convicted of burglary and theft. Consequently, the court reversed his deferred imposition of sentence and sentenced Olmsted to ten years in prison with six years suspended. Olmsted was paroled in 1992. One of the conditions of his probation, to which he agreed, was that he would submit to a search of his person, vehicle, or residence by a probation or parole officer at any time and without a warrant.
¶20 Gaffney conducted a cursory search of the U-Haul truck at the location of the stop. Gaffney had no detailed information as to what was being sought by the Missoula Police Department; however, just after he began a cursory search, Ochsner and Ullom arrived at the scene. They decided that because of the rain and poor lighting, it would be better to take the U-Haul truck to the police station for a more thorough search. Olmsted agreed to drive the U-Haul truck to the station and, according to Gaffney, Ullom, and Ochsner, he was very cooperative.
¶21 After reading Olmsted his Miranda rights, Ochsner attempted to interview him. Initially, Olmsted agreed to talk with Ochsner. He denied any knowledge of the burglaries and thefts and then stated “I won’t say that I don’t have any involvement, and I won’t say that I don’t know what you are talking about, but before I say any more I’m going to talk to a lawyer.” Ochsner immediately ended the interview. After learning of this and being informed of the information gathered by the police, as well as being aware of the information in Olmsted’s file, Ullom instructed the police officers to arrest Olmsted and to search the truck.
¶22 As a result of the search, police officers recovered the laptop computer stolen from BFI, a video camera stolen from BFI, and a fax machine stolen from Big Sky Brewing.
¶23 At trial, Olmsted testified that he unknowingly bought the stolen office equipment from Randy Munden who told Olmsted that he received the items from a friend who owed him money. According to Olmsted, Munden offered to sell him a laptop computer, a fax machine, and a video camera because Munden knew that Olmsted used these items in his business. Olmsted testified that he agreed to purchase these items for $1500, $500 of which he paid initially, and the rest which he agreed to pay upon reaching California where he planned to establish his new business. Olmsted testified that he did not know that these items were stolen when he purchased them. ¶24 Olmsted testified that on January 30,1995, he had intended to leave the next day for California. That night he loaded the U-Haul truck and drove it to his girlfriend’s house to spend the evening with her before departing in the morning. It was at Olmsted’s girlfriend’s house that Gaffney stopped Olmsted and asked if he could search the U-Haul.
¶25 At Olmsted’s trial, Randy Munden testified that he agreed to cooperate with the police and give them the names and places of the crimes in which he was involved, and the names of the people with whom he committed the crimes. Munden admitted burglarizing Big Sky Brewing and BFI and testified that Olmsted had participated with him in the burglaries.
STANDARD OF REVIEW
¶26 Olmsted first contends that the District Court erred when it denied his motion to suppress the physical evidence obtained as a result of the warrantless search of his rented U-Haul truck. He argues that the State did not have a particularized suspicion to initiate an investigative stop and that the warrantless search of the U-Haul truck was unconstitutional. We review a district court’s denial of a motion to suppress to determine if the district court’s findings of fact are clearly erroneous and whether the district court correctly applied the findings of fact as a matter of law. See State v. Burchett (1996), 277 Mont. 192, 195, 921 P.2d 854, 856.
¶27 Olmsted also argues that the District Court incorrectly concluded that the State did not violate his right to a speedy trial. Whether a defendant has been denied a speedy trial is a question of constitutional law. See City of Billings v. Bruce, 1998 MT 186, ¶18, [290 Mont. 148, ¶18], 965 P.2d 866, ¶18. We review a district court’s conclusions of law to determine whether its interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 696.
ISSUE 1
¶28 Did the State have a particularized suspicion to initiate an investigative stop of Olmsted?
¶29 Section 46-5-401, MCA, provides:
In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
¶30 We have held that a particularized suspicion, not probable cause, is the standard necessary for the State to initiate an investiga tive stop of an individual. See State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. We use a two-part test in order to determine whether a particularized suspicion exists to justify an investigatory stop. First, objective data must exist from which an experienced officer can make certain inferences and, second, the objective data must lead to a suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. See Gopher, 193 Mont. at 194, 631 P.2d at 296. We must determine whether the totality of the circumstances presented in this case created a particularized suspicion. See Anderson v. State, Dep’t of Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214.
¶31 Olmsted contends that at the time Gaffney pulled him over, Gaffney was acting on a mere hunch and did not have a particularized suspicion to justify an investigative stop. We disagree. The facts of this case demonstrate that the Missoula Police Department knew that numerous burglaries and thefts had been committed in Missoula earlier that month and that Scott Roberts’ detailed information about the burglaries and thefts implicated Olmsted in some of those crimes. The officers who were working under Lemcke’s direction in the investigation corroborated much of the information Roberts provided.
¶32 After Lemcke received Roberts’ information, he verified that it matched the information found in police reports which documented burglaries and thefts from Missoula businesses which occurred on January 12,1995, and which were similar to those described by Roberts. Lemcke verified that one of the computers at Sears was missing a serial number as Roberts had described. Roberts correctly informed Lemcke that the police would find a U-Haul truck and tow-dolly loaded with a car, parked in front of Olmsted’s residence.
¶33 We agree with the District Court that Roberts’ information was reliable and trustworthy. We have previously held that it is proper for an officer to rely upon information which a reliable third person conveys in order to formulate a particularized suspicion. See State v. Sharp (1985), 217 Mont. 40, 46, 702 P.2d 959, 962. Roberts freely admitted that he had a video camera in his possession as a result of the burglaries, and he turned it over to the police. An informant’s act of subjecting himself to criminal liability contributes to the trustworthiness of the information which he provides. See State v. Adams (1997), 284 Mont. 25, 37, 943 P.2d 955, 961-62. We have stated that “[a] person of known criminal activity or a person admitting his own criminal activity is not likely to place himself in such a dubious position unless he is telling the truth.” State v. Garberding (1990), 245 Mont. 356, 362, 801 P.2d 583, 586. Roberts’ information was reliable, detailed, and accurate. It was more than an uncorroborated tip and it, along with the information officers were able to corroborate, provided the police with more than a mere hunch that Olmsted had been engaged in some kind of wrongdoing.
¶34 Olmsted further contends that because the arresting officer did not personally observe Olmsted committing illegal activity prior to initiating a stop, the police did not have the authority to stop him. We have held, however, that it is appropriate for an arresting officer to rely on information that is conveyed by rehable third persons or another officer in order to stop or arrest a person. See Boland v. State (1990), 242 Mont. 520, 524, 792 P.2d 1, 3, overruled on other grounds by Bush v. State, Dep’t of Justice, 1998 MT 270, [291 Mont. 359], 968 P.2d 716. We have also held that a particularized suspicion does not require certainty on the part of the law enforcement officer. See State v. Morsette (1982), 201 Mont. 233, 241, 654 P.2d 503, 507. In this case, although Detective Gaffney was not an eye witness to Olmsted’s illegal activity, he correctly relied upon the collective information from all the detectives investigating this matter, as well as the information conveyed by Roberts.
¶35 The information provided to and gathered by the investigating officers was more than sufficient to support a particularized suspicion. Several burglaries and thefts of businesses had been reported to the police department earlier that month. Roberts implicated Olmsted in some of the crimes and reported to the police department that Olmsted had rented a U-Haul truck and was preparing to leave town. Olmsted had prior convictions for burglary and theft for which he was still believed to be serving a probationary sentence. When Gaffney watched Olmsted move the U-Haul truck and relayed that information to Lemcke, Lemcke reasonably feared that Olmsted was leaving town and may be taking stolen property with him. We conclude that there was a sufficiently particularized suspicion to justify Gaffney’s investigative stop.
ISSUE 2
¶36 Did the warrantless search of Olmsted’s rented U-Haul truck violate his right to privacy or his right to be free from unreasonable searches and seizures as guaranteed by the Montana Constitution?
¶37 Olmsted argues that the State violated his right to be free from unreasonable searches and seizures and his right to privacy when offi cers searched his U-Haul truck. He contends that the District Court should have suppressed the evidence which was obtained as a result of the search. We have held that a criminal defendant who seeks to suppress evidence has the burden of proving that the search was illegal. See State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113. ¶38 Pursuant to the Fourth and Fourteenth Amendments of the United States Constitution, and Article II, Section 11, of the Montana Constitution, warrantless searches and seizures are unreasonable unless carefully crafted exceptions exist. One such exception is when a person knowingly and voluntarily consents to a search. See State v. Rushton (1994), 264 Mont. 248, 257, 870 P.2d 1355, 1361. Olmsted contends that he did not consent to the search voluntarily because Gaffney coerced him into signing the consent-to-search form by leading him to believe that the police had sufficient evidence to obtain a search warrant for the U-Haul. However, based on our conclusion that the items seized were the result of a later search which was authorized, we decline to address this claim.
¶39 A warrantless search of a probationer’s residence or vehicle does not require probable cause but rather, reasonable grounds. See State v. Boston (1994), 269 Mont. 300, 304-05, 889 P.2d 814, 816-17. Olmsted contends that Ullom did not have reasonable grounds to authorize the search of the U-Haul truck because Ullom relied on “uncorroborated information” provided by a confidential informant; Olmsted was not Ullom’s client, and thus was not familiar with him; and because Olmsted had not committed a criminal act to trigger the search.
¶40 Lemcke instructed Ochsner to contact Olmsted’s probation officer after learning that Olmsted had previous convictions for the crimes of burglary and theft and believing that he was, at the time, still serving a probationary sentence for those crimes. Ochsner contacted Ullom, a probation officer with Adult Probation and Parole. Ullom informed Ochsner that Earl Strubeck was the officer responsible for supervising Olmsted, but that he was out of town. Ullom volunteered to go to the probation office and research Olmsted’s file. After doing so, she went to the Missoula Police Department where Lemcke shared with her all of the information he had gathered concerning Olmsted’s involvement in the burglaries and thefts. Based upon this information, Ullom determined that there was reasonable cause for a search of Olmsted’s U-Haul truck and communicated her conclusion to the detectives, who then authorized Gaffney’s search of the truck.
¶41 As we previously discussed, the State had reason to believe the information provided by Scott Roberts was trustworthy. It was more than an uncorroborated tip and provided Ullom with more than a mere hunch that Olmsted had been engaged in wrongdoing. Moreover, even after taking Roberts’ statement, Lemcke verified the fact that burglaries and thefts similar to those Roberts had described had actually occurred. Lemcke also verified that the personal information that Roberts gave about Olmsted was accurate. Therefore, we conclude that the information that Ullom relied upon to authorize the search was reliable and independently corroborated.
¶42 We have held that a probation officer “must be able to supervise the probationer, and upon his judgment and expertise, search the probationer’s residence or cause it to be searched.” State v. Small (1989), 235 Mont. 309, 312, 767 P.2d 316, 318. Olmsted contends that our conclusion implies that the only probation officer authorized to conduct such a search is the probation officer who is specifically assigned to that probationer. In this case, according to Olmsted, only Earl Strubeck had the authority to authorize a search of the U-Haul truck, regardless of whether he was available to give the authorization or not. Olmsted supports his argument with our reasoning in State v. Burke (1988), 235 Mont. 165, 766 P.2d 254, wherein we held:
The probation officer acts upon a continued experience with the probationer, with knowledge of the original offense, and with the probationer’s welfare in mind. Because of his expertise, we view the probation officer in a far superior position to determine the degree of supervision necessary in each case.
Burke, 235 Mont. at 169, 766 P.2d at 256.
¶43 Based on this language, Olmsted concludes that it is the special relationship between a probation officer and a probationer that justifies the exclusive authority of that probation officer to conduct or authorize probation searches. He argues that Ullom did not have a continuing relationship with Olmsted, had no knowledge of Olmsted’s original offense, had never met Olmsted, and possessed no expertise with regard to Olmsted. Because of these things, Olmsted contends that Ullom did not have the authority to allow a probationary search of his U-haul. We disagree.
¶44 Our reasoning in Burke was not intended to preclude all probation officers other than the one assigned to a probationer from authorizing a probationary search.
¶45 When Ullom learned of Olmsted’s possible involvement in the same crimes for which he was on probation, she did not immediately authorize a search, but rather went to the police department to learn the nature and extent of the information the detectives had gathered. She correctly relied upon the information that the police investigation had uncovered. We have held that “due to the large land mass and mostly rural population of Montana, it would be impossible for the parole officers to supervise every probationer and, as such, police officers are needed to assist probation officers.” See Boston, 269 Mont. at 305, 889 P.2d at 816-17. A requirement that only the supervising probation officer be allowed to evaluate the facts and circumstances surrounding a possible probation violation, and then determine if reasonable grounds exist to warrant a search, would greatly hamper the effectiveness of supervision during probation and diminish the public safety that supervision is intended to assure. We conclude, therefore, that probation officers must be able to support one another in order for the sanction of probation to work effectively. We further conclude that, for the reasons previously stated, Ullom had reasonable cause to authorize the search of Olmsted’s U-Haul truck and that the search did not violate Olmsted’s right of privacy and his right to be free from unreasonable searches and seizures.
¶46 We conclude that because the State had a particularized suspicion to initiate an investigative stop of Olmsted, and because the warrantless search of the U-Haul which yielded the evidence which Olmsted sought to suppress was constitutionally valid, the District Court did not err when it denied Olmsted’s motion to suppress.
ISSUE 3
¶47 Did the State violate Olmsted’s right to a speedy trial?
¶48 As stated above, whether a defendant has been denied a speedy trial is a question of constitutional law. See City of Billings v. Bruce, 1998 MT 186, ¶18, [290 Mont. 148, ¶18], 965 P.2d 866, ¶18. We review a district court’s conclusions of law to determine whether its interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 696.
¶49 A criminal defendant’s right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution. See State v. Weeks (1995), 270 Mont. 63, 71, 891 P.2d 477, 482. We review claims that a speedy trial was denied based on the four-part test established by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, as applied in City of Billings v. Bruce, 1998 MT 186, ¶19, [290 Mont. 148, ¶19], 965 P.2d 866, ¶19. According to Barker, the four factors which a court must consider when evaluating an alleged speedy trial violation are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; (4) and the prejudice to the defendant. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Prejudice to the defense can be established based on any of the followingfactors: (1) pretrial incarceration; (2) anxiety and concern to the defendant; and (3) impairment of the defense. See Barker, 407 U.S. at 532, 92 S. Ct at 2193, 33 L. Ed. 2d at 118.
¶50 According to our reasoning in Bruce, we apply the Barker factors in the following manner to determine whether a defendant has been denied his or her right to a speedy trial in violation of the Sixth Amendment to the United States Constitution, or Article II, Section 24, of the Montana Constitution.
Length of Delay
¶51 We consider the length of delay from the time charges are filed until the defendant’s trial date without regard to fault of either party for the various periods of delay. See Bruce, ¶55. In this case, Olmsted was charged by information on February 16,1995, and was tried on October 30,1995; a delay of 256 days prior to trial. Based on our decision in Bruce that 200 days is the necessary length of time to trigger further speedy trial analysis, we conclude that the delay of 256 days prior to Olmsted’s trial is sufficient to trigger further speedy trial analysis. See Bruce, ¶55.
Reason for the Delay
¶52 In our consideration of the second factor of the Barker test, the reason for the delay, we allocate the delay by determining how much time is attributable to each party. See State v. Heffernan (1991), 248 Mont. 67, 71, 809 P.2d 566, 568. Any delay directly attributable to a motion to dismiss based on denial of speedy trial which is filed less than ten days prior to commencement of trial will be assigned to the defendant. See Bruce, ¶57. When it has been demonstrated that 275 days of delay is attributable to the State, the burden shifts to the State to demonstrate that the defendant has not been prejudiced by the delay. See Bruce, ¶56. Olmsted’s trial was scheduled for September, 6,1995. Olmsted orally moved the District Court to dismiss the case for lack of speedy trial on August 29, 1995, 194 days after being charged and eight days before trial. On September 5, 1995, one day before the scheduled jury trial and 201 days after being charged, Olmsted filed his motion to dismiss for the State’s violation of his right to a speedy trial. The timing of Olmsted’s motion made it impossible for the District Court to begin the trial on September 6,1995 as scheduled. On September 13, 1995, the District Court denied Olmsted’s motion to dismiss and rescheduled the trial for October 30, 1995.
¶53 In this case, the state was responsible for an institutional delay of 201 days and, because he filed his motion to dismiss one day before trial, Olmsted was responsible for 54 days of the delay. Nonetheless, even if all 256 days were attributable to the State, the total delay is not sufficient to shift the burden to the State. Therefore, Olmsted continues to bear the burden of demonstrating prejudice based on one or more of the three factors considered when determining prejudice.
Assertion of the Right to a Speedy Trial
¶54 When we consider the third Barker factor, whether the defendant’s right to speedy trial has been timely asserted, we have held that if the right to speedy trial is invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or moving to dismiss for failure to provide a speedy trial, the third prong is satisfied. See Bruce, ¶57. Because Olmsted moved to dismiss on speedy trial grounds prior to trial, we conclude that the third element of the Barker test, the defendant’s assertion of his right to a speedy trial, is satisfied.
Prejudice to Defendant
¶55 The fourth factor of the Barker test, prejudice to the defendant, must be demonstrated by the defendant before there is a speedy trial violation. See State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 617, 620. The importance of this factor and the degree of prejudice needed to establish denial of speedy trial will vary based upon other considerations, such as length of delay and the reason for delay. See Bruce, ¶58. In order to determine whether the defendant has been prejudiced, the court analyzes three interests which the right to a speedy trial is designed to protect: (1) avoiding oppressive pretrial incarceration; (2) minimizing the anxiety of the accused; and (3) avoiding impairment of the defendant’s defense. See State v. Hembd (1992), 254 Mont. 407, 413-14, 838 P.2d 412, 416.
¶56 The first interest, avoiding oppressive pretrial incarceration, does not apply in this case. Olmsted was released on bond and not incarcerated prior to trial.
¶57 As for the second interest, excessive anxiety and concern, Olmsted contends that he has proven this type of prejudice because newspaper accounts stigmatized him as a burglar, because he was unable to leave Montana to take advantage of a job opportunity, and because the reopening of his business and the need to secure living arrangements caused him difficulty and anxiety. We have previously recognized, however, that although direct proof of a defendant’s state of mind may not always be possible, see Bruce ¶56, a certain amount of anxiety and concern is inherent in being accused of a crime. See State v. Foshee (1997), 282 Mont. 326, 334, 938 P.2d 601, 606. The existence of anxiety or emotional distress is notoriously difficult to prove. See State v. Curtis (1990), 241 Mont. 288, 303, 787 P.2d 306, 316. Every person charged with a felony offense has to five with uncertainty about his or her future liberty since aperiod of incarceration is always a possibility. Likewise, every person charged with a felony offense could argue that he or she has been stigmatized. Olmsted, however, has failed to demonstrate how his anxiety and concern is more excessive than that of other individuals who are charged with felonies. Moreover, in this case, Olmsted had been previously convicted of burglary charges and, therefore, any stigma which attached to Olmsted as a result of being charged with criminal conduct had already occurred. Finally, there is no evidence in the record which demonstrates that Olmsted suffered economic hardship. In fact, Olmsted stated that he had “re-established his business in Missoula and rented a small office on a month-to-month lease.”
¶58 On appeal, Olmsted does not argue that the third interest, the impairment of his defense, applies to this case.
¶59 Accordingly, we conclude that Olmsted has not carried his burden of demonstrating prejudice from the delay of his trial date.
¶60 No single factor of the Barker analysis is determinative, and each must be weighed in light of the facts of this case to determine if Olmsted was denied his right to speedy trial. See Bruce, ¶75. After weighing all three prongs of the Barker test, we conclude that while there was institutional delay attributable to the State of 201 days, and 54 days of delay attributable to Olmsted, Olmsted did not demonstrate sufficient prejudice to establish that his October 30 trial date denied his constitutional right to a speedy trial.
¶61 Further, we have held that when a mistrial is declared, the speedy trial clock is reset and begins to run from the date of the mistrial. See State v. Sanders (1973), 163 Mont. 209, 214, 516 P.2d 372, 375. Therefore, the time which lapsed between the mistrial on November 2, 1995, and the second trial on December 18, 1995, a delay of 46 days, does not trigger a speedy trial analysis. We conclude that the District Court properly denied Olmsted’s motion to dismiss.
¶62 Accordingly, we hold that Detective Gaffney had a particularized suspicion to initiate an investigative stop of Olmsted, that probation officer Ullom had reasonable grounds to authorize a probationary search of the U-Haul truck, and that the delay in this case did not prejudice Olmsted and was not unreasonable in light of the complexity of the case. Therefore, we conclude that the District Court correctly denied Olmsted’s motion to suppress the evidence gained through the search, and properly denied his motion to dismiss for lack of speedy trial. We affirm the judgment of the District Court.
