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mont/115389.json

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+"{\"id\": \"115389\", \"name\": \"STATE OF MONTANA, Plaintiff, vs. MARY E. ROGERS, Defendant\", \"name_abbreviation\": \"State v. Rogers\", \"decision_date\": \"2000-10-27\", \"docket_number\": \"No. DC-99-184\", \"first_page\": \"72\", \"last_page\": \"72\", \"citations\": \"304 Mont. 72\", \"volume\": \"304\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T23:04:42.221651+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hon. Russell C. Fagg, District Court Judge\", \"parties\": \"STATE OF MONTANA, Plaintiff, vs. MARY E. ROGERS, Defendant.\", \"head_matter\": \"STATE OF MONTANA, Plaintiff, vs. MARY E. ROGERS, Defendant.\\nNo. DC-99-184\\nAmended Judgment and Commitment\\nDATED this 27th day of October, 2000.\", \"word_count\": \"165\", \"char_count\": \"1062\", \"text\": \"On March 2,2000, the Defendant was sentenced to ten (10) years in \\u2022 the Montana Women's Prison, with five (5) years suspended.\\nOn September 22, 2000, the Defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.\\nThe Defendant was present and was represented by Everett Riggs. The state was not represented.\\nThe Defendant having been duly informed of the amended judgment and commitment, and having waived her right to appear before the undersigned for this pronouncement of sentence, whereupon,\\nIT IS ORDERED, ADJUDGED AND DECREED that the sentence shall be affirmed, with the added condition of the probationary portion of the sentence that the defendant enroll in, and successfully complete, a regimen of Financial Management Counseling, to be approved by her Probation Officer, at the defendant's expense.\\nHon. Russell C. Fagg, District Court Judge\"}"

mont/12435626.json

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+"{\"id\": \"12435626\", \"name\": \"KENT WOOD and TINA WOOD, Plaintiffs and Appellees, v. IRENE ANDERSON, DARLENE STOVER, SANDRA MELNRICK, GINGER HEGEMAN, DIANE MARICH, and IRENE ANDERSON and DARLENE STOVER, as Personal Representatives of the Estate of Stella C. Sellmer and the ESTATE OF STELLA C. SELLMER, Defendants and Appellants\", \"name_abbreviation\": \"Wood v. Anderson\", \"decision_date\": \"2017-07-25\", \"docket_number\": \"No. DA 16-0463\", \"first_page\": \"166\", \"last_page\": \"178\", \"citations\": \"388 Mont. 166\", \"volume\": \"388\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:41:12.659312+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES SANDEFUR, BAKER, McKINNON and SHEA concur.\", \"parties\": \"KENT WOOD and TINA WOOD, Plaintiffs and Appellees, v. IRENE ANDERSON, DARLENE STOVER, SANDRA MELNRICK, GINGER HEGEMAN, DIANE MARICH, and IRENE ANDERSON and DARLENE STOVER, as Personal Representatives of the Estate of Stella C. Sellmer and the ESTATE OF STELLA C. SELLMER, Defendants and Appellants.\", \"head_matter\": \"KENT WOOD and TINA WOOD, Plaintiffs and Appellees, v. IRENE ANDERSON, DARLENE STOVER, SANDRA MELNRICK, GINGER HEGEMAN, DIANE MARICH, and IRENE ANDERSON and DARLENE STOVER, as Personal Representatives of the Estate of Stella C. Sellmer and the ESTATE OF STELLA C. SELLMER, Defendants and Appellants.\\nNo. DA 16-0463.\\nSubmitted on Briefs May 3, 2017.\\nDecided July 25, 2017.\\n2017 MT 180.\\n399 P.3d 304.\\n388 Mont. 166.\\nFor Appellants: Linda Osorio St. Peter, Michael O\\u2019Brien, St. Peter Law Office, PC, Missoula.\\nFor Appellees: S. Charles Sprinkle, Sprinkle Law Firm, PC, Libby.\", \"word_count\": \"4786\", \"char_count\": \"29139\", \"text\": \"JUSTICE WHEAT\\ndelivered the Opinion of the Court.\\n\\u00b61 Irene Anderson, Darlene Stover, Sandra Melnrick, Ginger Hegeman, Diane Marich, the personal representatives of the Estate of Stella C. Sellmer, and the Estate of Stella C. Sellmer (collectively Defendants) appeal from the order of the Twentieth Judicial District Court, Sanders County, entering judgment in favor of Kent and Tina Wood (the Woods). We affirm in part, reverse in part, and remand for entry of a revised judgment.\\n\\u00b62 We restate the issues on appeal as follows:\\nIssue One: Did the District Court err in concluding that the Woods had an enforceable contract to purchase real property ?\\nIssue Two: Did the District Court err in entering a judgment against Anderson, Stover, and Hegeman, jointly and severally ?\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b63 Bill and Stella Sellmer (the Sellmers) owned a ninety-six-acre tract of real property in Sanders County, Montana. They had five daughters: Irene Anderson (Anderson), Darlene Stover (Stover), Sandra Melnrick (Melnrick), Ginger Hegeman (Hegeman), and Diane Marich (Marich). In 2006, the Sellmers, the grandparents of Kent Wood, entered into an oral agreement with the Woods to sell five acres of their property to the Woods for $30,000 plus surveying costs. On August 16, 2006, the Woods commissioned a surveyor and expended $3,474.32 to complete the survey project, paying the last invoice for the project on September 1, 2010. On September 11, 2008, the Woods paid the Sellmers $15,000 by cashier's check as partial payment for the five-acre tract.