JUSTICES NELSON, HUNT, LEAPHART and REGNIER concur.
. Miranda v. Arizona (1966), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
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] |
On April 17,1998, the Defendant’s prior suspended sentence was revoked and he was sentenced to a term of ten (10) years in the Montana State Prison. Due to the Defendant’s failure to comply with the terms and conditions of his suspended sentence, the Court finds that he is not entitled to receive, and shall not receive, credit for any time lapsed between the date of his conviction and the date of this Order, except for twenty-six (26) days previously served.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Larry Mansch. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank attorney Larry Mansch for representing Alan Placzkiewicz in this matter.
|
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] |
CHIEF JUSTICE TURNAGE delivered
the Opinion of the Court.
¶1 In this case, Richard Quinton Woirhaye seeks a writ of supervisory control regarding a decision of the Fourth Judicial District Court, Missoula County. That court upheld the constitutionality of § 46-17-201(3), MCA, against Woirhaye’s claim that the statute violated his right to trial by jury. In a June 2,1998 order, we accepted supervisory control. We now hold that § 46-17-201(3), MCA, violates the right to trial by jury.
¶2 The issue is whether § 46-17-201(3), MCA, infringes upon the rights guaranteed under Article II, Sections 24 and 26 of the Montana Constitution by allowing a misdemeanor criminal defendant to exercise his right to a jury trial only once, in either justice court or in district court on trial de novo.
¶3 In March 1997, Richard Quinton Woirhaye was charged with a misdemeanor offense of driving under the influence of alcohol (DUI) in Missoula County, Montana. Inasmuch as the offense was a misdemeanor, the complaint was brought before the Missoula County Justice of the Peace, pursuant to § 3-10-303, MCA.
¶4 Woirhaye asserted his right to a jury trial at that proceeding, and the justice court jury convicted him of the DUI charge. Woirhaye then appealed to the District Court for a trial de novo pursuant to Article VII, Section 4(2), of the Montana Constitution and § 46-17-311, MCA.
¶5 Section 46-17-201(3), MCA, provides:
A defendant in a misdemeanor case filed injustice’s or city court is limited to one jury trial, either injustice’s or city court or on appeal to the district court. The defendant shall either elect a jury trial in justice’s or city court or reserve jury trial for the district court in the event of conviction and subsequent appeal to the district court. The defendant’s election or reservation must be noted by the court on the face of the charging document.
Wishing to be tried by jury in the District Court, Woirhaye moved that court to declare that § 46-17-201(3), MCA, violated his right to jury trial and was therefore unconstitutional. The court entered an order and supporting memorandum of law denying Woirhaye’s motion. Woirhaye then applied to this Court for a writ of supervisory control, and this Court accepted jurisdiction.
Discussion
¶6 Does § 46-17-201(3), MCA, infringe upon the rights guaranteed under Article II, Sections 24 and 26 of the Montana Constitution, by allowing a misdemeanor criminal defendant to exercise his right to a jury trial only once, in either justice court or in district court on trial de novo?
¶7 Once this Court has accepted supervisory control, as we have in this case, our standard of review of constitutional questions is plenary. If, upon presentation of a matter to the Court by means of a writ, it is apparent from the record that a relator will be deprived of a fundamental right, both justice and judicial economy require the Court to then resolve the issue in favor of the relator. State ex rel. Coburn v. Bennett (1982), 202 Mont. 20, 34, 655 P.2d 502, 509.
¶8 Section 46-17-201(3), MCA, contains the substantive provisions of Chapter 129, L. 1997. The sponsor of this legislation described it as a bill which “streamlines the process [of criminal misdemeanor trials] and saves counties money and citizens time on juries.” Testimony of sponsor at hearing before Montana Senate Judiciary Committee, March 7, 1997. The other provisions of the Act, codified at §§ 46-7-102(l)(g) and 46-17-311(1), MCA, require the justice of the peace to inform misdemeanor criminal defendants of their “right to elect one jury trial,” and reiterate that jury trial on appeal to district court is available only if jury trial was not elected injustice court.
¶9 The right to trial by a jury of one’s peers has been part of the Anglo-American concept of justice since the Magna Carta was signed in the year 1215. Chapter 39 of the Great Charter provides: “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Like other concepts articulated in the Magna Carta, the concept of the right to trial by jury has flourished and, in fact, expanded over time.
¶ 10 In the United States, the right to trial by jury is guaranteed under Article III, Section 2, clause 3, and the Sixth Amendment to the United States Constitution. The Sixth Amendment right to trial by jury was made applicable to the States under the Due Process Clause of the Fourteenth Amendment.
¶11 In addition, the right to trial by jury is guaranteed under the Montana Constitution. Article II, Section 24, Montana Constitution, sets forth the rights of the criminally accused:
In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same. [Emphasis supplied.]
Article II, Section 26, of the Montana Constitution states that “[t]he right of trial by jury is secured to all and shall remain inviolate,” and further provides that “[i]n all criminal actions, the verdict shall be unanimous.”
¶12 In denying Woirhaye’s motion regarding jury trial, the District Court relied upon Ludwig v. Massachusetts (1976), 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732. In Ludwig, the United States Supreme Court upheld Massachusetts’ two-tiered system of trial courts for criminal cases, in which an initial trial held before a judge sitting as the finder of fact could be appealed to a higher court in which the defendant could obtain a jury trial. The Court held that Massachusetts’ two-tiered system “absolutely guarantees trial by jury to persons accused of serious crimes and ... is fair and not unduly burdensome.” Ludwig, 427 U.S. at 630, 96 S.Ct. at 2788, 49 L.Ed.2d at 741.
¶ 13 Unlike the issue in the present case, the issue in Ludwig related to the right to jury trial as guaranteed under the United States Constitution. The question was further limited to the extent of the Sixth Amendment right to jury trial (“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...”), made applicable to the States through the Fourteenth Amendmént. As the Court pointed out, the Article III, Section 2, clause 3 provision of the United States Constitution stating that “[t]he Trial of all Crimes ... shall be by Jury” does not apply to the States and was therefore not at issue.
¶ 14 Additionally, when interpreting our own State Constitution, we have refused to “march lock-step” with the United States Supreme Court’s interpretation of corresponding provisions in the federal constitution. State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d 61, 75. This is especially true where, as here, the language of the Montana Constitution setting forth the rights guaranteed is not identical to the language used in the federal Constitution.
¶15 In interpreting a constitutional provision, the intent of the framers of the constitutional provision controls its meaning. Keller v. Smith (1976), 170 Mont. 399, 405, 553 P.2d 1002, 1006. The intent of the framers should be determined from the plain meaning of the words used. If that is possible, no other means of interpretation are proper. Keller, 170 Mont. at 405, 553 P.2d at 1006.
¶16 The guarantees of the Montana Constitution are plain on their face in that an accused has an absolute right to a trial by jury “[i]n all criminal prosecutions.” Art. II, Sec. 24, Mont. Const. Further, in all criminal cases an accused has the right to have the jury return a unanimous verdict. Art. II, Sec. 26, Mont. Const.
¶17 These provisions in the Montana Constitution were modeled after Article III, Sections 16 and 23 of the 1889 Montana Constitution, with some changes. A comparison of the 1889 and the 1972 Montana Constitutions shows that the intent of the framers of the present Constitution was to strengthen the jury trial right in misdemeanor cases. Under Article III, Section 23 of the 1889 Montana Constitution, a person could be convicted of a misdemeanor by a jury verdict of two-thirds of the jury’s number. However, the 1972 Montana Constitution strengthened the jury trial right by providing that in all criminal actions, both felony and misdemeanor, the verdict of the jury must be unanimous. Art. II, Sec. 26, Mont. Const.
¶ 18 The State argues that Article II, Section 24 of the Montana Constitution only guarantees the right to “a ... trial by an impartial jury” (emphasis added) in all criminal prosecutions. The State asserts that as long as one jury trial is provided, the constitutional guarantee is satisfied.
¶19 The right to trial by jury is guaranteed not only under Article II, Section 24, but also under Article II, Section 26 of the Montana Constitution: “The right of trial by jury is secured to all and shall remain inviolate.” The State’s argument is not persuasive when measured against the language of Section 26.
¶20 The State also points out that Article VII, Section 4(2) of the Montana Constitution clearly allows for the possibility that laws might be enacted making appeals to district court from justice court not de novo. However, that provision of the Constitution is not implicated in this case. Section 46-17-201(3), MCA, does not alter the de novo nature of appeals from justice court to district court. Moreover, the absence of a guarantee of de novo review does not diminish the right to jury trial in fact finding forums.
¶21 The parties disagree as to whether trial de novo in district court is a different prosecution from the one injustice court. We note that it is a different prosecution in the sense that both the State and the defense are free to bring in new evidence and make new arguments at trial de novo in district court.
¶22 In addition, and regardless of whether justice court and district court proceedings constitute one prosecution or two, it is undisputable that § 46-17-201(3), MCA, acts, in effect, as a forced waiver of the right to a jury trial either at the justice court level or at the district court level. Under this statute, if errors occurred in a justice court jury trial during voir dire, empaneling of the jury, presentation of evidence to the jury, or instructions to the jury, the defendant could not raise these issues on appeal to district court, since an appeal to that court must be by trial de novo. Those issues would not be reviewable by any court, nor would the defendant be entitled to a jury trial in district court. If there were a defect in the jury process injustice court, the only remedy under the statute would be appeal and trial de novo before a judge, not a jury, in district court. This results in the very real possibility that a misdemeanor criminal defendant may be granted no valid jury trial at all.
¶23 The State cites North Central Services, Inc. v. Hafdahl (1981), 191 Mont. 440, 625 P.2d 56, as authority in support of the constitutionality of § 46-17-201(3), MCA. Hafdahl involved a challenge to the small claims court procedure established under Title 25, Chapter 35, MCA (1979). That statutory procedure made no provision for a jury trial in small claims court. This Court stated in that opinion that the constitutional right to trial by jury was satisfied if it was granted at the district court level, though denied at the small claims level. Hafdahl, 191 Mont. at 444, 625 P.2d at 58.
¶24 That language, however, is dicta and not the basis for the holding in Hafdahl. The critical holding on the jury trial issue in Hafdahl hinged on the statutory provision that an appeal from small claims court was limited to questions of law and was not a trial de novo in district court. This Court held that because appeals from small claims court were limited to questions of law, the statute unconstitutionally violated the right to jury trial by effectively denying the right to trial by jury at all levels. Hafdahl, 191 Mont. at 444-45, 625 P.2d at 59.
¶25 It is clear to this Court that under Montana’s Constitution, a defendant has an absolute right not to be convicted of a misdemeanor by less than a unanimous jury. Section 46-17-201(3), MCA, however, forces a misdemeanor defendant to be convicted by a judge, either in justice court or in district court, rather than by a unanimous jury.
¶26 We decline to follow the dicta in Hafdahl that the right to trial by jury is satisfied if it is granted at the district court level although denied at the small claims court level, and we will not follow the dicta in Hafdahl in future cases. We hold that because it impinges upon rights guaranteed under the Montana Constitution, § 46-17-201(3), MCA, is unconstitutional and therefore must be stricken from the laws of this State. For the same reason, the provisions of Chapter 129, L. 1997, which have been codified at §§ 46-7-102(l)(g) and 46-17-311(1), MCA, are stricken as well. ¶27 It is so Ordered.
JUSTICES NELSON, GRAY, TRIEWEILER, REGNIER, LEAPHART and HUNT concur.
|
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] |
On January 24,1997, it was the judgment of this court that the defendant be sentenced to term of incarceration at the Montana State Prison of forty (40) years. The defendant is to be ineligible for parole or any other type of release from Prison until he completes all phases of the sex offender, anger management, moral reconation, and chemical dependency treatment programs available at that facility, and follows all resulting recommendations to the satisfaction of his supervising officer and treatment providers. Of this period of incarceration, ten (10) years are suspended in order to assure a substantial period of supervised probation in the event that the defendant is not granted parole. The defendant must comply with conditions of parole and probation as stated in the January 24,1997 judgment. The defendant is to be given credit for one hundred fifty (150) days served in the Flathead County Detention Center pending final disposition in this matter. As required by Section 46-18-254, M.C. A., the defendant is hereby advised of his obligation to register as a sexual offender.
On June 4,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by attorney Michael Keedy. The State was not represented in person although Ed Corrigan, Deputy County Attorney, sent a letter outlining the State’s views on the matter.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 4th day of June, 1998.
DATED this 17th day of June, 1998.
After careful consideration, there is a split decision of the Sentence Review Board. The Honorable Wm. Neis Swandal and Honorable Jeff Langton vote to affirm the sentence.
Chairman, Hon. Wm. Neis Swandal and Member, Hon. Jeff Langton.
The Honorable Richard Phillips votes to give the sentence that was recommended in the Pre-Sentence Investigation which was 30 years with 10 years suspended. The recommendation from the psychosexual evaluator did not specify a particular prison term but the Pre Sentence Investigation recommended specifically 30 years with 10 suspended, and the undersigned deems the agreement with the specific recommendation binding upon the court.
Member, Hon. Richard Phillips.
The Sentence Review Board wishes to thank attorney Michael Keedy for representing Gary Hughes in this matter and also Ed Corrigan, Deputy County Attorney, for the State’s letter.
|
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] |
JUSTICE REGNIER
delivered the opinion of the Court.
¶1 The appellants, Peter J. Thomas and Leonard L. Thomas, doing business as Stan & Sons Plumbing & Heating, filed an action against their insurer, Northwestern National Insurance Company, in the Third Judicial District Court, Powell County. The thrust of the lawsuit is that Northwestern wrongfully refused to defend and indemnify Stan & Sons under a commercial general liability insurance policy. At issue is a change to a policy exclusion relating to pollution coverage that Northwestern made during an annual renewal of the policy. The District Court granted summary judgment in favor of Northwestern and Stan & Sons appeal. We reverse.
¶2 We restate the dispositive issues as follows:
¶3 1. Did the District Court improperly grant summary judgment in favor of Northwestern by determining that an insurer has no duty to inform its insured of policy changes when said policy is renewed?
¶4 2. Did the District Court improperly conclude that the Unfair Trade Practices Act, specifically § 33-18-242(3), MCA, bars an insured from asserting claims of negligence, bad faith, and breach of a fiduciary duty against its insurer?
¶5 3. Did the District Court err in granting summary judgment in favor of Northwestern on the bad faith claim?
¶6 4. Did the District Court err in granting summary judgment in favor of Northwestern on the breach of fiduciary duty claim?
FACTUAL BACKGROUND
¶7 Appellants provide plumbing and heating services in Deer Lodge, Montana. In March 1989, they purchased a commercial general liability policy from Northwestern through the Greany Insurance Services, Inc., a local independent insurance agency. The policy in question was renewed through the Greany agency on an annual basis for subsequent years through 1993.
¶8 In the spring of 1992, appellants were installing or servicing a furnace for a customer when a fuel oil spill occurred and damaged the customer’s property. The customer filed suit against appellants to recover damages. Appellants tendered the defense to Northwestern, which refused to defend and indemnify the contractor. Northwestern denied it had a duty to defend or indemnify based upon the pollution exclusion contained in the policy. Appellants then hired counsel and defended the action. A verdict and judgment was ultimately entered against appellants in the amount of $48,037.30. Hence, appellants filed this action against Northwestern, seeking indemnification for the judgment and related damages.
¶9 This dispute centers around an exclusion in the commercial liability policy which purports to exclude coverage for pollution incidents. The original policy, which was effective on March 1,1989, included a provision which excluded liability for certain pollution incidents. The declaration page included a reference to “111PLS” which was a schedule of the forms and endorsements that applied to the policy, and appeared immediately following the declaration page. Included on the schedule was an entry titled “AMENDMENT OF POLLUTION EXCLUSION” which was an amendment of the pollution exclusion contained in the body of the policy. The amendment was attached at the end of the policy.
¶10 In 1990 the policy was renewed. The declaration page similarly included a reference to “111PLS” which was the schedule listing the applicable forms and endorsements, again appearing immediately following the declaration page. Listed on the schedule was an endorsement titled “POLLUTION EXCLUSION.” The endorsement itself was attached at the end of the policy and read: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” The endorsement was actually entitled “TOTAL POLLUTION EXCLUSION” and replaced language contained in the body of the policy. Appellants claim that this total pollution exclusion was a broader exclusion than what was contained in the original policy. The policy was subsequently renewed with the total pollution exclusion endorsement in March 1991 and March 1992.
¶11 The appellants claim that the change that Northwestern made to their commercial liability policy substantially changed the coverage and significantly limited Northwestern’s liability for pollution incidents. In their complaint, appellants allege that Northwestern failed to provide them adequate notice, either directly or through Greany, of this substantial change in their policy. Specifically, appellants allege that by not informing them of this important change, Northwestern was negligent, breached an implied covenant of good faith and fair dealing, and breached its fiduciary duty to them as insureds.
¶12 Northwestern moved for summary judgment on several grounds. First, it claims it had no duty to inform appellants of the change in pollution coverage in any other fashion than was done here, that is by amending the policy through renewal. Thus, without a duty, appellants’ negligence action must fail as a matter of law. Second, Northwestern claims that Montana’s Unfair Trade Practices Act, specifically § 33-18-242(3), MCA, precludes appellants from pursuing any common law theories of recovery.
¶13 The District Court granted Northwestern’s motion for summary judgment and appellants appeal.
STANDARD OF REVIEW
¶ 14 On appeal from a summary judgment, this Court reviews a case de novo based on the same criteria applied by the district court. See Stutzman v. Safeco Ins. Co. (1997), 284 Mont. 372, 376, 945 P.2d 32, 34 (citing Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663). Thus,
[t]he movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [This Court] reviews the legal determination made by a district court as to whether the court erred.
Stutzman, 284 Mont. at 376, 945 P.2d at 34 (quoting Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903). Our review of a summary judgment is much broader than other appeals. See District No. 55 v. Musselshell County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253 (quoting McCain v. Batson (1988), 233 Mont. 288, 298, 760 P.2d 725, 731).
ISSUE 1
¶15 Did the District Court improperly grant summary judgment in favor of Northwestern by determining that an insurer has no duty to inform its insured of policy changes when said policy is renewed?
¶16 In Count I of their complaint, appellants state a claim in negligence against Northwestern. The essence of their claim is that Northwestern had a duty to notify them of any changes in their insurance coverage, either directly or through the agent Greany. Having received no such notification, appellants allege that this duty was breached and they suffered damages as a direct result.
¶17 Nonetheless, the District Court determined that no such duty exists. The court decided that appellants had a duty to read their renewed policies and, had they done so, they would have been aware that the renewed policy included the total pollution exclusion. The District Court, finding that Northwestern had no duty to inform appellants of the policy change other than by changing the policy terms in the renewal, concluded that appellants’ negligence claim must fail.
¶18 At the outset, it is important to note that the record contains no analysis of the differences between the pollution exclusion in the 1989 policy and the total pollution exclusion contained in the subsequent policies. Northwestern, indeed, argues that the 1992 pollution incident would not have been a covered loss under either exclusion. Although this analysis may be probative on the issue of whether Northwestern breached any duty owed to appellants, or whether appellants suffered damages, it is not relevant to the question of whether a duty exists. It is clear that the District Court determined that Northwestern had no duty to appellants under their negligence theory without reaching issues of breach and causation.
¶19 Whether a legal duty is owed from one party to another is a question of law. See Nautilus Ins. Co. v. First National Ins., Inc. (1992), 254 Mont. 296, 299, 837 P.2d 409, 411 (citing Roy v. Neibauer (1981), 191 Mont. 224, 226, 623 P.2d 555, 556). Although the Montana Supreme Court has never directly addressed this precise issue, that is what duty an insurer owes its insured when it changes policy coverage on policy renewal, we now hold that when an insurer renews a previously issued policy, it has an affirmative duty to provide adequate notice to the insured of changes in coverage.
¶20 Appellants persuasively argue on appeal that in Montana insurers are required by statute to notify their insureds of policy changes and this statutory obligation creates the duty not found by the District Court. Specifically they refer us to § 33-15-1106, MCA, which requires that an insurer provide the insured written notice thirty days in advance of the changes. Section 33-15-1106, MCA (1991), states, in part:
If an insurer offers or purports to renew a policy but on less favorable terms, at a higher rate, or at a higher rating plan, the new terms, rate, or rating plan take effect on the policy renewal date only if the insurer has mailed or delivered notice of the new terms, rate, or rating plan to the insured at least 30 days before the expiration date.
¶21 Northwestern contends that this statutory obligation was not raised in the District Court and the appellants should not be allowed to make this argument on appeal. The insurer further argues that the statute does not apply in this instance because there were no meaningful differences between the pollution exclusions in 1989 and subsequent years.
¶22 Although we recognize that the statutory obligation was not raised in the District Court, the appellants alleged in their complaint that the insurer had a duty to notify its insureds of the policy change. The statutory basis simply represents further legal support of such a duty and does not raise a new theory of liability on appeal. In our de novo review of a district court ruling on summary judgment, we are not bound by the legal authority presented in the district court. Furthermore, both sides have extensively briefed and argued this issue on appeal.
¶23 We also are mindful that Northwestern steadfastly maintains that the 1992 incident would not have been covered under the original policy and therefore there was no need to provide notice. Again, the District Court never reached that point in its negligence analysis. The court held that there was no duty as a matter of law. Whether there would have been coverage under the original policy will be an issue we expect will be addressed on remand.
¶24 In passing, we also observe that other courts which have addressed this issue have held that when an insurer renews a policy, the burden is on the insurer to notify the insured if the policy differs from the original policy. Representative of these decisions is United States Fidelity & Guar. Co. v. Quisel (D. Mont. 1990), 7 M.F.R. 483 (No. CV 89-149-BLG- JFB) (an insurer’s failure to provide adequate notice of coverage changes will equitably estop the insurer from using the protection of the changes, and the more expansive coverage under the terms of the previous policy will apply); Woodlawn Fraternal Lodge No. 525, F. & A.M. v. Commercial Union Ins. Co., O.M. (Ala. 1987), 510 So. 2d 162, 164 (failure to notify an insured that renewal policy differs from original results in insured’s being entitled to coverage under the policy as originally issued); Canadian Universal Ins. Co. v. Fire Watch, Inc. (Minn. 1977), 258 N.W.2d 570,575 (when an insurer by renewal of a policy or by endorsement to an existing policy substantially reduces coverage provided the insured, the insurer has an affirmative duty to notify the insured in writing of the change in coverage); see also General Agents Ins. Co. v. St. Paul Ins. Co. (Ark. Ct. App. 1987), 732 S.W.2d 868, 870; Campbell v. Insurance Service Agency (Minn. Ct. App. 1988), 424 N.W.2d 785, 790; Hester v. American Family Mut. Ins. Co. (Mo. Ct. App. 1987), 733 S.W.2d 1, 2.
¶25 The reasoning behind this duty imposed by our Legislature and the case law from other jurisdictions is sound. As with the original policy, a renewal policy is a contract. As with any contract, the parties must necessarily agree on the terms of the renewal coverage. Certainly the insured has a reasonable expectation that his insurance policy will not be renewed on less favorable terms unless the insurer affirmatively notifies him of the changes. Under the circumstances of this case, whether such an obligation was breached by Northwestern and whether appellants were damaged thereby is yet to be determined.
¶26 It is important that we address one additional aspect of the District Court’s summary judgment ruling because it may have relevance on remand. In reaching its decision that the insurer had no duty to notify its insureds of the subsequent policy changes, the District Court focused its attention on the general rule that an insured has an obligation to read and examine the insurance policy. The court determined that in this instance the appellants had an obligation to read their policy and, had they done so, it would have been clear to them that the pollution exclusion was changed.
¶27 The appellants, however, point to our recent decision in Fillinger v. Northwestern Agency, Inc. (1997), 283 Mont. 71, 77-80, 938 P.2d 1347, 1351-52, where we held that the extent of an insured’s obligation to read the policy depends upon what is reasonable under the facts and circumstances of each case. Northwestern correctly points out that Fillinger was a dispute between an insured and his agent where we held that the insured could reasonably rely on the affirmative representations of the agent instead of reading all the provisions of the policy. Northwestern argues that in disputes between insureds and their insurers, the insured has a duty to read the policy and notify the insurer of any discrepancy. Floral Consultants, Ltd. v. Hanover Ins. Co. (Ill. App. Ct. 1984), 470 N.E.2d 527 (cited with approval in Fillinger).
¶28 In Fillinger, we concluded that an insured does not have an absolute obligation to read the policy in every situation. Under the facts presented here we cannot conclude as a matter of law, as did the District Court, that the appellants’ failure to read the policy renewal bars their recovery. Reasonable minds may differ on whether one should be expected to read a renewed insurance policy, page by page, to determine if there are any significant changes. In fact, the requirements of § 33-15-1106, MCA (1991), suggest otherwise. We believe most insurance consumers expect the same coverage in a renewal unless the change is conspicuously brought to their attention. Here, a fair comparison of the policies in 1989 and 1990 would reveal no significant changes in either the declaration page or the second page which scheduled the forms and exclusions. One would have to read through the entire policy before reaching the endorsement section where the total pollution exclusion was placed. Even then, the insured would have to compare the total pollution exclusion with the pollution exclusion contained in the original policy to determine if there was any difference. Some courts have decided, and we agree, that where the policy at issue is a renewal policy, the insured’s duty to read it may be less than the insured’s duty to read the original policy. See, e.g., Quisel, 7 M.F.R. at 497; Woodlawn Fraternal Lodge No. 525, 510 So. 2d at 164.
¶29 We conclude that the insurer has the burden to prove that it provided adequate notice of policy changes to its insured. Whether there is adequate notice depends on the facts and circumstances in each instance.
ISSUE 2
¶30 Did the District Court improperly conclude that the Unfair Trade Practices Act, specifically § 33-18-242(3), MCA, bars an insured from asserting claims of negligence, bad faith, and breach of a fiduciary duty against its insurer? ¶31 In further support of its summary judgment order, the District Court determined that Montana’s Unfair Trade Practices Act precludes appellants from prosecuting common law tort claims against Northwestern. Section 33-18-242(3), MCA, provides:
An insured who has suffered damages as a result of the handling of an insurance claim may bring an action against the insurer for breach of the insurance contract, for fraud, or pursuant to this section, but not under any other theory or cause of action. An insured may not bring an action for bad faith in connection with the handling of an insurance claim.
(Emphasis added.)
¶32 The District Court concluded that appellants’ allegations against Northwestern were encompassed in the language of § 33-18-201(5), MCA, which defines an unfair settlement practice as “fail[ure] to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed.” Thus, the District Court determined that appellants were limited to the causes of action permitted by § 33-18-242(3), MCA.
¶33 We conclude that the District Court misconstrued the nature of appellants’ complaints. The Unfair Trade Practices Act was crafted by the Legislature to address the unfair treatment of insureds by their insurance companies in the “handling of insurance claims.” A cursory review of the practices outlawed by the Act, found in § 33-18-201, MCA, clearly points out that the Act addresses the relationship between an insured and an insurance company once a claim has been filed. Under § 33-18-201(5), MCA, relied on by the District Court, an insurer is required to either affirm or deny coverage within a reasonable time after a claim is presented. The appellants’ causes of action focus on Northwestern’s conduct during the renewal of the policy, not on the improper handling of the claim or on dilatory claims processing, which § 33-18-201(5), MCA, prohibits. All of appellants’ tort claims pertain to events that occurred prior to the handling of the claim.
¶34 Northwestern argues, however, that suit was filed by appellants only after their demand for insurance coverage was denied. Although appellants were not aware of the policy change until a claim for coverage was denied, it certainly was not a tardy response to a claim that was the nature of their complaints. A plain reading of § 33-18-201, MCA, simply does not address the conduct which is the subject matter of the appellants’ tort claims.
¶35 It is also clear that the Legislature did not intend the Unfair Trade Practices Act to be the exclusive remedy in litigation instituted by insureds against their insurers. Section 33-18-242(6)(a), MCA, provides that “[a]n insured may file an action under this section, together with any other cause of action the insured has against the insurer.” To interpret § 33-18-242, MCA, as an exclusive remedy, would cause us to insert language in § 33-18-242, MCA, that does not already exist. See § 1-2-101, MCA.
¶36 The authority cited by Northwestern to support its position that the Act precludes appellants from pursuing their common law claims is not persuasive. See, e.g., Fidelity and Guar. Ins. Co. v. Woodward (D. Mont. 1995), 19 M.F.R. 517 (No. CV 93-11-BLG-JDS); Van Valkenburg, et al. v. State Farm Mut. Auto. Ins. Co. (D. Mont. 1992), 12 M.F.R. 232 (No. CV 92-38-BLG-JFB). Each of these cases involve litigation originating from the actual handling of an insurance claim. Here, appellants allege pure common law claims without adding violations of the Unfair Trade Practices Act.
¶37 Therefore, we hold that § 33-18-242(3), MCA, does not bar appellants’ common law causes of action.
ISSUE 3
¶38 Did the District Court err in granting summary judgment in favor of Northwestern on the bad faith claim?
¶39 Although the District Court decided that the Unfair Trade Practices Act barred the appellants’ common law claims, the court proceeded to further evaluate the claims. Given our conclusion that the claims were not barred by the Act, it is now necessary that we address the District Court’s continued analysis.
¶40 The District Court determined that, regardless of implication of the Unfair Trade Practices Act, our decision in Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767, prevents the appellants from bringing their bad faith action. In Story, this Court significantly restricted the scope of what was commonly known as the tort of bad faith. Recognizing that the tort’s most common application in Montana jurisprudence was codified in the Wrongful Discharge from Employment Act and the Unfair Trade Practices Act, this Court went further and held that the tort can only be pursued in a contractual setting where “special circumstances” exist between the parties and the matter is not otherwise controlled by specific statutory provisions. Here, the District Court held that appellants could not pursue their bad faith action because it was not only barred by the Unfair Trade Practices Act, but also by our holding in Story.
¶41 In O’Fallon v. Farmers Insurance Exchange (1993), 260 Mont. 233, 859 P.2d 1008, we held that when the Unfair Trade Practices Act does not apply to the cause of action against an insurer, an insured may bring an action under the common law. Citing § 1-1-108, MCA, we stated that when the common law is not in conflict with the statutes, it shall be the law. See O’Fallon, 260 Mont. at 244, 859 P.2d at 1015. In Stephens v. Safeco Insurance Co. of America (1993), 258 Mont. 142, 145, 852 P.2d 565, 567-68, we stated that “[i]nsurance companies have a duty to act in good faith with their insureds, and this duty exists independent of the insurance contract and independent of statute. If this duty is breached the cause of action of the insured against the insurer sounds in tort.” (Citations omitted.)
¶42 In Stephens, we reviewed an action brought by insureds against their property insurer. Writing for the Court, Justice McDonough noted that the facts giving rise to the claim predated the application of the Unfair Trade Practices Act and, therefore, the insured was entitled to bring common law claims, including a bad faith claim, against the insurer. In his analysis, Justice McDonough scrutinized the relationship between the insured and the insurer to determine whether a special relationship existed to allow the bad faith claim. In carefully evaluating the relationship between the insured and insurer against the five elements of Story, Justice McDonough concluded that such a special relationship existed:
Story adopted five elements to be applied in determining whether the parties have a special relationship:
(1) the contract must be such that the parties are in inherently unequal bargaining positions; [and] (2) the motivation for entering the contract must be a non-profit motivation, i.e., to secure peace of mind, security, future protection; [and] (3) ordinary contract damages are not adequate because (a) they do not require the party in the superior position to account for its actions, and (b) they do not make the inferior party “whole”; [and] (4) one party is especially vulnerable because of the type of harm it may suffer and of necessity places trust in the other party to perform; and (5) the other party is aware of this vulnerability.
Story, 791 P.2d at 776.
When these five elements are applied to this case, the special relationship is established. First, in the insurance context, the insurer occupies the superior bargaining position and the insured in the inferior. This is because “in the insurance field the insured usually has no voice in the preparation of the insurance policy ...” Goddard, 593 P.2d at 1047. There is a “great disparity between the economic positions of the parties to a contract of insurance. ...” Goddard, 593 P.2d at 1047.
Second, the insured has a non-profit motive for entering into the insurance contract. “The insured seeks to purchase protection and security.-This expectation is perhaps justified, if not entirely motivated, by insurers’ advertisements promising security and freedom from worry.” Graham and Luck, “The Continuing Development of the Tort of Bad Faith in Montana,” 45 Mont.L.Rev. 43, 46 (1984).
Third, ordinary contract damages would not make appellants whole. Appellant Tom Stephens suffered from severe mental distress due to the problems with the insurance claim. He incurred certain medical expenses in connection with that distress.
Fourth, “at the time an insured party makes a claim he may be in dire financial straits and therefore may be especially vulnerable to oppressive tactics by an insurer seeking a settlement of a release.” Goddard, 593 P.2d at 1047. Finally, the fifth element applies because the insurer is the author of the insurance contract and is aware of the insured’s vulnerability. “The special considerations existent in a consumer-held insurance contract do not apply to an ordinary contract between businessmen.” Goddard, 593 P.2d at 1047.
Stephens, 258 Mont. at 145-46, 852 P.2d at 567-68. The same reasoning applies here.
¶43 Thus, we conclude that appellants’ allegations that Northwestern breached its implied duty of good faith and fair dealing survive.
ISSUE 4
¶44 Did the District Court err in granting summary judgment in favor of Northwestern on the breach of fiduciary duty claim?
¶45 In the District Court’s opinion and order granting summary judgment, the relationship between the Greany Insurance Agency and Northwestern was examined to determine if Greany was an agent of Northwestern, thus making his acts and, more importantly, his omissions, imputable to Northwestern. Predictably, appellants maintain that a fair and complete evaluation of the relationship leads one to the inescapable conclusion that Greany was the agent of Northwestern. Just as predictably, Northwestern argues that the relationship was defined and limited and could not be construed as a relationship which would allow Greany’s acts and omissions to be imputed to Northwestern.
¶46 It is clear that the District Court believed that Greany was at least an ostensible agent of Northwestern, in its final analysis, the District Court concluded that it made little difference whether an agency existed; however, the court referred to the following statutory references:
33-15-302. Policy must contain entire contract. The policy, when issued, shall contain the entire contract between the parties, and neither the insurer or any insurance producer or representative thereof nor any person insured thereunder shall make any agreement as to the insurance which is not plainly expressed in the policy. This provision shall not be deemed to prohibit the modification of a policy, after issuance, by written rider or endorsement duly issued by the insurer.
Section 33-15-302, MCA.
33-15-316. Construction of policies. Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application which is a part of the policy.
Section 33-15-316, MCA. The court held that ostensible agency was irrelevant because the insurance policy represented the final expression of the negotiations and the intent of the parties.
¶47 However, we see no correlation between appellants’ claim that Northwestern breached a fiduciary duty by failing to disclose a policy change during renewal and the ultimate validity of the amended policy. The provisions in the insurance code are directed to the question of whether the policy can be verbally altered by the insurer’s agent. If Northwestern’s agent fails to disclose the change to the insureds’ detriment, certainly such conduct may give rise to a tort action notwithstanding the above statutes.
¶48 In conclusion, we reverse the District Court’s order for summary judgment on all the foregoing issues and remand this matter to the District Court for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and TRIEWEILER concur.
. We held that the Unfair Trade Practices Act does not apply to an action against an individual because the Act references only an insurer. Therefore, the common law applies. See also Klaudt v. Flink (1983), 202 Mont. 247,659 P.2d 1065.
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On April 8,1998, the Defendant was sentenced to the Department of Corrections for a term of five (5) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institute. It is the recommendation of the Court that the Defendant be considered for placement in any available programs through the Department of Corrections with the recommendation that the Defendant shall obtain alcohol treatment, criminal thinking and any other programs determined appropriate. The Defendant shall register as a sexual offender, pursuant to Section 46-23-504, 46-23-505, and 46-23-506, MCA, with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for the remainder of his lifetime following release from custody. Further, pursuant to Section 46-23-103, MCA, the Defendant shall provide a blood sample for DNA testing. Two (2) years of the Defendant’s term is hereby suspended on numerous terms and conditions.
On August 13,1998, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Larry Mansch. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank attorney Larry Mansch for representing Robert Ashwood in this matter.
|
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] |
On September 10,1997, it was the judgment of the Court that defendant’s prior deferred sentence is hereby revoked and that the defendant be and she is hereby sentenced to a term of ten (10) years in the Montana Women’s Prison at Billings, Montana. The sentence shall run concurrently with the sentence imposed in Cause No. 12527. It is the recommendation of the Court to the Montana Women’s Prison authorities that they assist the Evered family in whatever way possible so that the defendant may be a kidney donor for her father. Due to the defendant’s failure to comply with the terms and conditions of her deferred sentence while under the supervision of the Department of Probation and Parole, the Court finds that she is not entitled to receive, and shall not receive, credit for any elapsed time between the date of her conviction and the date of this Order, except that she shall receive credit from August 20,1995, through August21,1995;from June 11,1996, through June 26,1996; from July 2, 1997, through July 23, 1997; and from September 3, 1997, through date of sentencing, September 10,1997, for forty-eight (48) days jail time which she has previously served.
On April 10, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Rebecca Lynn Evered for representing herself in this matter.
|
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] |
On September 5,1997, it was therefore ordered, adjudged and decreed that the said Carl Noel be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, as follows: 1. On Count I: Deceptive Practices (Felony) the defendant is hereby sentenced for the term often (10) years; 2. On Count II: Criminal Possession of Dangerous Drugs (Felony) the defendant is hereby sentenced for the term of five (5) years to run consecutively with Count I of this criminal cause; 3. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 145 days. It is further ordered that should the defendant be paroled, conditions shall apply as stated in the September 5,1997 judgment. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for each conviction pursuant to 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for each conviction for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) for each conviction to the Treasurer of this County. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
above-conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was represented by Joe Coble, Deputy County Attorney.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Carl Noel for representing himself in this matter and Joe Coble, Deputy County Attorney, for representing the State.
|
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] |
O n March 8, 1995, the court ordered that the defendant shall be punished by confinement in the Women’s Correctional Facility for a term often (10) years on Count I, with three (3) years suspended; for a term of five (5) years on Count II, with all suspended; and for a term of five (5) years on Count III, with all suspended. The sentence imposed on Count III shall run consecutive to the sentence imposed on Count II. The sentences imposed on Counts II and III shall run consecutive to the sentence imposed on Count I, for a total sentence of twenty (20) years, with thirteen (13) years suspended. The defendant shall receive credit for time served on these offenses, which as of the date of this Judgment totals thirty-nine (39) days. The Court as this time does not make a designation of the defendant as a dangerous or non-dangerous offender for purposes of parole eligibility. The Court specifically reserves the right under MCA 46-18-404(4) to make a determination of whether the defendant is a dangerous or non-dangerous offender at the time of a revocation of suspended sentence and reserves the right under MCA 46-18-202 to impose the restriction that the defendant be ineligible for parole while serving her term in the event that the defendant violates any condition of probation which results in revocation of her suspended sentence. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the March 8, 1995 judgment, and the Court reserves the right to impose additional conditions of probation. The Court further orders that the defendant shall pay to the Lake County Drug Fund the sum of Five Hundred Dollars ($500.00) on Count I, the sum of Five Hundred Dollars ($500.00) on Count II, and the sum of Five Hundred Dollars ($500.00) on Count III. The Court further orders that the defendant shall pay surcharges of Fifty Dollars ($50.00) on Count I, Fifty Dollars ($50.00) on Count II, and Fifty Dollars ($50.00) on Count III, as required by law. The Court further orders that the defendant shall pay the mandated supervisory fee of One Hundred Twenty Dollars ($120.00) per year, prorated at Ten Dollars ($10.00) per month, for the number of months under supervision. Payments on the fee shall be made in the amount of Thirty Dollars ($30.00) per quarter to the Clerk of the District Court. The Court further orders that the drug fund fines and surcharges shall be paid to the Clerk of the District Court in monthly payments as determined by her probation officer, which payments shall commence thirty (30) days after the defendant’s release from the Women’s Correctional Facility.
Done in open Court this 10th day of April, 1998.
DATED this 17th day of April, 1998.
On April 10, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to a two (2) year deferred sentence for each of the three counts, to run consecutive plus credit for time served.
Reasons for the amendment are: (1) No prior record. (2) The defendant was in college at the time of sentencing and was doing well. (3) The defendant has a good work history. (4) The sentence originally imposed is excessive compared to other sentences around the state for similar offenses, that is, selling less than Vz ounce of marijuana. (5) The record available to this division does not show that the Court considered the criteria found in §46-18-225, M.C.A, for sentencing nonviolent offenders.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Bethany Lee Long for representing herself in this matter.
|
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] |
On April 27, 1998, the Defendant was sentenced to twenty (20) years in the Montana Women’s Prison, with fifteen (15) years suspended, on Count I; twenty (20) years in the Montana Women’s Prison, with all twenty years suspended, on Count II; twenty (20) years in the Montana Women’s Prison, with all twenty years suspended, on Count III; twenty (20) years in the Montana Women’s Prison, with all twenty years suspended, on Count TV; and twenty (20) years in the Montana Women’s Prison, with all twenty years suspended, on Count V. Counts II-V shall be served concurrently to each other, but consecutively to the sentence imposed in Count I.