\\n\\u00b64 On March 16,2009, Bill Sellmer wrote a letter to his tax preparer, seeking advice on how to declare the partial payment for his property on his tax return. The letter also stated that Bill Sellmer deposited the $15,000 check in September 2008. Before the Woods completed the land survey, Bill Sellmer requested that his attorney, Naomi Leisz (Leisz), prepare the needed real estate transfer documents. She prepared a Land Purchase Agreement that was never signed, likely because the survey was not completed until September 2010. On October 22, 2010, Bill Sellmer died and his property passed intestate to his wife Stella, who then died on January 9, 2011.\\n\\u00b65 On March 7, 2011, Leisz, representing Anderson and Stover as personal representatives of Stella Sellmer's estate, sent a letter to the Woods, asking for any additional documents pertaining to the sale of the five-acre property. Beginning on May 22, 2011, Anderson and Stover published a notice to creditors in the local newspaper for three consecutive weeks. Following the receipt of the letter from Leisz, the Woods discussed the matter with Kent's mother, Ginger Hegeman (Hegeman). Hegeman assured them that the property would not be transferred out of the estate until any interest they had in the property had been addressed. An email dated January 19, 2012, confirmed the Woods' account of Hegeman's representation. On April 24, 2012, the personal representatives Anderson and Stover filed a statement to close the estate and executed a deed of distribution, thus terminating their appointment as personal representatives and distributing the right, title, and interest of the ninety-six-acre property to distributees Anderson, Stover, Hegeman, Melnrick, and Marich.\\n\\u00b66 On January 24, 2014, the Defendants entered into a contract to sell the entire 96 acres from the estate for $299,000, inclusive of the five-acre tract, to another buyer. The Woods became aware of the sale of the property and, on March 27, 2014, filed suit against the Defendants for breach of contract, negligent or intentional infliction of emotional distress, fraud, and unjust enrichment. On April 13, 2015, the District Court denied the Defendants' motion for summary judgment and, on July 25, 2016, entered judgment in favor of the Woods, finding that Defendants Anderson, Stover and Hegeman were wrongfully enriched and in breach of an enforceable contract. The court issued judgment against Anderson, Stover and Hegeman, jointly and severally, for compensatory damages, pre-judgment interest, and statutory costs. The Defendants filed a timely notice of appeal with this Court. Additional facts will be provided as necessary to address the issues raised.\\nSTANDARD OF REVIEW\\n\\u00b67 The construction and interpretation of a contract is a question of law that this Court reviews for correctness. Johnston v. Centennial Log Homes & Furnishings, Inc., 2013 MT 179, \\u00b6 25, 370 Mont. 529, 305 P.3d 781. We review de novo a district court's interpretation and application of a statute. Dick Irvin, Inc. v. State, 2013 MT 272, \\u00b6 18, 372 Mont. 58, 310 P.3d 524. In reviewing a district court's conclusions of law, our standard of review is plenary and we must determine whether the court's interpretation of the law is correct. Sartori v. S & S Trucking, Inc., 2006 MT 164, \\u00b6 11, 332 Mont. 503, 139 P.3d 806.\\nDISCUSSION\\n\\u00b68 Issue One: Did the District Court err in concluding that the Woods had an enforceable contract to purchase real property ?\\n\\u00b69 The Defendants first appeal from the District Court's conclusion that the Woods had an enforceable contract to purchase the five-acre tract from the Sellmers. The court concluded that the Woods had an enforceable contract because they partially and substantially performed their part of the oral contract and were willing and able to complete the transaction. We affirm.\\n\\u00b610 Under \\u00a7 28-2-903(l)(d), 70-20-101, and 30-11-111, MCA, an agreement for the sale of real property is invalid under the statute of frauds unless the agreement, or some note or memorandum of the agreement, is in writing and subscribed by the party to be charged. We have held that the note or memorandum may consist of several writings, and that it need not be in any particular form, or contain the entire contract. As long as the writing or writings include all the material terms, even if such terms are stated generally, the contract is valid. Olsen v. Johnston, 2013 MT 25, \\u00b6 20, 368 Mont. 347, 301 P.3d 791 (citing Johnson v. Ogle, 120 Mont. 176, 181-82, 181 P.2d 789, 791 (1947), Hughes v. Melby, 135 Mont. 415, 421, 340 P.2d 511, 515 (1958); Kluver v. PPL Mont., LLC., 2012 MT 321, \\u00b6 38, 368 Mont. 101, 293 P.3d 817; Dineen v. Sullivan, 123 Mont. 195, 199, 213 P.2d 241, 243 (1949)). \\\"The material terms of a contract for the sale of real property will include the parties, the subject matter, a reasonably certain description of the property affected, the purchase price or the criteria for determining the purchase price, and some indication of mutual assent.