On September 18,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by John Atkins. The state was represented by Martin Lambert, Gallatin County Attorney.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insuffi cient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 18th day of September, 1998.
DATED this 29th day of October, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank John Atkins and Martin Lambert for representing Ms. Catterlin and the State in this matter.
|
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] |
On October 1,1997, the Defendant was sentenced to a five (5) year commitment to the Department of Corrections for the offense of Criminal Possession of Dangerous Drugs, a felony.
On September 18,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and informed of her right to be represented by counsel. Defendant proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insuffi cient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 18th day of September, 1998.
DATED this 29th day of October, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Robert Boyd, AJt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Carla Hasenclever for representing herself in this matter.
|
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On August 19,1997, it was ordered that the defendant, Harrison Tsosie, is sentenced for Count I: Burglary, a Felony, to the Montana State Prison for twenty (20) years with five (5) years suspended. Credit is given for the 179 days served in j ail. It is further ordered that the defendant, Harrison Tsosie, is sentenced for Count II: Assault, a Misdemeanor, to the Cascade County Jail for six (6) months. These sentences are to run consecutively with one another and any other sentence defendant receives from Missoula County. These sentences have conditions which are stated in the August 19,1997 judgment.
On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present via phone call and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Harrison Nakai Tsosie for representing himself in this matter.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 Plaintiff Lincoln County Commission filed this action in the District Court for the Nineteenth Judicial District in Lincoln County, Montana, for the release of investigative material held by the defendant Lincoln County Sheriff and the Criminal Investigation Bureau of the Montana Department of Justice (CIB). The District Court issued an order in which it denied the Commission’s request for a hearing, denied the Commission’s request for dissemination of the investigative material, and denied the Commission’s request for fees and costs. The District Court then dismissed the complaint and application for release of investigative materials with prejudice. The Commission appeals from that order. We reverse and remand.
¶2 The dispositive issue on appeal is:
¶3 Did the District Court err when it dismissed the Commission’s application without conducting an evidentiary hearing or in camera review?
FACTUAL BACKGROUND
¶4 On March 31, 1998, the members of the Commission were informed that they were the targets of an investigation initiated by the office of the Lincoln County Sheriff. The investigation related to the allegedly improper use of county funds for mileage and meal expenses.
¶5 Detective Craig Martin, then in charge of the investigation, took the statement of Commissioner Larry Dolezal on April 1,1998. The detective assured Dolezal that a copy of the statement would be made available to him. The next day, Dolezal requested a copy of his statement from the Sheriff’s Office. On April 3,1998, Lincoln County Attorney Bernard Cassidy informed Detective Martin that, due to potential conflicts of interest, the investigation should be turned over to the CIB.
¶6 On April 6,1998, a newspaper article was published which revealed details of the investigation. A follow-up article appeared two days later. According to the newspaper, an “unidentified spokesman from the Lincoln County Sheriff’s Office” provided the information for the articles. Two other area newspapers subsequently revealed that they had also been approached by an “unidentified spokesman from the Lincoln County Sheriff’s Office.”
¶7 The Lincoln County Sheriff advised Dolezal and the Commission on April 7, 1998, that the investigative materials were unavailable because they had been turned over to the CIB. On April 14,1998, the CIB informed the Commission that because the investigation was ongoing, the materials would not be released.
¶8 The Commission filed the underlying complaint and application in this matter on April 23,1998. The complaint alleged that based on Article II, Section 9, of the Montana Constitution, the Commission was entitled to examine the investigative file. The Commission then scheduled an evidentiary hearing for May 20,1998.
¶9 In response, the CIB asserted that the investigative file contained confidential information, the release of which would compromise both the investigation and the privacy interests of informants and witnesses. The CIB included an affidavit from the principal agent assigned to the investigation which stated that the agent believed that the investigation would be compromised by the disclosure of the identities of “informants, witnesses or victims,” or the information they provided.
¶10 The District Court canceled the hearing. The Commission then renewed its request for an evidentiary hearing and requested in the alternative that the District Court conduct an in camera inspection of the investigative file.
¶11 The District Court denied the requests, denied the application for dissemination of the investigative materials, and dismissed the complaint with prejudice.
DISCUSSION
¶ 12 Did the District Court err when it dismissed the Commission’s application without conducting an evidentiary hearing or in camera review?
¶13 Our standard of review for a district court’s conclusions of law is whether the court’s interpretation of the law is correct. See Bozeman Daily Chronicle v. City of Bozeman (1993), 260 Mont. 218, 222, 859 P.2d 435, 437.
¶14 Article II, Section 9, of the Montana Constitution, provides:
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
¶ 15 The “right to know” is not an absolute right. It is balanced by the “demand of individual privacy,” a right which is also guaranteed by Montana’s Constitution: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Art. II, Sec. 10, Mont. Const.
¶16 A constitutionally protected privacy interest exists when a person has a subjective or actual expectation of privacy which society is willing to recognize as reasonable. See Montana Human Rights Div. v. City of Billings (1982), 199 Mont. 434, 440-41, 649 P.2d 1283, 1287.
¶ 17 In addition to the relevant provisions of the Montana Constitution, the dissemination of criminal justice information is addressed by the Criminal Justice Information Act. See §§ 44-5-101 to -515, MCA.
¶18 Section 44-5-103(3), MCA, defines confidential criminal information to include criminal investigative information. Information collected by a state agency, such as the Lincoln County Sheriff’s Office or the CIB, during a criminal investigation is therefore included within the definition of confidential criminal information.
¶19 Section 44-5-303, MCA, sets forth the restrictions on the release of confidential criminal information:
[Dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure.
¶20 A person is “authorized by law” to receive confidential criminal justice information pursuant to Article II, Section 9, of the Montana Constitution. See Allstate Ins. Co. v. City of Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188. We reaffirmed this holding in Bozeman Daily Chronicle, 260 Mont. at 224, 859 P.2d at 439.
¶21 In Allstate, an insurance company sought access to law enforcement investigative files which contained information related to the death of one of its insureds. We held that the right to know permitted the insurance company access to the widest breadth of information possible, tempered only by the privacy rights of those identified in the investigative materials.
¶22 Our decision in Allstate included the following language:
Because the judiciary has authority over the interpretation of the Constitution, it is the courts’ duty to balance the competing rights at issue in order to determine what, if any information, should be given to a party requesting information from the government.
Allstate, 239 Mont. at 326, 780 P.2d at 189.
¶23 In Bozeman Daily Chronicle, a newspaper sought access to the investigative file of a police officer who was accused of committing sexual intercourse without consent. We held that while the newspaper was authorized by law to gain access to portions of the investigative file, the victim and witnesses had an expectation of privacy which clearly exceeded the merits of public disclosure. We concluded that the proper method of giving effect to the rights of all parties involved was for the district court to conduct an in camera inspection of the investigative file in order to determine what material could properly be released. See Bozeman Daily Chronicle, 260 Mont. at 229, 859 P.2d at 442. See also Allstate, 239 Mont. at 326, 780 P.2d at 189.
¶24 We also balanced the public’s right to know against individual privacy rights in Engrav v. Cragun (1989), 236 Mont. 260, 769 P.2d 1224, wherein we affirmed a district court decision that the demands of individual privacy outweighed the right of a member of the public to gain access to, and then to disseminate, various types of confidential criminal information. In Engrav, a student sought the names of all persons arrested in Granite County during a particular calendar year, the investigative files of those persons, the pre-employment investigative files of the law enforcement officers, and the daily telephone logs of the Sheriff’s Office. We held that the defendants, witnesses, informants, victims, and officers identified in the materials had privacy interests which outweighed the public’s right to know, par ticularly in light of the fact that much of the information the student sought could be acquired in statistical form, without compromising individual privacy interests. See Engrav, 236 Mont. at 267, 769 P.2d at 1228-29.
¶25 Here, the only privacy interest identified is that of the Commission, the same party which seeks the release of the investigative file. The CIB contends that its witnesses and informants also have a subj ective or actual expectation of privacy that society is willing to recognize as reasonable. The Commission’s right to know and the privacy interests of witnesses and informants identified in the investigative materials are potentially at odds. Therefore, the Constitution and our prior case law require that the District Court balance these competing rights.
¶26 While we agree that participants in the investigation may have privacy interests which outweigh the Commission’s right to view the investigative file, the record in this case does not demonstrate that the District Court undertook an analysis of the privacy interests of the parties involved, nor a balancing of those interests against the Commission’s right to know. This is what the Constitution and our prior case law require.
¶27 The CIB has asserted individual privacy rights in the materials sought by the Commission. Without an inspection of the investigative file, the District Court could not have determined the existence or extent of the privacy rights held by unidentified individuals, which must be known in order to balance those rights against the right to know. “A review of such documents is ... essential in determining whether or not the privacy interests of the ... witnesses can be protected while disseminating the remainder of the information.” Bozeman Daily Chronicle, 260 Mont. at 229, 859 P.2d at 442.
¶28 We conclude that in order to balance the respective rights of the parties where an assertion of privacy interests in confidential information sought by a member of the public is made, a district court should conduct an in camera review of the documents or information sought. Only then can it properly balance the respective rights of the parties and protect both rights to the greatest extent possible.
¶29 Accordingly, we reverse the order of the District Court dismissing the Commission’s complaint and request for the release of investigative materials. We remand to the District Court with instructions to conduct an in camera inspection of the investigative file in order to determine what material can be released to the Commission. The CIB and the Sheriff should be given the opportunity to demonstrate why all or portions of the documents should not be released, and the District Court should provide for the release of as much information as possible to the Commission, while maintaining the privacy rights of any witnesses or informants. To the extent the District Court deems it necessary to protect those interests, the release of investigative information should be limited by protective order.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT and REGNIER concur.
|
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] |
On December 21,1997, it was the decision of this court that for the crime of Sexual Intercourse Without Consent, the defendant, Joe Seneca Marez, shall be sentenced to Montana State Prison for a term of one hundred (100) years with forty (40) years of said sentence suspended upon conditions as stated in the December 21,1997judgment. It is the order of this court that for the crime of Aggravated Burglary, the defendant, Joe Seneca Marez, shall be sentenced to Montana State Prison for a term of forty (40) years to run concurrently with the sentence imposed for committing the crime of Sexual Intercourse Without Consent. It is the further order of this court that pursuant to Section 46-18-221, MCA the court finds based upon the defendant’s plea of guilty and the testimony before the court, that while engaged in the commission of the offense, the defendant did knowingly display, brandish or otherwise use dangerous weapons, a knife and a rock, in the commission of the offenses. Accordingly, the court pursuant to Section 46-18-221, MCA 1995 also sentences the defendant to Montana State Prison for an additional ten (10) years with said term to run consecutively to the sentences outlined above. It is the order of this court that while serving the period of incarceration that pursuant to Section 46-18-202(2), MCA 1995 that until completion of both phases of sexual offender program, chemical dependency, anger management, criminal thinking therapy and receives his General Education Degree, the defendant shall not be considered for parole or participation in the supervised release program while serving the above mentioned sentences. It is ordered that the defendant shall be given credit for time served in the Butte Silver Bow County Jail in the amount of 217 days.
On February 20, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 20th day of February, 1998.
DATED this 12th day of March, 1998.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Joe Seneca Marez for representing himself in this matter.
|
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On January 26, 1998, the Defendant was sentenced to eight (8) years imprisonment with the Department of Corrections, with five (5) years suspended and credit for 75 days previously served. During the period of the suspended sentence the Defendant shall be subject to terms and conditions.
On August 14,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
Done in open Court this 14th day of August, 1998.
DATED this 1st day of September, 1998.
The defendant was not present and was represented by Jeremy Yellin. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
|
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JUSTICE HUNT
delivered the Opinion of the Court.
¶ 1 Raymond G. Anderson (Anderson) brought suit against Paul Anthony Freeman (Freeman), Freeman’s employer, Werner Enterprises, Inc. (Werner) (collectively Werner/Freeman), and Georgia Davis Bennett (Bennett) to recover damages he sustained as a result of a three-vehicle accident. Anderson settled his claim against Bennett and Bennett was dismissed from the action. Anderson’s claim against Werner/Freeman proceeded to a jury trial in June 1997, and a jury verdict and judgment was rendered in favor of Anderson by the Eighteenth Judicial District Court, Gallatin County. Werner/Freeman appeals the jury verdict and certain pre-trial, trial, and post-trial rulings made by the District Court. We affirm.
¶2 The following issues are presented for review:
¶3 1. Did the District Court err in denying Werner/Freeman’s motion for a Rule 35, M.R.Civ.P. examination of Anderson?
¶4 2. Did the District Court err in applying Plumb to the instant case and dismissing Werner/Freeman’s cross-claim against Bennett?
¶5 3. Did the District Court err in granting Anderson’s motion for judgment as a matter of law on the issue of Anderson’s comparative negligence?
¶6 4. Did the District Court err in denying Werner/Freeman’s renewed motion for judgment as a matter of law and motion for a new trial?
BACKGROUND
¶7 This accident occurred on March 17, 1993, at approximately 10:00 p.m. Anderson was driving a loaded semi-truck northbound on Highway 191, a two-lane road, a few miles north of West Yellowstone, Montana. Bennett was driving her car southbound on Highway 191. Behind Bennett was Freeman, also driving a loaded semi-truck. The particular stretch of road on which the three drivers were traveling was extremely icy.
¶8 Bennett was rounding a curve and approaching the incline of Horseshoe Hill when she lost control of her car, skidded into the snowbank on the side of the road, and began spinning. At this same time, Anderson had just reached the crest of Horseshoe Hill and was on the decline when he spotted Bennett’s car spinning on the road. Anderson was approximately one half mile from Bennett when he spotted her on the road. Anderson managed to avoid a collision by driving his truck off the road into the snowbank without jackknifing or losing control. Bennett’s car slid past Anderson’s truck. Meanwhile, Freeman, traveling approximately 700 feet behind Bennett, rounded the curve and saw Bennett’s car spinning in the road and Anderson’s oncoming truck. He applied his brakes but could not stop in time to avoid a collision. Freeman’s truck jackknifed and began spinning. On the third revolution, the rear end of Freeman’s trailer collided with the front end of Anderson’s truck. Before the impact, Anderson’s truck was still slowly moving, but the impact immediately stopped Anderson’s truck “in its tracks.” Bennett’s car came to rest at a point 170 feet from where Freeman’s and Anderson’s trucks collided.
¶9 As a result of the accident, Anderson suffered a fractured, dislocated hip. On July 28, 1995, Anderson filed suit against Freeman and Freeman’s employer, Werner, because Freeman was in the course of employment at the time of the accident. In the same complaint, Anderson named Bennett as a co-defendant. Anderson alleged that Werner/Freeman and Bennett were negligent in causing the accident, and sought damages for medical expenses, pain and suffering, loss of earning capacity, and loss of established course of life. Werner/Freeman and Bennett filed cross-claims against each other for contribution and indemnity. On May 9,1997, Anderson settled his claim against Bennett. On May 27,1997, the District Court dismissed Anderson’s claim against Bennett and, over the objection of Werner/Freeman, dismissed Bennett’s and Werner/Freeman’s cross-claims against each other. Anderson’s claim against Werner/Freeman proceeded to trial which was held June 2 through June 6,1997.
¶10 At trial, Werner/Freeman admitted that Freeman was negligent for driving too fast for the conditions. However, Werner/Freeman alleged that Anderson was comparatively negligent for also driving too fast for the conditions and for failing to slow or stop when he had time to do so. At the conclusion of the presentation of evidence, Anderson moved for judgment as a matter of law on the issue of liability, leaving for the jury only the issue of damages. The District Court granted the motion, concluding that there existed no legally sufficient evidentiary basis for a reasonable jury to have found that Anderson was comparatively negligent.
¶11 At the conclusion of the trial, the jury awarded Anderson $690,800 in damages from which the court subtracted $25,000, the amount of Bennett’s settlement. Werner/Freeman renewed its motion for judgment as a matter of law and moved for a new trial. The court denied the motions. More facts will be provided as necessary to dispose of the issues presented.
Issue 1
¶ 12 Did the District Court err in denying Werner/Freeman’s motion for a Rule 35, M.R.Civ.P. examination of Anderson?
¶ 13 The District Court has inherent discretionary power to control discovery based on its authority to control trial administration. State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 67-68, 634 P.2d 648, 650. “Control over pretrial discovery is best exercised by the District Court which is in a better position than this Court to supervise the day to day operations of pretrial discovery.” State ex rel. Guar. Ins., 194 Mont. at 68, 634 P.2d at 650. We review discretionary trial court rulings for abuse of discretion. Eagle Ridge Ranch Ltd. Partnership v. Park County (1997), 283 Mont. 62, 65, 938 P.2d 1342, 1344. Furthermore, the party assigning error to the trial court’s discovery rulings must show prejudice. In interpreting discovery rules, this Court will reverse the trial judge only when his or her judgment may materially affect the substantial rights of the complaining party and allow the possibility of a miscarriage of justice. Granite County v. Komberec (1990), 245 Mont. 252, 261, 800 P.2d 166, 171, overruled on other grounds by Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 214-15, 879 P.2d 715, 722.
¶14 In November 1995, Werner/Freeman sent interrogatories to Anderson asking him whether he was claiming lost earnings and, if so, in what amount. The interrogatories also asked how lost earnings would be calculated, who would testify as to the lost earnings, and with whom Anderson had been employed since the date of the accident. Anderson answered the interrogatories, stating that he was seeking lost earnings in the amount of $87,170, as of October 20, 1995, and that economist Joseph Kasperick would testify as to his lost earnings. Anderson attached Mr. Kasperick’s worksheet calculations, and listed Mike Bartholomew, his friend and owner of a logging business, as an employer. In April 1996, Werner/Freeman deposed Anderson and asked him several questions concerning his lost earning capacity and future employability. Anderson stated that he was working for Mike Bartholomew driving logging trucks. When asked whether he expected this employment to continue in the foreseeable future, Anderson replied, “I think that’s a good possibility, yeah, I don’t know why it wouldn’t be.”
¶15 Approximately two weeks after Anderson’s deposition, his employment with Mike Bartholomew terminated. According to the testimony of Anderson and Mr. Bartholomew, Anderson was terminated because he was no longer healthy enough to do the tasks required of him. Werner/Freeman did not learn of Anderson’s termination from employment until January 22,1997, approximately nine months after Anderson’s deposition, and well after the close of discovery. Werner/Freeman learned of Anderson’s change in employment status when Anderson supplemented his discovery responses by submitting a new economic report indicating that he had been unemployed for a substantial portion of 1996.
¶16 Upon learning of Anderson’s change in employment status, Werner/Freeman moved the court to reopen discovery to allow a Rule 35, M.R.Civ.P. examination (hereinafter Rule 35 examination) of Anderson to ascertain whether Anderson could continue being a logging truck driver and, if not, to ascertain what other employment would be available to Anderson. A hearing was held on the discovery motion at which time Werner/Freeman clarified that it wanted a Rule 35 examination conducted by a vocational rehabilitation expert.
¶17 Anderson opposed the motion on two grounds. First, Anderson refuted allegations that he violated Rule 26(e)(2), M.R.Civ.P., by failing to supplement his prior discovery responses. Anderson claimed that Werner/Freeman’s interrogatory asked only for the names of any employers for whom Anderson had worked since the date of the accident, not whether or not Anderson was employed. Upon this distinc tion, Anderson argued he had no duty to notify Werner/Freeman of his change in employment status.
¶18 Second, Anderson argued that Werner/Freeman’s motion was not warranted because Werner/Freeman was on notice that Anderson was claiming an inability to continue working as a truck driver since the commencement of the lawsuit and had ample opportunity to have Anderson examined by an independent vocational expert. Anderson argued that Werner/Freeman made a tactical decision to forego securing a vocational expert, and should not now be allowed to reopen discovery simply to correct a tactical mistake. The court accepted Anderson’s arguments and denied Werner/Freeman’s request for a Rule 35 examination. However, the court reopened discovery for the limited purpose of allowing Werner/Freeman to depose Anderson and his former employer, Mike Bartholomew, as to the reasons for Anderson’s termination from employment.
¶19 Werner/Freeman assigns error to the court’s denial of its request for a Rule 35 examination. Werner/Freeman points out that its interrogatory specifically asked Anderson who his employers were and how lost earnings would be calculated. Werner/Freeman asserts that Anderson’s lost earnings calculations, were dependent upon his post-accident employment. Werner/Freeman argues that because Anderson’s change in employment status was material to his lost earnings calculation, Anderson was required to supplement his prior discovery responses and notify Werner/Freeman of his employment termination. Werner/Freeman also points out that Anderson stated in his deposition that he was employed by Mike Bartholomew, and expected to be so employed in the foreseeable future. Werner/Freeman argues that when Anderson’s employment terminated, this response was no longer true and Anderson was then obligated to supplement his prior response with the correct information.
¶20 Werner/Freeman further argues that it was prejudiced by the court’s refusal to allow a Rule 35 examination. Werner/Freeman asserts that, upon reviewing Anderson’s initial discovery responses, it concluded that Anderson’s employment as a logging truck driver was the best evidence to refute his claims of lost earnings, lost earning capacity, and loss of established course of life. Werner/Freeman asserts that it relied on Anderson’s discovery responses in deciding to forego securing a damage expert. Werner/Freeman further asserts that when it learned of Anderson’s termination from employment, it attempted to secure a vocational expert by moving for a Rule 35 exami nation. Werner/Freeman argues that the court’s refusal to grant the Rule 35 examination precluded it from rebutting Anderson’s evidence concerning his damages. Werner/Freeman also claims that Anderson gained an unfair advantage when, during his closing argument to the jury, he brought to the jury’s attention the fact that Werner/Freeman had failed to produce any witnesses to rebut the testimony of Anderson’s vocational expert.
¶21 We conclude that the court did not err in denying Werner/Freeman’s motion for a Rule 35 examination. Although Anderson may have had a duty to disclose the change in his employment status, Werner/Freeman cannot claim surprise or prejudice because Anderson, throughout this litigation, asserted an inability to work as a truck driver and based his damage calculations on the assumption that he would not continue working as a truck driver. The record shows that long before the close of discovery, Werner/Freeman knew that Anderson’s treating physician and vocational expert had recommended that Anderson discontinue working as a truck driver. The record also shows that Werner/Freeman knew that Anderson’s post-accident employment was motivated by financial necessity and probably would not continue. Werner/Freeman had within its possession the medical notes of Anderson’s physician indicating that Anderson “was beginning to finally come to the realization that driving his truck was not something that his body was going to tolerate.”
¶22 Despite all indications that Anderson’s employment as a truck driver would not continue, Werner/Freeman made the tactical decision to forego conducting an independent examination of Anderson and securing its own vocational expert. Instead, Werner/Freeman chose to attack the credibility of Anderson through cross-examination. Werner/Freeman must now accept the risks of its tactical decisions. We agree with the District Court that, under the circumstances, Werner/Freeman cannot claim surprise and have discovery reopened for the purpose of securing a vocational expert when it had ample opportunity to do so before the close of discovery. We reject Werner/Freeman’s claim that the court's refusal to grant the Rule 35 examination precluded Werner/Freeman from developing rebuttal evidence concerning Anderson’s damages. Rather, we conclude that it was Werner/Freeman’s trial strategy, not the District Court’s ruling, which kept this rebuttal evidence from being fully developed or argued to the jury. Accordingly, we hold that the court did not abuse its discretion in denying Werner/Freeman’s motion for a Rule 35 examination.
Issue 2
¶23 Did the District Court err in applying Plumb to the instant case and dismissing Werner/Freeman’s cross-claim against Bennett?
¶24 The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶25 In early May 1997, Anderson settled his claim against Bennett for $25,000. Thereafter, upon a joint motion filed by Anderson and Bennett, the court dismissed Werner/Freeman’s cross-claim against Bennett for contribution and indemnity on the ground that Bennett was not subject to claims of contribution and indemnity pursuant to Plumb v. Fourth Jud. Dist. Ct. (1996), 279 Mont. 363, 927 P.2d 1011.
¶26 Werner/Freeman argues that the court misinterpreted Plumb and, therefore, erred in dismissing its cross-claim against Bennett and preventing the jury from apportioning liability between Bennett and Werner/Freeman. Werner/Freeman notes that in Plumb, we held § 27-1-703(6), MCA, unconstitutional because it violated substantive due process to the extent that it allowed apportionment of liability “to parties who were not named in the pleadings and did not have the opportunity to appear and defend themselves.”Plumb, 279 Mont. at 379, 927 P.2d at 1021. Werner/Freeman points out that Bennett was named as a party in the pleadings, and Bennett appeared and defended herself throughout the proceedings until six days before trial. Thus, Werner/Freeman argues, Plumb is distinguishable and does not apply to the instant case. We disagree.
¶27 In State ex rel. Deere v. District Court (1986), 224 Mont. 384, 730 P.2d 396, we interpreted the language in § 27-1-703, MCA (1981), which provides for “contribution ... proportional to the negligence of the parties against whom recovery is allowed.” Based on the plain meaning of this language, we held that persons who have been released from liability by the claimant are not subject to contribution because they are not “parties against whom recovery is allowed.” Deere, 224 Mont. at 393, 730 P.2d at 402. This holding was reaffirmed in Plumb. See Plumb, 279 Mont. at 378-79, 927 P.2d at 1021 (“[Sjettling tort-feasors may not be named as third-party defendants for the purpose of contribution”). We noted in Plumb that the above language in § 27-1-703, MCA (1981), was still present in § 27-1-703(4), MCA (1995). Plumb, 279 Mont. at 379, 927 P.2d at 1021.
¶28 We recognize that the above language was stricken in the 1997 amendments to § 27-1- 703, MCA, effective April 18, 1997. See 1997 Mont. Law, Ch. 293. However, we adhere to the rule that the substantive rights between parties to an action are determined by the law in effect on the date of the injury. Cadwell v. Bechtel Power Corp. (1987), 225 Mont. 423, 425, 732 P.2d 1352, 1354. Further, a statute will not be applied retroactively unless the legislature clearly expressed an intention to so apply it. Cadwell, 225 Mont. at 425, 732 P.2d at 1354. According to 1997 Mont. Law, Ch. 293, the legislature did not intend to apply the 1997 amendments to § 27-1-703, MCA, retroactively. Thus, because the accident in the instant case occurred before the 1997 amendments went into effect, Deere is the applicable law. Because Plumb reaffirmed the Deere rule that settling tort-feasors are not subject to contribution, we hold that the District Court correctly interpreted Plumb and did not err in dismissing Werner/Freeman’s cross-claim against Bennett on the basis of Plumb.
Issue 3
¶29 Did the District Court err in granting Anderson’s motion for judgment as a matter of law on the issue of Anderson’s comparative negligence?
¶30 We review a Rule 50(a), M.R.Civ.P. motion for judgment as a matter of law to determine whether the nonmoving party could prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Cameron v. Mercer, 1998 MT 134, ¶ 8, 289 Mont. 172, ¶8, 960 P.2d 302, ¶ 8. Courts will exercise great self-restraint in interfering with the constitutional right of trial by jury. Cameron, ¶ 8. Unless there is a complete absence of any credible evidence in support of the verdict, judgment as a matter of law is improper. Cameron, ¶ 8. In reviewing a motion for judgment as a matter of law, we adhere to the following well-established principles:
We consider only the evidence introduced by the party against whom the directed verdict is granted. If that evidence, when viewed in a light most favorable to the party, tends to establish the case made by the party’s pleading, we will reverse the directed verdict. The test commonly used to determine if the evidence is legally sufficient to withdraw cases and issues from the jury is whether reasonable persons could draw different conclusions from the evidence.
Riley v. American Honda Motor Co. (1993), 259 Mont. 128, 131, 856 P.2d 196, 198 (citations omitted).
¶31 Werner/Freeman argues that the court erred in granting Anderson’s motion for judgment as a matter of law on the issue of Anderson’s comparative negligence. Werner/Freeman contends that reasonable persons could draw different conclusions from the evidence produced at trial, and that it was possible Werner/Freeman could establish Anderson’s contribution as a proximate cause of the accident.
¶32 In arguing that Anderson was comparatively negligent, Werner/Freeman cites Nissen v. Johnson (1959), 135 Mont. 329, 333, 339 P.2d 651, 653,for the proposition thatadriver has aduty to keep a proper lookout, and Moore v. Jacobsen (1953), 127 Mont. 341, 344, 263 P.2d 713, 715-16, for the proposition that a driver has a duty to take reasonable steps to avoid an accident. Werner/Freeman asserts that the following evidence shows Anderson was driving too fast for the conditions and failed to slow or stop his truck when he had time to do so: (1) several witnesses testified that the road where the accident occurred was extremely icy; (2) Anderson testified in his pre-trial deposition that he was driving 50 miles per hour prior to approaching Horseshoe Hill, and answered “yes” to the question, “and you would have maintained that speed [50 miles per hour] then on through the point of collision with Mr. Freeman’s truck?”; (3) Bennett testified that when she lost control of her car and began sliding, she looked off in the distance, saw Anderson’s oncoming headlights, and, based on her knowledge as a track driver, her “reaction” was that Anderson was far enough away that he had time to stop; (4) Officer Schumacher testified that based on Bennett’s testimony concerning where she lost control of her car on the road, Anderson would have been roughly the distance of two football fields away from Bennett when Bennett lost control; (5) Anderson testified at trial that he did not remember whether he applied his brakes upon seeing Bennett’s spinning car; and (6) Ranger Seibert and Officer Schumacher testified that they did not see any skid marks on the road as evidence that Anderson applied his brakes to avoid the accident.
¶33 We reject Werner/Freeman’s contention that reasonable persons could draw different conclusions from the evidence concerning Anderson’s comparative negligence. First, there exists no evidence supporting Werner/Freeman’s assertion that Anderson failed to keep a proper lookout while driving his track. Second, the above items of evidence are completely lacking in either credibility or foundation to support Werner/Freeman’s assertion that Anderson failed to take reasonable steps to avoid the collision.
¶34 With respect to whether Anderson was driving too fast for the conditions, both Ranger Seibert and Loren Davis, another trucker who was traveling in the same direction as Anderson but quite a distance behind him, testified that from West Yellowstone to midway up Horseshoe Hill, the road was dry. Ranger Seibert and Officer Schumacher testified that Anderson’s speed of 50 miles per hour was prudent for those conditions. Although the road was icy from the crest of Horseshoe Hill to the point where Bennett lost control, Wemer/Freeman offered no credible evidence that Anderson’s truck was traveling at a rate of 50 miles per hour over this particular stretch of the road. Despite Anderson’s pre-trial testimony that he would have maintained his pre-Horseshoe Hill speed of 50 miles per hour to the point of collision, he testified at trial that he could not remember his speed immediately before the collision, and that he would have maintained his speed of 50 miles per hour if he had not seen Bennett spinning out of control. Mr. Davis testified that he traveled the incline of Horseshoe Hill at 35 miles per hour and Officer Schumacher confirmed that, generally, northbound trucks are traveling “very slowly’ by the time they reach the crest of Horseshoe Hill.
¶35 With respect to Anderson’s ability to stop in time to avoid the collision, Wemer/Freeman’s evidence is speculative and lacks foundation. Bennett formed her opinion that Anderson had enough time to stop when it was dark and while she was spinning out of control. Bennett testified that she momentarily lost consciousness and never saw the collision. She admitted that everything happened very quickly.
¶36 With respect to whether Anderson applied his brakes, Anderson’s statement that he could not remember applying his brakes does not prove that Anderson failed to apply his brakes. Similarly, the absence of skid marks does not prove that Anderson failed to apply his brakes. Officer Schumacher testified that the change in conditions caused by falling snow, other vehicles traveling by the accident scene, and sand being spread out on the highway immediately after the collision obliterated any skid marks that may have been left by Anderson.
¶37 Although a driver has a duty to keep a proper lookout and to take reasonable steps to avoid a collision, a driver does not have a duty to anticipate injury which comes about only as the result of the negligence of another. Green v. Hagele (1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. The record shows that Anderson could not have avoided the collision. At trial, Freeman testified:
It’s not conceivable, but the only thing he [Anderson] could have done that he didn’t do was to come to a complete stop, but that would not have stopped the accident from happening. Sol don’t think there is a thing he could have done — there is nothing he could have done that he hadn’t already done. That was clear to me. He was caught in a situation where there was nothing else he could do.
¶38 Considering Werner/Freeman’s evidence, and viewing that evidence in the light most favorable to Werner/Freeman, we are convinced that reasonable persons could draw no other conclusion but that the facts did not support a causal connection between Anderson’s actions and his injuries, and that Werner/Freeman could not prevail on a claim of comparative negligence. We hold that the District Court did not err in granting Anderson’s motion for judgment as a matter of law on the issue of Anderson’s comparative negligence.
Issue 4
¶39 Did the District Court err in denying Wemer/Freeman’s renewed motion for judgment as a matter of law and motion for a new trial?
¶40 The decision to grant or deny a new trial is in the sound discretion of the district court and will not be disturbed absent a showing of manifest abuse of discretion. Baxter v. Archie Cochrane Motors, Inc. (1995), 271 Mont. 286, 287-88, 895 P.2d 631, 632. Generally, a jury award of damages will not be overturned unless it shocks the conscience of the Court. Gibson v. Western Fire Ins. Co. (1984), 210 Mont. 267, 290, 682 P.2d 725, 738. “Where the evidence is substantial, though conflicting, the order [granting a new trial] will be sustained in the absence of... abuse of discretion.” Gibson, 210 Mont. at 290, 682 P.2d at 738.
¶41 After the conclusion of the trial, Werner/Freeman renewed its motion for judgment as a matter of law pursuant to Rule 50(b), M.R.Civ.P., and moved for a new trial, pursuant to § 25-11-102(5) and (6), MCA. Werner/Freeman based its motions on the grounds that Anderson’s damage award was excessive because it was awarded under the influence of passion or prejudice, and was not supported by sufficient evidence. The court denied the motions.
¶42 On appeal, Werner/Freeman advances the same arguments it advanced in the District Court. With respect to excessiveness, Werner/Freeman likens the instant case to Mauer v. Clausen Distrib uting Co. (1996), 275 Mont. 229, 237, 912 P.2d 195, 199, wherein the plaintiff requested $90,000 but was awarded $500,000, an amount more than five times that requested. The Court held that the defendant was entitled to a new trial because the plaintiffs award of $500,000 for loss of established course of fife was excessive. Mauer, 275 Mont. at 237, 912 P.2d at 199. Wemer/Freeman analogizes Mauer to the instant case, noting that Anderson requested $100,000 for loss of established course of life but was awarded $225,000, more than twice the amount requested. On the basis of Mauer, Wemer/Freeman argues that Anderson’s damage award was excessive and that the District Court erred in denying its motion for a new trial.
¶43 Werner/Freeman also cites a compilation from a publication entitled “Jury Verdict Research” wherein $88,000 is the reported statistical median average of total damage awards for hip fracture cases in which the medical expenses incurred are $25,800, the amount incurred by Anderson in this case. Werner/Freeman argues that because $690,800 is more than eight times the statistical average for similar cases, Anderson’s total damage award was excessive. Additionally, Werner/Freeman cites a 1973 Montana case where the plaintiff suffered a fractured pelvis and dislocated hip and received a total damage award of $45,000, an amount fifteen times less than the amount received by Anderson. See McGuire v. Nelson (1973), 162 Mont. 37, 508 P.2d 558.
¶44 We reject Werner/Freeman’s arguments concerning excessive damages. The mere fact that a damage award exceeds that requested by a plaintiff is not in itself a ground for the grant of a new trial. Gibson, 210 Mont. at 290, 682 P.2d at 738. “It is only when the excessive damages appear to have been given by the jury under the influence of passion or prejudice that a new trial may be granted.” Gibson, 210 Mont. at 290, 682 P.2d at 738. Werner/Freeman has failed to present any evidence that the jury was influenced by passion or prejudice.
¶45 Moreover, the authorities on which Werner/Freeman relies are not persuasive. The jury verdict research publication is not legal authority and most certainly would be excluded from a trial as inadmissible hearsay. See Rule 408, M.R.Evid. The verdict in McGuire was rendered twenty-five years ago at a time when the dollar went further than it does today. Moreover, McGuire is distinguishable from the instant case. The verdict in McGuire was based on medical expenses alone; there is no mention of the plaintiff seeking damages for pain and suffering, loss of earnings, or loss of established course of life. McGuire, 162 Mont. at 40, 508 P.2d at 559-60. Lastly, Werner/Freeman’s reliance on Mauer is misplaced. In Mauer, we held that the defendant was entitled to a new trial not because the damage award exceeded that requested by the plaintiff, but because the evidence did not support the jury’s damage award. Mauer, 275 Mont. at 237, 912 P.2d at 199.
¶46 Werner/Freeman next argues that Anderson’s damage award was not supported by sufficient evidence. Werner/Freeman points to the following facts as evidence that Anderson’s damage award was not supported by the evidence: (1) a statement made by Anderson’s surgeon, Dr. Matthews, indicating that he thought Anderson could return to truck driving; (2) statements by Anderson and Dr. Matthews indicating Anderson had ceased using pain medication since April 1993; (3) Anderson’s admission that within a year of his surgery he was able to walk without a limp, and that sincé 1993, he required no further physical therapy; (4) the fact that Anderson was employed as a truck driver from November 1994 to April 1996; (5) a statement made by Dr. Robinson, Anderson’s treating physician, confirming that Anderson’s work as a logging truck driver appeared to be an appropriate work environment for Anderson; and (6) Anderson’s statement that, since his termination from employment, he had been spending time riding his motorcycle.
¶47 We reject Werner/Freeman’s claim of insufficient evidence. We have held:
It is not a question of the amount this Court would have awarded under the circumstances. It is not the amount which in our opinion would compensate the injured party; rather, it is a question of what amount of damages will the record in the case support when viewed ... in the light most favorable to the plaintiff.
Barrett v. Larsen (1993), 256 Mont. 330, 339, 846 P.2d 1012, 1018 (citations omitted). This same rule was established in Mauer. In Mauer, we held that the district court did not err in granting a new trial because “an award must be reduced when it substantially exceeds that which the evidence can sustain.”Mauer, 275 Mont. at 237, 912 P.2d at 199. ¶48 A review of the record in the instant case reveals that Anderson produced substantial evidence to support the jury’s damage award. Anderson testified that at the time of the accident, he was within one and one half years of completing the payments on his $75,000 semi-truck. Anderson’s wife testified that “it was a dream of Ray’s since he was a child, to buy his own truck and drive long haul.” Anderson started his own trucking business in 1984 with a used truck, then sold it to buy the “plush” $75,000 truck. Anderson testified that he enjoyed the independence and freedom of being self-employed. With respect to owning and operating his own truck, Anderson stated, “you can go where you want to go. I like traveling. And I make good money.”
¶49 Both Dr. Matthews and Dr. Robinson described Anderson’s hip injury as “Pipken 4" meaning the most severe. Dr. Robinson stated, ’’you don’t have a grade 4 injury and get a good result.... that’s why it’s the worst grade for this kind of injury." Dr. Robinson opined that the degenerative process in Anderson’s hip would continue and that Anderson may need a second hip replacement. Anderson testified that, despite Dr. Robinson’s recommendation that Anderson seek sedentary work, he went back to truck driving after surgery out of financial necessity. Although in one note Dr. Robinson’s patient record indicated that Anderson’s work environment with Mike Bartholomew was appropriate, the same note stated:
He [Anderson] may continue with activities as comfort permits, but I still recommend avoiding activities of high impact and avoiding situations where he has to be up on his feet for long periods of time.... Only time will tell how long his left hip will perform well over the years.
Anderson stated he no longer took pain medication because “over the years it isn’t good for you. It bothers other parts of your body, digestive system, and so on.” Anderson testified that he continues to feel a great deal of pain with any kind of minor lifting, pushing, walking too much, or even sitting too much. Anderson testified that his sexual relationship with his wife is difficult. He testified that he enjoyed riding his motorcycle on occasion, but that it was painful to get on the motorcycle.
¶50 The vocational rehabilitation expert, Kent Shafer, testified that Anderson’s employment prospects were “quite limited” and his “best option” was employment as a trucking dispatcher. Mr. Shafer concluded that if Anderson could not find sedentary work in the trucking industry, his employment would be limited to entry-level, unskilled jobs. The economic expert, Mr. Kasperick, testified that had Anderson not been injured, he would have earned $40,000 in 1993, and his earnings would have increased each year thereafter.
¶51 We conclude that the evidence supporting Anderson’s damage claims was substantial and straight forward. The record is void of any attempt by Anderson to expand the record for purposes of creating passion or prejudice against Werner/Freeman. We hold that the District Court did not abuse its discretion in denying Werner/Freeman’s renewed motion for judgment as a matter of law and motion for a new trial.
¶52 Affirmed.
JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.
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On October 30,1997, it was the judgment of the Court that the defendant, Rebecca S. Parish is guilty of the felony offense of Forgery, in violation of Section 45-6-325( l)(b), MCA 1995, as charged in Count II of the Information. It is the decision of this court that defendant, Rebecca S. Parrish shall be committed to the custody of the Montana Department of Corrections for placement at the Women’s Correctional Center, Billings, Montana for a term often (10) years. It is further ordered that the defendant shall be given credit for time already served in the Butte-Silver Bow jail in the amount of 51 days. It is further ordered that the sentence imposed in this matter shall run concurrent with that imposed by this Court in Cause No. DC 97-113. The sentence im posed in this matter also shall run concurrent with that imposed by the Montana Seventh Judicial District Court (Dawson County) in Cause No. DC 93-027. It is further ordered that the defendant shall be ineligible for parole in this matter until she completes the chemical dependency treatment program at the Montana Women’s Correction Center.
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
On April 10,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Rebecca S. Parish for representing herself in this matter.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 The plaintiffs, Andrew and Susanna Kelly, commenced this action for declaratory judgment in the District Court for the Fifth Judicial District in Madison County. They sought a determination of their rights in and to a bridge and road which provided access to their property. After a nonjury trial, the District Court held that Kellys were part owners of the bridge and have a limited easement by prescription over the road. Kellys appeal from that judgment. The defendants, James B. Wallace and John C. Wallace, have cross-appealed. We affirm the judgment of the District Court.
¶2 The parties raise five issues on appeal:
¶3 1. Did the District Court err when it defined the scope of Kellys’ prescriptive easement?
¶4 2. Did the District Court err when it denied Kellys’ claim of a general easement by estoppel?
¶5 3. Did the District Court err when it denied Kellys’ claim for a general easement by grant or reservation?
¶6 4. Did the District Court err when it concluded that Kellys were equal owners of the bridge with Wallaces and Finkle?
¶7 5. Should the District Court’s judgment be amended to avoid confusion about purposes for which the easement can be used in the future?
FACTUAL BACKGROUND
¶8 In 1958, Andrew and Susanna Kelly purchased a ranch in Madison County consisting of approximately 3200 acres. At the time of their purchase, there were two roads which provided access to the ranch. The primary road, including a bridge over the Madison River, had been built by Kellys’ predecessor in interest over what was then the Sun Ranch and the Shelton Ranch to provide access from U.S. Highway 287; neither Kellys nor their predecessors had a written grant from the other property owners for use of the road. A county road also provided access to Kellys’ ranch, although it was poorly maintained and impassable in winter.
¶9 Kellys and their three children lived on the ranch property and made substantial improvements to it, including the construction of a second residence, sheds, and corrals. They employed a number of people in their operation of the ranch, several of whom lived on the ranch. They used the primary road and bridge for traditional ranch operations, such as the transport of livestock, crops, and machinery, and for normal social and recreational purposes of Kellys and their guests. Kellys maintained and improved the primary road throughout their use, and residents of the area have consistently referred to the road as “Kellys’ Road” and directed outsiders to Kellys for permission to use it. During what the court determined was the period of acquisition, Kellys did not use the road and bridge for any commercial purpose, other than their family ranch business. They conducted no logging, mining, or commercial guiding on the property.
¶ 10 The District Court found that through their open and notorious use of the road and bridge during the five-year period from 1958 to 1963, Kellys acquired a prescriptive easement over the neighboring properties.
¶11 In 1964, Kellys, along with the defendants’ predecessors in interest and other neighbors, petitioned Madison County to close part of the county road. In reliance on the alternate access provided by the primary road, the petitioners told the county that the county road was “not necessary for the ... residents of this district.” Madison County closed part of the county road pursuant to the petitioners’ request, and eventually other parts of the road were closed as well.
¶12 Kellys replaced the bridge in 1972 at an expense of several thousand dollars. They did not receive prior permission from the owners of the Sun Ranch, on whose property both ends of the bridge sat, but the owners of the Sun Ranch provided some assistance to Kellys during the project. Kellys thereafter posted “No Trespassing” signs on the bridge and maintained and repaired it. Residents of the area referred to the bridge as the “Kelly Bridge,” and Kellys have throughout the years monitored the bridge’s use and maintained and repaired it.
¶13 In 1973, Kellys acquired a second ranch property in Madison County. They transferred their residence to the second ranch and thereafter operated the original ranch during only part of the year. Kellys’ use of the road and bridge lessened as a result, but they, their employees, and their guests continued to use the road for access to the ranch.
¶14 In January and February 1979, a series of certificates of surveys were filed in Madison County by the defendants’ predecessors in interest.
¶15 COS 237 portrayed a subdivision of nine tracts and depicted two easements, one of which conformed to Kellys’ easement, that were designed to provide access to the different tracts. The easements extended to the neighboring property, which is labeled “unplatted,” al though no dominant tenement is identified. Language on the certificate described the property, “subject to all existing easements, and in particular, sixty foot access and utility easements as depicted on the hereunto affixed plat.” All of the land depicted on COS 237 is now owned by defendants John C. and James Wallace.
¶16 COS 238 portrayed a subdivision of five tracts and depicted two easements, one of which conformed to that portion of Kellys’ easement that runs from U.S. Highway 287 to the east bank of the Madison River where the bridge begins. The bridge is not marked, and the surrounding property is labeled “unplatted.” The certificate included virtually the same language as was quoted above on COS 237. One of the tracts included on COS 238 is now owned by defendant Bryan Finkle.
¶17 Finally, COS 250 portrayed a fifty-eight tract subdivision. Multiple easements are depicted with the clear intent to serve as primary roads for access to the various tracts within the subdivision. Many of the easements conform to Kellys’ easement and extend to Kellys’ neighboring property. The surrounding property is labeled “unplatted,” and no dominant tenement is described; there is no other express language on the survey. The land depicted on COS 250 is now owned by defendants Jan Janura and Carol M. Anderson.
¶18 The District Court found that there was no language or any other evidence in any of the certificates that indicated an intent to reserve a sixty-foot wide access and utility easement for Kellys.
¶19 On June 4,1979, defendants John and James Wallace acquired all of the undivided property described in COS 237 by a deed which stated that the conveyance was made “subject to ... all easements, rights-of-way and rights-of-way for roads, ditches and utilities and conditions shown by a physical examination of the property or as shown on the [COS] to the above-described property.” The property rims along the west bank of the Madison River and is connected to the west bank by the bridge in question. Wallaces did not receive a bill of sale or any other written grant to indicate an interest in the bridge, nor did they receive a written easement over any other portion of the access road.
¶20 On April 26,1988, defendant Finkle acquired one of the tracts described on COS 238. The property runs along the east bank of the Madison River and is bordered on the east by U.S. Highway 287. Finkle does not use the access road from the highway over anything but his own property.
¶21 On July 6,1993, defendants Janura and Anderson acquired all fifty-eight tracts depicted in COS 250. The property was described in part by reference to COS 250. It is located west of Wallaces’ property and east of Kellys’ property. The conveyance was made “subject to ... easements for utilities, ditches, streams, canals, and roads or highways as they may be located over, along and across the subject property, now of record or apparent from physical examination and inspection of the premises.” They did not receive any written interest in either the bridge or the access road. Janura and Anderson remain the owners of all fifty-eight tracts, but, in 1994, they placed a conservation easement on fifty-three of the tracts. The effect of the easement was to limit their development on the tracts to two homes and six sleeping cabins in consideration for a federal income tax deduction.
¶22 Kellys, Wallaces, and Janura and Anderson all use the bridge and access road to reach their property. None of the defendants have ever interfered with Kellys’ use of the road or the bridge.
¶23 In 1995, Kellys permitted a movie to be filmed on their ranch. The movie company allegedly damaged the bridge, and Wallaces and Kellys disputed who should be responsible for the alleged damage. Kellys responded by filing a claim for declaratory, injunctive, and other equitable relief in the District Court for the Fifth Judicial District in Madison County. They sought a declaration of their right to use the bridge and the access road over the defendants’ property. Kellys amended their complaint in October 1995 to seek a declaration of their right to a sixty-foot easement for unlimited use. Defendants eventually acknowledged the existence of the easement but denied that it could be used for any purpose.
¶24 After a three-day trial in January 1997, the District Court found that Kellys had acquired a prescriptive easement over the access road and bridge; it rejected Kellys’ claims of an easement by grant or estoppel. Based on the width established during the period of acquisition, the District Court concluded that Kellys’ easement varied from twelve to thirty feet, as defined by the existing roadbed, fences, and ditches. Its scope was further defined by the nature of Kellys’ use during the period of acquisition and, therefore, was limited to traditional ranching operations, noncommercial social and recreational activities, regular maintenance and repair, and “other uses normally associated with a working family ranch that do not significantly increase the burden on the servient estates.”
¶25 The District Court also held that future subdivision of the land, as well as ‘logging, mining, guiding or outfitting, or commercial film making, could arguably significantly impact and increase the burden on the servient estates.” Finally, the District Court concluded that Kellys were entitled to a declaratory judgment that they co-own the bridge with Finkle and Wallaces, to whose land the bridge is attached, but that judgment is enforceable against only the defendants in this case.
ISSUE 1
¶26 Did the District Court err when it defined the scope of Kellys’ prescriptive easement?
¶27 We review a district court’s conclusions of law to determine whether they are correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04. We review a district court’s findings of fact to determine whether they are clearly erroneous. See Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287.
¶28 The defendants stipulated that Kellys own a prescriptive easement over the access road and bridge. The District Court nonetheless found that Kellys established their right to a prescriptive easement by using the road from the time that they acquired the ranch through the five-year statutory period. Based on the easement, the District Court also recognized a “secondary easement to enter Defendants’ properties at all reasonable times to construct, repair and maintain their primary easement as necessary for their enjoyment of it, so long as that entry does not needlessly increase the burden on Defendants’ properties.” Based upon the nature of their use of the road during the prescriptive period of 1958-1963, the District Court concluded that Kellys’ easement encompassed only general ranching and residential uses. It also recognized that Kellys expanded their easement during a second prescriptive period to include access over twelve to thirty feet of road. Kellys contend that the District Court erred by limiting their use of the easement in this fashion.
¶29 First, Kellys claim that the District Court misapplied § 70-17-106, MCA, which states that “[t]he extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.” The District Court concluded in reliance on the statute that Kellys’ use of the road for only general ranching and residential uses during the initial prescriptive period defined the extent of the easement that they acquired by prescription. It therefore held that Kellys were prohibited from using the road for commercial uses, such as logging, mining, and guiding, and for subdivision access, since Kellys did not engage those uses during the prescriptive period.
¶30 Kellys assert that the statute should not be strictly applied. Their primary authority is a 1902 Massachusetts case, which, in reference to horse-drawn carriages, explained that “one must generalize to some extent” when determining the extent of the easement rights acquired by prescription. See generally Baldwin v. Boston & M.R.R. (Mass. 1902), 63 N.E. 428. We are not persuaded by this limited authority.
¶31 The fact remains that this Court has never wavered in its interpretation of § 70-17-706, MCA. We have always held that the statute limits owners of a prescriptive easement to the use that was established during the prescriptive period. See Leffingwell Ranch, Inc. v. Cieri (1996), 276 Mont. 421, 430-31, 916 P.2d 751, 758; Ruana v. Grigonis (1996), 275 Mont. 441, 454, 913 P.2d 1247, 1255; Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 217-18, 879 P.2d 715, 724; Lindley v. Maggert (1982), 198 Mont. 197, 199, 645 P.2d 430, 432; Marta v. Smith (1981), 191 Mont. 179, 183, 622 P.2d 1011, 1013; State v. Cronin (1978), 179 Mont. 481, 490, 587 P.2d 395, 401; Hayden v. Snowden (1978), 176 Mont. 169, 175, 576 P.2d 1115, 1119; O’Connor v. Brodie (1969), 153 Mont. 129, 136, 454 P.2d 920, 924; State v. Portmann (1967), 149 Mont. 91, 96, 423 P.2d 56, 58] Ferguson v. Standley (1931), 89 Mont. 489, 502, 300 P. 245, 250] Lowry v. Carrier (1918), 55 Mont. 392, 398, 177 P. 756, 758; McDonnell v. Huffine (1912), 44 Mont. 411, 427, 120 P. 792, 796-97. We see no reason to alter our application of § 70-17-706, MCA, based on the facts in this case.
¶32 Kellys also contend that the District Court misapplied the statute when it limited the frequency of Kellys’ use pursuant to the statutory language which limits the easement only by the “nature of their enjoyment.” Kellys assume there is a difference between character of use and frequency of use, and that the statute prohibits only changes in the former.
¶33 However, we noted in Cieri that a substantial increase in traffic can constitute an impermissible expansion of easement rights. See Cieri, 276 Mont. at 431, 916 P.2d at 757. We held there that easement owners could not broaden their use to include subdivision access be cause the use was “not contemplated by the original parties to the easements, would be inconsistent with the historical use of the easements, and would constitute an improper burdening of those easements.” Cieri, 276 Mont. at 432-33, 916 P.2d at 758. Cronin also addressed concerns about the expansion of easements to include subdivision use by stating that the easement was “governed by the character of the use made dining the prescriptive period and should not exceed the greatest use then enjoyed.” Cronin, 179 Mont. at 490, 587 P.2d at 401.
¶34 The phrase “nature of enjoyment” therefore includes the frequency with which the easement was enjoyed. Accordingly, we hold that the frequency of use by which owners of an easement by prescription acquired their easement during the prescriptive period may limit the frequency of future use pursuant to § 70-17-706, MCA.
¶35 Based on these conclusions, we hold that the District Court did not err in its application of § 70-17-706, MCA, and its conclusion that Kellys’ prescriptive easement is limited to uses made by Kellys and by the relative burden on the defendants’ property during the prescriptive period.
¶36 Kellys urge this Court to adopt §§ 478 and 479 of the Restatement of Property to permit the expansion of the rights they originally acquired. Section 479 provides that “[i]n ascertaining whether a particular use is permissible under an easement... created by prescription there must be considered... the needs which result from a normal evolution in the use of the dominant tenement.”
¶37 In Warnack, 278 Mont. at 86, 923 P.2d at 1091, we specifically rejected a party’s suggestion that we adopt “an evolutionary approach ... in prescriptive easement cases to allow greater use of the easement over time.” We declined the request to adopt §§ 478 and 479 of the Restatement and held that “[t]he rule expressed in Marta and Ruana accurately reflects the scope of prescriptive easements in Montana.” Warnack, 278 Mont. at 87, 923 P.2d at 1091. Ruana and Marta represent the long-standing rule in Montana that the right to use an easement acquired by prescription cannot exceed the use which was made during the prescriptive period. See Ruana, 275 Mont. at 454, 913 P.2d at 1255; Marta, 191 Mont. at 183, 622 P.2d at 1013.
¶38 We do not agree with Kellys’ argument that the result in this case is so “fundamentally unfair” that we should reconsider our prior rejection of §§ 478 and 479.
ISSUE 2
¶39 Did the District Court err when it denied Kellys’ claim of a general easement by estoppel?
¶40 “Equitable estoppel is not favored and will be sustained only upon clear and convincing evidence.” Ducham v. Tuma (1994), 265 Mont. 436, 441, 877 P.2d 1002, 1006; see also Dagel v. City of Great Falls (1991), 250 Mont. 224, 235, 819 P.2d 186, 193. A party must demonstrate six essential elements to satisfy the doctrine of equitable estoppel:
(1) there must be conduct, acts, language, or silence amounting to a representation or concealment of material facts; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under the circumstances that it is both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it; and (6) he must in fact act upon it in such a manner as to change his position for the worse.
Dagel, 250 Mont. at 234-35, 819 P.2d at 192-93; see also Ducham, 265 Mont. at 441-42, 877 P.2d at 1006; Kephart v. Portmann (1993), 259 Mont. 232, 237, 855 P.2d 120, 123. The rule is designed to prevent one party from suffering a gross wrong at the hands of another party who has brought about the condition. See Kenneth D. Collins Agency v. Hagerott (1984), 211 Mont. 303, 310, 684 P.2d 487, 490; Hostetter v. Inland Dev. Corp. of Montana (1977), 172 Mont. 167, 175-76, 561 P.2d 1323, 1328.
¶41 Kellys assert that they are entitled to an easement by estoppel with rights as broad as the ones they abandoned when the county road was closed. They assert that when the defendants’ predecessors joined them in the petition to close the county road on the basis that it was not necessary for access to Kellys’ property, a representation was made that the access road could be used to the same extent as the county road. They contend that in light of this representation by the defendants’ predecessors in interest, it would be unjust for Kellys to be denied general access over the defendants’ property.
¶42 Defendants, on the other hand, deny that the petition that stated that the county road was no longer necessary was a representation that the easement could be used for any purpose. The District Court agreed with defendants and denied the easement by estoppel, based on its conclusion that “[t]he fact of the petition alone... should not be construed as a ‘representation of material fact.’ ” It also found that there was no evidence that the defendants’ predecessors in interest had done anything that would entitle Kellys “to believe they had an easement of the same size and scope over Defendants’ predecessors’ properties as the county road.” Our review of the record leads us to the same conclusions.
¶43 Equitable estoppel is based on the principle that a party cannot, through his intentional “conduct, actions, language, or silence,” induce another party to unknowingly and detrimentally alter his position and then subsequently deny the just and legal consequences of his intentional acts. For that reason, an equitable estoppel claim rests on the concealment or representation of facts by the estopped party. See In re Marriage of K. E.V. (1994), 267 Mont. 323, 332, 883 P.2d 1246, 1252. The party who asserts equitable estoppel as the basis of its claim bears the affirmative burden of proving the elements of estoppel. See O’Neill v. Wall (1936), 103 Mont. 388, 399, 62 P.2d 672, 677; see also Cedar Creek Oil & Gas Co. v. Fidelity Gas Co. (9th Cir. 1957), 249 F.2d 277, 281; E.F. Matelich Constr. Co. v. Goodfellow Bros., Inc. (1985), 217 Mont. 29, 33, 702 P.2d 967, 969.
¶44 The petition which Kellys rely on to establish their claim stated that the residents of the area, including Kellys, felt that the county road “was no longer necessary.” Kellys contend that this language recognizes an easement equivalent to the county road. We agree with the District Court that the language cannot be interpreted so expansively. There is nothing in the petition to suggest that the parties to the petition anticipated any greater use of the private road than the use to which it was being put at the time the petition was submitted.
¶45 There is no evidence that the defendants’ predecessors in interest promised a sixty-foot general easement, nor that the residents who submitted the petition could be assured that they would retain county road-like access. Kellys counter that “[t]here is simply no evidence that [they], being reasonable people, would sign away such rights unless they understood their access on the Road afforded them comparable access.” As stated above, however, the burden rests on Kellys to establish an estoppel. It was not the defendants’ burden to explain the petition for county road closure. As the District Court found, the defendants’ predecessors in interest did nothing that would entitle Kellys to believe that they could consider the access road as though it was either at the time or in the future available for their unlimited use. Accordingly, we affirm the District Court’s denial of Kellys’ claim to a sixty-foot-wide general easement by estoppel.
ISSUE 3
¶46 Did the District Court err when it denied Kellys’ claim of a general easement by grant or reservation?
¶47 Kellys assert that the references to an easement in the deeds of conveyance between the defendants’ predecessors in interest and the defendants are effective as a matter of law to reserve a sixty-foot general easement in Kellys’ favor.
¶48 An easement by reservation may be established by reference in a document of conveyance to a recorded COS which adequately describes the easement. See Halverson v. Turner (1994), 268 Mont. 168, 885 P.2d 1285; Bache v. Owens (1994), 267 Mont. 279, 883 P.2d 817. However, in both Halverson and Bache, the easement recognized benefited land retained by one of the parties to the conveyance after they divided and sold a portion of the land that they had previously held in single ownership. Therefore, creation of an easement by reservation in the above manner requires that the grantor be a party to the conveyance and that he intend to reserve his own previously-held right to use the servient estate after he sells the divided parcel. That is not the case here and, therefore, Halverson and Bache do not apply.
¶49 Kellys are strangers to the conveyances who assert that they were intended to benefit from the references to the easement. We held in Medhus v. Dutter (1979), 184 Mont. 437, 444, 603 P.2d 669, 673, that “an easement cannot be created in favor of a stranger to the deed.” In the same discussion, however, we noted that where intent can be clearly shown, “we will depart from that rule to give effect to the grantor’s intent .’’Medhus, 184 Mont. at 444, 603 P.2d at 673. We then listed four factors to be considered in a determination of the grantor’s intent. They include:
[ 1] the express language of the deed; [2] testimony by grantors stating their intent; [3] the fact that the grantor received less value for the property conveyed because of the existence of an easement; and, [4] the sufficiency of the description of the location of the ease ment and whether or not the reservation names a dominant tenement.
Medhus, 184 Mont. at 444, 603 P.2d at 673 (citations omitted).
¶50 The District Court considered the four factors and found that there was no testimony from defendants’ predecessors in interest regarding their intent, nor was there any evidence to establish that the value of defendants’ property was diminished by Kellys’ alleged easement. In addition, none of the documents expressly refer to Kellys’ land as the dominant tenement. None of those findings have been challenged by Kellys.
¶51 Kellys’ sole argument in opposition to the District Court’s decision regarding the conveyances appears to be that it erred when it found that the language of the conveyances did not create an easement in their favor. The conveyances described defendants’ property and each used substantially the same language conveying the property “subject to existing easements, and in particular, sixty foot access and utility easements as depicted on the hereunto affixed plat.” It is well-established that “subject to” language in a conveyance does not create an easement. See Wild River v. Board of Trustees (1991), 248 Mont. 397, 401, 812 P.2d 344, 346; see also Ruana, 275 Mont. at 449, 913 P.2d at 1252. We have held that even where a conveyance describes an easement in detail, as in this case, the words “subject to” in their ordinary use do not create or reserve easement rights in favor of a stranger to a deed. See Ruana, 275 Mont. at 449, 913 P.2d at 1252-53. Accordingly, the language on the conveyances, even in combination with the express depiction of the easement, is not sufficient in and of itself to demonstrate the grantor’s intent to create an easement for Kellys’ benefit.
¶52 Accordingly, we conclude that the District Court did not err when it found that Kellys failed to show that the defendants’ predecessors in interest intended to grant Kellys an easement.
¶53 Kellys assert on appeal that this Court should disregard the Medhus factors for demonstrating intent in favor of general contract principles that look just to the “circumstances under which [the conveyance] was made.” Section 28-3-402, MCA. They rely on § 70-1-521, MCA, which states that “[a] present interest and the benefit of a condition or covenant respecting property may be taken by any natural person under a grant although not named a party thereto.” They contend that if we take a more general view of the circumstances at the time of the conveyances, the grantors’ intent to reserve an easement to Kellys’ benefit is obvious.
¶54 We note first that there is no dispute here about whether nonparties to a conveyance can benefit from a transfer. In fact, we clearly acknowledged in Medhus that in cases where intent can be shown, we will give effect to the grantor’s intent to benefit a nonparty to the transfer. See also Ruana, 275 Mont. at 449, 913 P.2d at 1252-53. Therefore, the District Court’s decision is consistent with § 70-1-521, MCA. The Medhus factors apply by design to situations, such as presented in this case, where a stranger to a conveyance asserts property rights pursuant to the transfer. Moreover, the purpose of the Medhus factors is to impose a consistent standard by which intent can be discerned without resorting to broad and subjective speculation. We reaffirm the applicability of the Medhus factors and affirm the District Court’s conclusion based on those factors that Kellys did not have an easement by conveyance or grant.
ISSUE 4
¶55 Did the District Court err when it concluded that Kellys were equal owners of the bridge with Wallaces and Finkle?
¶56 Kellys contend that they should have been declared sole owners of the bridge. They rely on the uncontested evidence that Kellys purchased the bridge and received a bill of sale for the bridge when they acquired the ranch in 1958, and on the fact that they essentially rebuilt the bridge and maintained control over it. They therefore contend that the District Court erred when it awarded Wallaces and Finkle an ownership interest in the bridge, even though they had not paid Kellys any consideration.
¶57 The District Court based its decision on the principle that “[a] bridge is of necessity affixed to the realty and is real estate — as much real estate as the remainder of the highway of which it is a part.” State ex rel Donlan v. Board of Commissioners (1914), 49 Mont. 517, 523, 143 P. 984, 985. It further stated that “[wjhen a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed... belongs to the owner of the land unless he chooses to require the former to remove it.” Section 70-18-101, MCA.
¶58 Kellys do not challenge the District Court’s findings of fact regarding the location of the bridge, but claim that § 70-18-101, MCA, is inapplicable because the “pilings and abutments” of the bridge rest in and on the stream bed of the Madison River which is owned by the State of Montana. This finding, however, is not inconsistent with the District Court’s premise that the bridge is attached to the property of both Wallaces and Finkle.
¶59 No persuasive argument having been made to the contrary, we affirm the District Court’s assignment of ownership of the bridge.
ISSUE 5
¶60 Should the District Court’s judgment be amended to avoid confusion about purposes for which the easement can be used in the future?
¶61 In its conclusion regarding Kellys’ easement, the District Court stated that although it “can define the scope and extent of Plaintiffs’ easement as it has done herein [pursuant to their use during the prescriptive periods], it cannot declare judgment for or against possible future uses of the easement that are purely speculative in nature.” Wallaces cross-appeal to request that this Court direct an amendment to the judgment so as to “specifically indicat[e] that subdivision, installation of utilities, logging or mining are not permitted uses within the scope of the adjudicated easement.”
¶62 Kellys initiated this case seeking a declaration of their rights in the bridge and access road. To the extent that the District Court’s decision specifically limits what uses Kellys may make of the easement based upon their use during the prescriptive period, it has resolved the issue presented to it. Were we to oblige Wallaces’ cross-appeal and specifically foreclose speculative future uses, we would be overreaching our role as a court of appeals that considers only whether the District Court has erred in its decision. Wallaces make no such contention of error, but rather, seek a more restrictive holding than the holding of the District Court. We are not in a position to provide one.
¶63 Accordingly, we deny Wallaces’ cross-appeal and affirm the District Court’s judgment.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and HUNT concur.
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] |
On November 18,1997, it was the judgment of the court that defendant’s prior deferred sentences are hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term often (10) years on each count for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. The sentences shall run concurrently with each other and concurrently with any sentences the defendant receives in Cascade County. That, however, five (5) years on each count of defendant’s sentences are hereby suspended on the terms and conditions as listed in the November 18,1997 judgment. Due to the defendant’s failure to comply with the terms and conditions of his deferred sentences while under the supervision of the Department of Probation and.Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this order, except that he shall receive credit from November 22,1996, through November 26,1996; and from September 17, 1997, through date of sentencing, November 18, 1997; for sixty-eight (68) days jail time which he has previously served. It is further ordered that restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims. The restitution shall be disbursed as set out in the judgment done in open court on the 23rd day of April, 1997.
On February 19, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
|
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 Paul Glen Ailport (hereinafter Ailport) appeals his conviction and the order of the Twentieth Judicial District Court, Lake County, denying his motion to dismiss a felony charge of driving a motor vehicle while under the influence of alcohol (felony DUI). We affirm the decision of the District Court.
¶2 The issue presented on appeal is whether the District Court erred in failing to dismiss the DUI charge against Ailport on the grounds that his 1983 DUI conviction in the State of North Dakota could not properly be used to enhance his current charge to a felony.
¶3 Ailport was arrested on December 9, 1996, and charged with DUI, fourth offense, a felony. One of the prior convictions used for the purpose of enhancing the charge against Ailport was a 1983 convic tion for DUI in Williston, North Dakota. Ailport filed a motion before the District Court to have his current DUI charge dismissed on the grounds that during the proceedings on the 1983 conviction, he had not been represented by counsel and had not executed a waiver of his right to counsel at the time he plead guilty. Ailport asserted that because his 1983 conviction had been obtained in derogation of his constitutional right to counsel, the State could not use it to increase his current DUI charge to a felony.
¶4 The District Court denied Ailport’s motion, and in a subsequent trial on the merits, a jury found Ailport guilty as charged. Ailport appealed the order of the District Court denying his motion to dismiss, as well as his resulting conviction.
¶5 The sole question before this Court is whether the District Court erred in denying Ailport’s motion to dismiss his felony DUI charge on the grounds that his 1983 North Dakota conviction could not properly be used to support the enhanced felony charge.
¶6 Whether a prior conviction can be used to enhance a criminal sentence is a matter of law. State v. LaPier, 1998 MT 174, ¶ 8, [289 Mont. 392, ¶8], 961 P.2d 1274, ¶ 8. We review a district court’s conclusions of law to determine if they are correct. State v. McKee, 1998 MT 110, ¶13, [288 Mont. 454, ¶13] 958 P.2d 700, ¶ 13. We review a district court’s findings of fact to determine if they are clearly erroneous. State v. Okland (1997), 283 Mont. 10, 14, 941 P.2d 431, 433. A court’s findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Interstate Prod. Credit Ass’n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
¶7 It is the law in Montana that once the fact of a prior conviction is established, a presumption of regularity attaches to that conviction and the burden is upon the defendant to demonstrate by direct evidence that the conviction was constitutionally infirm. Okland, 283 Mont. at 18, 941 P.2d at 436. If the defendant produces sufficient evidence to successfully rebut the presumption of regularity, the burden of proof shifts to the State to demonstrate by a preponderance of the evidence that the prior conviction was not obtained in violation of the defendant’s rights. LaPier, ¶ 11; Okland, 283 Mont. at 18, 941 P.2d at 436.
¶8 At the trial level, the State established the fact of Ailport’s 1983 North Dakota DUI conviction with a copy of a written citation from the Williston City Court indicating Ailport pled guilty to the charge of DUI. Ailport did not contest the sufficiency of this evidence to prove the existence of the prior conviction, and the conviction was therefore presumptively valid.
¶9 To rebut this presumption, Ailport submitted an affidavit in which he stated he did not recall being advised of his right to an attorney during the 1983 proceedings nor did he recall waiving his right to counsel prior to offering a plea of guilty. Ailport also submitted the affidavit of a North Dakota attorney who had regularly practiced before the Williston City Court during the same period in which Ailport’s DUI conviction occurred. The affidavit of this attorney stated with regard to the practices of the Williston City Court that “whether defendants were consistently advised of their right to an attorney at city expense is highly speculative,” and that while the attorney had no personal knowledge of the proceedings in Ailport’s case, “the advising and reading of rights was not necessarily done with the same consistency on each occasion.”
¶10 Ailport’s testimony that he did not recall being advised of his right to counsel is not, by itself, sufficient to overcome the presumption of validity which attaches to his prior conviction. State v. Big Hair, 1998 MT 61, ¶ 18, 288 Mont. 135, ¶ 18, 955 P.2d 1352, ¶ 18. However, we have previously held that testimony regarding the routine practices of the convicting court in advising defendants of their constitutional rights constitutes substantive evidence on the issue of whether a particular defendant was advised of his right to counsel on a particular occasion. State v. Olson (1997), 283 Mont. 27, 32, 938 P.2d 1321, 1325 (citing Rule 406, M.R.Evid.). We therefore conclude that the affidavits submitted by Ailport constituted direct evidence of a constitutional infirmity and were sufficient to rebut the presumption of regularity. The burden was thereafter upon the State to show that the conviction was not obtained in derogation of Ailport’s constitutional rights.
¶ 11 We therefore turn next to the question of whether the State successfully met its burden of proof in demonstrating that Ailport was adequately advised and knowingly waived his right to counsel at the 1983 DUI proceeding in North Dakota. In support of its contention that the underlying conviction was obtained upon a proper waiver of Ailport’s right to counsel, the State submitted the affidavit of the clerk of Williston City Court stating that it had been the habit of the presiding judge of the Williston City Court in 1983 to advise every de fendant of his right to an attorney and to document that a defendant had been so informed by hand-writing the term “advised” on the back of the defendant’s citation. The clerk further testified that it was the court’s practice to refuse to accept a guilty plea from a defendant unless he had been advised of and waived his constitutional right to counsel. In addition to the affidavit of the Williston City Court clerk, the State submitted a copy of the citation issued in conjunction with Ailport’s 1983 DUI conviction, on the back of which was written the word “advised,” along with the signature of the presiding judge.
¶12 Ailport contends that this evidence is insufficient to establish that he was, in fact, advised of his right to counsel or that he knowingly waived that right before pleading guilty to the DUI charge. In particular, he argues that the content of the clerk’s affidavit constitutes hearsay as to what the presiding judge meant when he indicated “advised” on the back of Ailport’s citation, that the State had the burden of documenting his waiver of right to counsel and the absence of such a waiver appearing in the record precludes a finding that his rights had been waived, and that the clerk’s testimony does not support the inference that Ailport was properly advised of his rights because the assertions made by the clerk are clearly refuted by the testimony of the North Dakota attorney.
¶13 We disagree with each of these contentions. Rule 801(c), M.R.Evid., defines hearsay 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.” The testimony of the Williston City Court clerk was that it was the practice of the presiding judge to indicate that a defendant had been advised of and waived his right to counsel by hand-writing the term “advised” on the back of the citation. This testimony does not constitute hearsay, because the clerk is not testifying as to what the presiding judge said on a particular occasion, but only as to what the customary practice of that court was at the time. Evidence of such a custom is allowable for the purpose of establishing that the convicting court performed its advisory duties on the occasion of Ailport’s conviction in conformity with its usual habit of doing so. Olson, 283 Mont. at 32, 938 P.2d at 1325; see Rule 406(b), M.R.Evid.
¶14 Likewise, Ailport’s contention that the absence of a valid waiver in the record of the 1983 proceedings precludes a finding that he knowing and intelligently waived his right to counsel is also unpersuasive. To support this argument, Ailport cites our opinion in State v. Grey (1995), 274 Mont. 206, 907 P.2d 951, in which we expressed a strong preference for recording, where feasible, the fact that a defendant has been apprised of and waived his constitutional rights and held that where the record was silent, a waiver of rights could not be presumed. Ailport’s reliance on Grey is misplaced, however, because our holding in Grey was predicated upon the fact that the conviction, which had been obtained through an improper confession, was being challenged on direct appeal, not by collateral attack in a recidivist proceeding, as it is in the case at bar.
¶15 When a prior conviction is under collateral attack and the record is silent as to whether the defendant was advised of and knowingly waived his right to representation of counsel, the State may rely upon evidence outside the record to satisfy its burden of demonstrating that the conviction was constitutionally sound. See Olson, 283 Mont. at 31-32, 938 P.2d at 1324-25. That the record itself does not contain evidence of such a waiver is not determinative of whether the prior conviction may be used to enhance Ailport’s current DUI charge to a felony. As we stated in Okland: “ ‘On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights.’ ” Okland, 283 Mont. at 18, 941 P.2d at 435-36 (quoting Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 524, 121 L.Ed.2d 391); see alsoLaPier, ¶ 18.
¶16 Finally,werejectAilport’scontentionthatthetestimonyof the attorney from North Dakota regarding the inconsistent practices of the Williston City Court in advising defendants of their constitutional rights necessarily quells any inference that could otherwise be drawn from the testimony of the Williston City Court clerk and the indication on the back of Ailport’s citation that he had been advised of his right to counsel. Where there is conflicting evidence presented at the trial level, it is within the province of the trier of fact to weigh the evidence based on the credibility of the witnesses and determine which shall prevail. State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. The District Court determined that the testimony of the clerk of the Williston City Court, in conjunction with the fact that Ailport’s citation indicated he had been advised of his rights, was ultimately more reliable on the issue of whether Ailport was, in fact, advised of and knowingly waived his constitutional right to counsel in the 1983 proceeding. Because there was sufficient, competent evi dence to support the trial court’s determination of a valid prior conviction at which defendant was advised of and waived his right to counsel, and because the lower court’s finding is not otherwise clearly erroneous, we will not disturb this finding on appeal.
¶17 Ailport also argues that the State of Montana may not use his 1983 North Dakota conviction to enhance his current DUI charge, because under North Dakota law, unless the record of conviction affirmatively demonstrates that the defendant was either represented by counsel or waived his right to counsel, the conviction is presumptively void. Because a void conviction may not be used for the purpose of enhancing punishment on a subsequent offense, the conviction may not be used to support a felony charge unless the State proves by parol or other evidence that the defendant was, in fact, either represented by counsel or expressly waived his right to counsel. State v. Orr (N.D. 1985), 375 N.W.2d 171, 180. It is Ailport’s contention that the evidence presented by the State was insufficient to prove that Ailport did in fact waive his right to counsel at the 1983 proceeding.
¶18 We agree with Ailport’s statement that the North Dakota judgment could not be used to enhance a charge in Montana if the judgment were void as a matter of North Dakota law. “The judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced.” Carr v. Bett, 1998 MT 266, ¶ 39, [291 Mont. 326], 970 P.2d 1017, (quoting Underwriters Nat. Assur. Co. v. North Carolina Life and Acc. and Health Ins. Guaranty Ass’n (1982), 455 U.S. 691, 704, 102 S.Ct. 1357, 1365, 71 L.Ed.2d 558, 570); see also U.S. Const. Art. IV, § 1; § 26-3-203, MCA; Thoring v. LaCounte (1987), 225 Mont. 77, 80, 733 P.2d 340, 342.
¶19 However, we disagree with Ailport’s contention that the requirements for using a prior conviction under North Dakota law have not been met in this instance. In addition to the testimony of the clerk of the Williston City Court that it was the customary practice of the presiding judge of that court to advise defendants of their constitutional right to counsel, the citation from Ailport’s 1983 North Dakota conviction contains an indication that Ailport was advised of those rights on that particular occasion. Additionally, it was the testimony of the Williston City Court clerk that it was the customary practice of the presiding judge to accept a plea of guilty only where a defendant had indicated that he was waiving his right to an attorney and wished to enter a guilty plea. Such evidence was sufficient, as a matter of North Dakota law, to overcome the presumption against the validity of an uncounseled conviction and shift the burden of going forward onto Ailport. See State v. Haverluk (N.D. 1988), 432 N.W.2d 871; City of Fargo v. Christiansen (N.D. 1988), 430 N.W.2d 327.
¶20 In weighing the testimony of the North Dakota attorney and the affidavit in which Ailport asserts he cannot recall being advised of his right to counsel, the District Court determined that there was not sufficient evidence to rebut the State’s evidence that Ailport’s prior conviction was constitutionally sound. We hold that this finding is supported by substantial evidence and that the District Court has not misapprehended the effect of the evidence before it. We therefore affirm the ruling of the District Court in denying Ailport’s motion to dismiss.
JUSTICES HUNT, REGNIER, GRAY and LEAPHART concur.
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On March 24,1998, the Defendant was sentenced to four (4) years to the Montana Women’s Prison.
On September 18, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present via teleconference and informed of her right to be represented by counsel. Defendant proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Michelle L. Jones for representing herself in this matter.
|
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On September 30,1997, it was ordered, adjudged and decreed that the said defendant be punished by imprisonment in the Montana Women’s Prison at Billings, Montana, for the term of five (5) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 3 days. It is further ordered that the execution of said prison sentence this day imposed on said defendant, as hereinabove set forth, be and the same hereby is suspended, and said defendant is hereby placed on probation for said period of five (5) years, and the Court retains jurisdiction of said defendant in the above-entitled cause during the entire term of said imprisonment above-mentioned, and said prison sentence is suspended upon the following conditions to be performed and kept by said defendant during this term of probation.
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
On April 10, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was represented by Margaret Gallagher, Deputy County Attorney.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended so that the defendant is sentenced to the Department of Corrections for the remainder of her sentence instead of the Women’s Correctional System. All other terms of the sentence shall remain the same.
The reason for the change is that it allows the Department of Corrections to place the defendant where they deem most appropriate.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Terri Humphrey for representing herself in this matter and Margaret Gallagher, Deputy County Attorney, for representing the State.
|
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JUSTICE REGNIER delivered
the opinion of the Court.
¶1 Donald Jarvenpaa, an employee of Glacier Electric Cooperative, Inc., was offered the option of early retirement to avoid termination. Jarvenpaa chose to retire, accepted lump sum cash retirement benefits, then filed a wrongful discharge action against Glacier in the Ninth Judicial District Court, Glacier County. In response, Glacier filed a counterclaim to recover part of the retirement benefits Jarvenpaa received. The case was tried before a jury which returned a special verdict in Glacier’s favor on both the wrongful discharge claim and the counterclaim, thus requiring Jarvenpaa to return $106,000 of his early retirement benefits, plus interest accrued. Judgment was entered on said verdict, and Jarvenpaa appeals. We affirm.
¶2 The dispositive issues on appeal are:
¶3 1. Did the District Court err when it denied Jarvenpaa’s motion for summary judgment on Glacier’s counterclaim?
¶4 2. Did the District Court err when it refused to bifurcate Glacier’s counterclaim from Jarvenpaa’s wrongful discharge claim?
¶5 3. Did the District Court err when it limited Jarvenpaa’s expert testimony and, in turn, refused Jarvenpaa’s proposed jury instructions that pertained to Glacier’s alleged personnel policy?
¶6 4. Did the District Court err when it allowed Glacier to introduce post-discharge evidence to substantiate the reasons why it discharged Jarvenpaa?
FACTUAL BACKGROUND
¶7 For approximately thirty years, Donald Jarvenpaa was employed with Glacier Electric Cooperative, Inc., in a variety of positions, in- eluding manager of operations. However, on September 29, 1992, Glacier informed Jarvenpaa that due to alleged performance problems it would terminate him effective December 31,1992. Instead of firing Jarvenpaa, Glacier offered him an early retirement option. Glacier offered the early retirement option to four other employees; however, only Jarvenpaa had to retire or be fired. The total lump sum retirement package presented and accepted by Jarvenpaa was approximately $318,116. This sum included approximately $106,000 of early retirement benefits.
¶8 After Jarvenpaa accepted the early retirement benefits, he filed a wrongful discharge action against Glacier on November 3, 1993, in the Ninth Judicial District Court, Glacier County. Pursuant to § 39-2-904, MCA, Jarvenpaa alleged that Glacier terminated him without good cause and in violation of its own written personnel policy. He also alleged that Glacier’s actions were malicious and in retaliation for reporting Glacier’s violation of environmental standards, pursuant to § 39-2-905(2), MCA, which allows for punitive damages.
¶9 During the initial proceedings, Glacier filed a motion for summary judgment contending that Jarvenpaa should be precluded from pursuing a wrongful discharge claim since he agreed to retire. The District Court granted Glacier summary judgment and Jarvenpaa appealed. On July 11, 1995, we reversed the District Court’s order granting summary judgment. This Court determined that Jarvenpaa had been constructively discharged since he did not voluntarily retire; therefore, he had a right to pursue his wrongful discharge action. See Jarvenpaa v. Glacier Elec. Coop., Inc. (Jarvenpaa I) (1995), 271 Mont. 477, 898 P.2d 690.
¶ 10 The issues now before us result from the District Court’s rulings upon remand of Jarvenpaa’s wrongful discharge action. After remand, the District Court allowed Glacier to file a counterclaim to collect the additional $106,000 that Jarvenpaa received for his early retirement, plus interest. Jarvenpaa moved for summary judgment in his favor on the counterclaim, but the District Court denied his motion. When Jarvenpaa requested that the District Court bifurcate Glacier’s counterclaim from his wrongful discharge action, the District Court allowed the counterclaim to proceed and, in turn, overruled attempts to exclude evidence of his early retirement election. In addition, the District Court admitted certain post-termination evidence which Glacier offered to substantiate its reasons for terminating Jarvenpaa. Finally, when Jarvenpaa attempted to introduce ex pert testimony to establish that Glacier violated its own written personnel policy, the District Court partially excluded such testimony. The District Court also refused Jarvenpaa’s proposed jury instructions relating to the existence of a personnel policy.
¶11 OnNovember8,1996, thejury returned a special verdict for Glacier. The jury decided that Jarvenpaa was not wrongfully discharged and awarded Glacier $130,069.26 on its counterclaim. Accordingly, the District Court entered judgment against Jarvenpaa on November 14, 1996. Jarvenpaa now appeals the District Court’s rulings.
STANDARD OF REVIEW
¶ 12 Our standard of review of a district court’s denial of a motion for summary judgment is de novo. See Stutzman v. Safeco Ins. Co. (1997), 284 Mont. 372, 376, 945 P.2d 32, 34. Our standard of review of a district court’s discretionary rulings is abuse of discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that “[t]he standard of abuse of discretion is applied to discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” In Malta Public School District A and 14 v. Montana Seventeenth Judicial District Court (1997), 283 Mont. 46, 50, 938 P.2d 1335, 1338, we stated that under Rule 42(b), M.R.Civ.P., the decision as to whether to bifurcate a trial is a matter left to the “broad discretion” of the district court. In State v. Romero (1996), 279 Mont. 58, 73, 926 P.2d 717,726-27, and many cases thereafter, we stated that we review a district court’s ruling on the admission of evidence for an abuse of discretion. In Cechovic v. Hardin & Associates (1995), 273 Mont. 104, 116, 902 P.2d 520, 527, and cases thereafter, we applied the abuse of discretion standard to a trial court’s selection of jury instructions.
¶ 13 The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. See C. Haydon Ltd. v. Montana Mining Properties, Inc. (1997), 286 Mont. 138, 146, 951 P.2d 46, 51. We will not substitute our judgment for the district court’s unless it clearly abused its discretion. See C. Haydon Ltd., 286 Mont. at 146, 951 P.2d at 51.
ISSUE 1
¶14 Did the District Court err when it denied Jarvenpaa’s motion for summary judgment on Glacier’s counterclaim?
¶15 Glacier contends that since Jarvenpaa maintains that he was discharged, he did not effectively retire and, therefore, should not be entitled to keep the early retirement benefits he received. Glacier argues that Jarvenpaa cannot elect to both retire and be fired. Applying a contract theory, Glacier further argues that since Jarvenpaa failed to fully perform his retirement, he breached his retirement agreement and should be compelled to pay back the early retirement benefits he received from this agreement.
¶16 Jarvenpaa argues that he is entitled to summary judgment on Glacier’s counterclaim because his wrongful discharge action should not affect his retirement agreement. He contends that his retirement was complete the day he voluntarily stopped working for Glacier. Additionally, he argues that since Glacier did not bargain for a release of potential claims in the retirement agreement, which Glacier itself drafted, Glacier should not be granted the net effect of a release by being allowed to pursue its counterclaim.
¶ 17 To address these arguments, we must first return to our discussion in Jarvenpaa I. We determined in Jarvenpaa I that Jarvenpaa was constructively discharged, despite his agreement to retire. Now, we are asked whether, by prosecuting his wrongful discharge claim, Jarvenpaa must return a portion of his retirement benefits which represents the early retirement part of his lump sum retirement package.
¶ 18 In the case sub judice, it is clear that Jarvenpaa’s retirement agreement was made as part of an ultimatum to either retire or be fired. Glacier caused Jarvenpaa to elect one or the other. Jarvenpaa could not elect both; hence, he could not elect to receive the benefits of both. He could either take an additional $106,000 in early retirement benefits, or he would be terminated. Jarvenpaa took the money, then claimed he did not retire but instead was constructively discharged. We agreed in Jarvenpaa I that the forced retirement was, in fact, a constructive discharge. However, Jarvenpaa cannot at the same time both retire and be discharged. We hold that while Jarvenpaa had the right to pursue the constructive discharge as wrongful, he cannot now keep the early retirement benefits after a jury determined that his discharge was not wrongful.
¶19 Jarvenpaa analogizes his case to cases involving employees’ retention of severance benefits in actions brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621-623 (1996), and similar federal statutes. See, e.g., Raczak v. Ameritech Corp. (6th Cir. 1997), 103 F.3d 1257, cert. denied (1998), 118 S. Ct. 1033, 140 L. Ed. 2d 101; Long v. Sears, Roebuck & Co. (3d Cir. 1997), 105 F.3d 1529, cert. denied (1998), 118 S. Ct. 1033, 140 L. Ed. 2d 100; Oberg v. Allied Van Lines, Inc. (7th Cir. 1993), 11 F.3d 679, cert. denied (1994), 511 U.S. 1108, 114 S. Ct. 2104, 128 L. Ed. 2d 665; Forbus v. Sears, Roebuck & Co. (11th Cir. 1992), 958 F.2d 1036, cert. denied (1992), 506 U.S. 955, 113 S. Ct. 412, 121 L. Ed. 2d 336. In these cases, each employee who elected to take a severance package signed a release of potential claims, but then filed a discharge action and was allowed to retain the severance packages while pursuing the litigation. Each employer unsuccessfully argued that the employee ratified the release by retaining the severance package and, therefore, should be forced to tender-back the severance package as a condition precedent to bringing the action. These cases, however, do not address Jarvenpaa’s argument that he should be permitted to retain his early retirement benefits even after he was unsuccessful in his wrongfiil discharge case. We conclude that it is an entirely different concept to require a tender-back of paid benefits before an employee is allowed to file suit.
¶20 In Jarvenpaa I, we stated that “the amount of the retirement benefit which he received is relevant to the amount of damages due to Jarvenpaa if he succeeds in this lawsuit.” Jarvenpaa I, 271 Mont. at 483, 898 P.2d at 694. Thus, we conclude that there are only two circumstances under which Jarvenpaa could keep his early retirement benefits: (1) if he, in fact, retired, which he did not do in this instance; or (2) if he was wrongfully discharged, then he could have applied his early retirement benefits as an offset against any wrongful discharge damages he was awarded. Neither of these scenarios occurred.
¶21 Based on this conclusion, we hold that the District Court did not err when it denied Jarvenpaa’s motion for summary judgment on the counterclaim.
ISSUE 2
¶22 Did the District Court err when it refused to bifurcate Glacier’s counterclaim from Jarvenpaa’s wrongful discharge claim?
¶23 Jarvenpaa argues that even if the District Court correctly allowed Glacier’s counterclaim, it should have bifurcated the counterclaim from his wrongful discharge action to avoid prejudice against him. According to Jarvenpaa, Glacier’s counterclaim unnecessarily invited evidence of Jarvenpaa’s election to retire and the retirement benefits he received. Jarvenpaa argues that not only did such evidence have no probative value to the issue of whether he was wrongfully discharged, it prejudicially persuaded the jury to find that his discharge was fair, and not wrongful. Jarvenpaa further contends that the parties’ separate claims corresponded to separate events and, therefore, should not have been intermingled.
¶24 Despite Jarvenpaa’s arguments, the District Court did not bifurcate the two claims and it admitted evidence of Jarvenpaa’s retirement election. In its order, the District Court stated that evidence of Jarvenpaa’s retirement had sufficient probative value in Jarvenpaa’s wrongful discharge claim and, therefore, was not prejudicial. Hence, there was no reason to bifurcate Glacier’s counterclaim from Jarvenpaa’s wrongful discharge action.
¶25 We agree. Evidence of Jarvenpaa’s retirement election was helpful to the jury to make a well-informed decision of whether Jarvenpaa was wrongfully discharged. It was important that the jury consider all the events relating to Jarvenpaa’s discharge. Contrary to Jarvenpaa’s contention that his discharge was a separate event from his retirement election, we conclude that they were part of a single event.
¶26 Furthermore, because Jarvenpaa alleged that, pursuant to § 39-2-905(2), MCA, Glacier acted with malice after he reported Glacier’s violation of environmental standards, information about Jarvenpaa’s retirement option was relevant. Information about the terms of Jarvenpaa’s discharge could assist the jury to determine whether Glacier acted with malice when it discharged him.
¶27 Thus, we hold that the terms of Jarvenpaa’s discharge, to retire or be fired, are relevant to Jarvenpaa’s wrongful discharge action. Therefore, the District Court did not abuse its discretion when it admitted such evidence and when it refused to bifurcate Glacier’s counterclaim from Jarvenpaa’s wrongful discharge action.
ISSUE 3
¶28 Did the District Court err when it limited Jarvenpaa’s expert testimony and, in turn, refused Jarvenpaa’s proposed jury instructions that pertained to Glacier’s alleged personnel policy?
¶29 One of Jarvenpaa’s goals at trial was to establish that Glacier had a written personnel policy. Once established, Jarvenpaa could then argue that Glacier violated said policy and, thereby, wrongfully discharged him pursuant to § 39-2-904(3), MCA. Jarvenpaa contends that Glacier’s personnel policy comprised a selection of written materials it adopted from a management consultant whom Glacier hired. Jarvenpaa cites Kearney v. KXLF Communications, Inc. (1994), 263 Mont. 407, 869 P.2d 772, for support. In Kearney, we reversed a court’s directed verdict for an employer in a wrongful discharge case and con- eluded that an employer’s policy to conduct annual performance evaluations may be interpolated from several writings, including preprinted evaluation forms and a memo from a supervisor. See Kearney, 263 Mont. at 416-18, 869 P.2d at 777-78. Jarvenpaa argues that the materials Glacier received from its management consultant, which included supervisory assessment forms and a personnel development plan used to help managers and employees improve their performance, along with a letter written by Glacier’s general manager that stated Glacier was getting the personnel development plan underway, could reasonably establish that Glacier had a personnel policy.
¶30 Jarvenpaa further maintains that the District Court should have allowed his expert witness, who was a professor of management and worked as a management consultant, to testify that these materials constituted a personnel policy within common management standards and that Glacier violated the policy. Jarvenpaa points out that the District Court allowed Glacier’s management consultant and general manager to testify on this issue so it should have allowed his witness to offer testimony on the same issue.
¶31 In addition, Jarvenpaa proposed jury instructions to support his argument. One of Jarvenpaa’s instructions stated that a personnel policy could include policies adopted by the employer found in other writings, including memos, forms, and other documents. Another instruction suggested that Glacier’s personnel policy required Glacier to apply progressive discipline measures to discharge Jarvenpaa. He contends that Glacier failed to do this.
¶32 The District Court limited the testimony of Jarvenpaa’s expert witness and refused Jarvenpaa’s proposed jury instructions. It is obvious that the District Court was not convinced that Glacier had actually adopted a written personnel policy. Concerned that it was the jury’s proper role to decide whether Glacier had a written personnel policy, the District Court did not allow Jarvenpaa’s expert witness to testify to its existence. Instead, the District Court limited Jarvenpaa’s expert testimony to identify common management standards and discuss whether such standards were evident in the materials supplied by Glacier’s management consultant. The District Court also allowed Jarvenpaa’s expert witness to answer whether Glacier violated a personnel policy, assuming the materials established such a policy. The District Court concluded that there was a lack of foundation to allow Jarvenpaa’s expert witness to testify to anything further. However, the District Court did instruct the jury that a wrongful discharge occurs when an employer violates the express provisions of its own written personnel policy.
¶33 Once again, our standard of review is whether the District Court abused its discretion. We cannot say that the District Court’s ruling on this evidentiary issue was an abuse of discretion so as to cause reversible error. The District Court concluded that a proper foundation had not been established to allow Jarvenpaa’s expert witness to testify on the issue of whether Glacier adopted a personnel policy. Although Glacier’s management consultant and general manager were allowed to testify on this issue, their stature as agents of the defendant was certainly different than Jarvenpaa’s expert. Glacier’s agents had first-hand knowledge on matters relating to this issue and were properly allowed to testify. Furthermore, Jarvenpaa had adequate opportunity to cross-examine Glacier’s witnesses.
¶34 Also, we determine that Kearney does not support Jarvenpaa’s argument. In Kearney, we stated that it was the proper role of the jury, not a judge, to determine whether the employer adopted a personnel policy. See Kearney, 263 Mont. at 418, 869 P.2d at 778. Although an expert did testify in Kearney, we were not reviewing the propriety of such testimony. We did not consider the role of an expert witness, nor did we say that materials used by an employer constitute a personnel policy as a matter of law.
¶35 Jarvenpaa cites other cases as support for his argument. See, e.g., Mahan v. Farmers Union Central Exchange (1989), 235 Mont. 410, 420, 768 P.2d 850, 857 (opinion testimony from an expert is permissible provided that foundation has been laid and the expert’s specialized knowledge will assist the jury); Flanigan v. Prudential Federal Savings & Loan Ass’n (1986), 221 Mont. 419, 430, 720 P.2d 257, 263-64 (in permitting an expert witness to interpret employment policies, the trial court acted within its discretion); Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 502, 693 P.2d 487, 494 (testimony of employee’s expert on personnel management is properly admitted in action arising out of employee’s termination when the jury’s experience does not extend to the employer’s disciplinary guidelines, much less the ability to evaluate propriety of such guidelines, and the expert’s perspective assists the jury in understanding the evidence). Again, these cases are not on point. Each of these cases involved situations in which an expert witness testified on an issue of whether a personnel policy was violated, not whether a personnel pol icy existed. In Crenshaw, and again in Flanigan, we stated that expert testimony should be allowed when it is “based on professional expertise and experience which the individual jury members were unlikely to possess.” Flanigan, 221 Mont, at 430, 720 P.2d at 263 (quoting Crenshaw, 213 Mont. at 502, 693 P.2d at 494). Additionally, in Mahan, 235 Mont. at 420, 768 P.2d at 857, we stated that opinion testimony from expert witnesses is admissible provided that the proper foundation testimony is in the record. In Jarvenpaa’s case, the precise issue was whether a written personnel policy was even in existence.
¶36 For these reasons, we hold that the District Court did not abuse its discretion when it limited Jarvenpaa’s expert testimony and refused Jarvenpaa’s proposed jury instructions. Given the latitude which the District Court gave Jarvenpaa in this area, and the instructions given to the jury, we conclude that Jarvenpaa was allowed to sufficiently present his theory on this issue and no reversible error occurred.
ISSUE 4
¶37 Did the District Court err when it allowed Glacier to introduce certain post-discharge evidence to substantiate the reasons why it discharged Jarvenpaa?
¶38 During the trial proceedings, Jarvenpaa argued, as he does now, that evidence that pertained to reasons why he was discharged should have been limited to what Glacier wrote in a November 2, 1992, letter to him, and to what occurred before Glacier wrote the letter. Jarvenpaa repeatedly objected to evidence of events that occurred after the letter, including testimony by Glacier’s witnesses that morale among employees improved after Jarvenpaa retired, and that managers who followed in Jarvenpaa’s position handled the workload better than Jarvenpaa. Jarvenpaa argues that such after-acquired evidence should not have been allowed in his wrongful discharge action.
¶39 In its discretion, however, the District Court admitted the testimony of Glacier’s witnesses. The District Court believed that the testimony was relevant, in some circumstances, to substantiate the reasons Glacier gave for Jarvenpaa’s discharge in its November 2,1992, letter. Morale was specifically addressed in the letter, plus Jarvenpaa introduced post-November 2,1992, evidence in hopes of establishing that morale was still bad, thus opening the door on the issue. The other evidence admitted directly related to the matters addressed in the November 2,1992, letter.
¶40 We conclude the District Court did not abuse its discretion in admitting such testimony. In its letter, Glacier indicated that Jarvenpaa detrimentally affected the morale and the operations of the workplace, and that he had problems exercising his duties as a supervisor. The District Court determined that Glacier’s proffered evidence was relevant and admissible because it tended to prove the truth of the allegations Glacier made in its letter and whether Jarvenpaa was terminated for good cause. Furthermore, Jarvenpaa contended the pre-termination morale was attributable to other causes. Therefore, post-termination morale was probative of both Glacier’s cause for termination and Jarvenpaa’s denial.
¶41 It is true that an employer should be limited to introducing only those reasons itemized in a discharge letter as the reasons justifying termination. See, e.g., Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 23, 890 P.2d 382, 385 (any collateral reasons for the discharge suggested by the evidence, other than the sole reason stated in a discharge letter, is irrelevant and, therefore, inadmissible); Flanigan, 221 Mont. at 431, 720 P.2d at 264 (after-acquired evidence that is not known to the employer at the time of an employee termination is not admissible); Swanson v. St. John’s Lutheran Hospital (1979), 182 Mont. 414, 422, 597 P.2d 702, 706 (evidence outside the scope of a letter which states the reasons for an employee discharge is of questionable value and irrelevant). Unlike these cases, however, Glacier did not offer evidence to present collateral reasons for Jarvenpaa’s discharge. Instead, it offered the evidence to substantiate the reasons it had already given in its November 2,1992, letter.
¶42 The District Court has broad discretion to determine whether evidence is relevant and admissible. Absent a showing of abuse of discretion, we will not overturn the District Court’s determination. Although we conclude that the District Court did not abuse its discretion in admitting such evidence, we further note that the jury was properly instructed by the District Court that it was to consider only reasons asserted by Glacier at the time of discharge.
¶43 We affirm.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT, LEAPHART, GRAY and DISTRICT COURT JUDGE SALVAGNI, sitting for JUSTICE NELSON, concur.
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] |
On May 6,1998, the Defendant was sentenced to five (5) years to the Department of Corrections. The Defendant was given credit for 182 days already served.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank Perry Metcalf for representing himself in this matter.
|
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On August 27,1997, it was ordered, adjudged and decreed that for the offense of Criminal Possession With Intent to Sell (Tylox and Demerol), a felony, the defendant is sentenced to the Women’s Correctional Center for a period of ten (10) years. The Court recommends the defendant be placed in a pre-release center prior to her release from prison. The defendant is granted eighteen (18) days’ credit (August 10 - 27,1997).
On April 10, 1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 10th day of April, 1998.
DATED this 16th day of April, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Member, Hon. Richard Phillips, Member, Hon. Jeff Langton and Alternate Member, Hon. G. Todd Baugh
The Sentence Review Board wishes to thank Theresa M. Brian for representing herself in this matter.
|
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] |
On April 23, 1998, the Defendant was sentenced to thirty (30) years in the Montana State Prison for Count I; for Count II: the Defendant was sentenced to the Cascade County Detention Center for six (6) months; and for Count III: the Defendant was sentenced to the Cascade County Detention Center for six (6) months. The sentences are to run concurrently with one another. Credit is given for 357 days already served.
On August 13,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Rochelle Wilson. The state was represented by Brant Light.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be amended to thirty (30) years in the Montana State Prison, with no possibility of parole or participation in any supervised release programs for the first fifteen (15) years of the sentence.
The sentence given was clearly inadequate to protect society and to punish this individual for what he has done. The Defendant misrepresented the facts before the Sentence Review Board, and, based on his past history and the matters presented to this Board, the Board believes he is unlikely to be rehabilitated.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
The Sentence Review Board wishes to thank attorney Rochelle Wilson for representing Douglas Boese in this matter.
|
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