\\\" Olsen, \\u00b6 21.\\n\\u00b611 We review a district court's findings of fact for clear error. Roland v. Davis, 2013 MT 148, \\u00b6 21, 370 Mont. 327, 302 P.3d 91. Clear error exists if substantial, credible evidence fails to support the findings of fact, if the district court misapprehended the evidence's effect, or if we have a definite and firm conviction that the district court made a mistake. Roland, \\u00b6 21. In this case, the District Court identified several writings which established the existence of a valid, written contract between the Woods and the Sellmers. The writings here include: 1) the unsigned Land Purchase Agreement; 2) the land survey describing the property to be sold, paid for by the Woods; 3) the $15,000 check issued by Tina Wood to Bill Sellmer, who then endorsed and deposited the check; and 4) the letter from Bill Sellmer to his tax preparer referencing the $15,000 he received as partial payment for the \\\"piece of ground\\\" he sold. Each of these writings contain one or more terms referencing the parties involved and the sale, description, and purchase price of the property. Additionally, because Bill Sellmer deposited the check, told his accountant that he had sold a portion of his property, allowed for the survey to be completed on his property, and because the survey proposal, cashier's check, and tax preparer letter were each signed by either Bill Sellmer or the Woods, there exists sufficient indicia of mutual assent in this case to find the existence of a written, enforceable contract.\\n\\u00b612 Additionally, even in the absence of a written contract, we have \\\"long recognized the doctrine of part performance as an exception to the Statute of Frauds.\\\" Morton v. Lanier, 2002 MT 214, \\u00b6 20, 311 Mont. 301, 55 P.3d 380; see also \\u00a7 70-20-102, 30-11-111, MCA. In Epletveit v. Solberg, 119 Mont. 45, 169 P.2d 722 (1946), we explained this Court's view of the exception:\\nWhere one party, to an oral contract has, in reliance thereon, so far performed his part of the agreement that it would be perpetrating a fraud upon him to allow the other party to repudiate the contract and to set up the statute of frauds in justification thereof, equity will regard the case as being removed from the operation of the statute and will enforce the contract by decreeing specific performance of it, or by granting other appropriate relief.\\nEpletveit, 119 Mont. at 57, 169 P.2d at 729. In the present case, the District Court concluded that Woods sufficiently performed on the contract to their detriment and in reliance on the contract. Tina Wood paid the Sellmers $15,000, which Bill Sellmer acknowledged in his letter to his tax preparer as partial payment for a piece of land he had sold. The Woods also expended $3,474.32 to complete a land survey on the Sellmers' property. It is beyond real dispute that the Woods did these things to their detriment and in reliance on the contract. To hold otherwise would be to allow the Defendants to perpetrate a fraud on the Woods. Since the property was subsequently sold to a bona fide purchaser, the court properly granted the Woods other appropriate, equitable relief. As such, we conclude that the District Court properly determined that the Woods had an enforceable contract to purchase the five-acre tract and suffered compensatory damages in the amount of $18,474.32.\\n\\u00b613 Issue Two: Did the District Court err in entering a judgment against Anderson, Stover, and Hegeman, jointly and severally ?\\n\\u00b614 The Defendants also appeal the District Court's judgment in favor of the Woods and against Defendants Anderson, Stover, and Hegeman, jointly and severally. The Defendants contend that the court erred in entering judgment against them because of the period of limitations contained in \\u00a7 72-3-803, -1011, and -1013, MCA.\\n\\u00b615 Montana's probate code contains limitations periods, also known as nonclaim provisions, which govern the presentation of claims against a decedent's estate, an estate's personal representatives, and any subsequent distributees. Sections 72-3-803 (limitations on creditor's claims), 72-3-1011 (limitations on actions against personal representative), 72-3-1013, MCA (limitations on actions against distributees).\\n\\u00b616 First, the District Court found that the Woods' claim was not time barred by \\u00a7 72-3-803, MCA. We agree, but also conclude that the court's determination does not end the inquiry in this case. Section 72-3-803, MCA, requires creditors to file claims against an estate within a specified period of time or be forever barred from asserting their claim. Under \\u00a7 72-3-801, MCA, a personal representative is required to give notice, either in writing or by publication, to the creditors of an estate. Unless a personal representative has already given written notice by mail or another form of delivery, the personal representative must publish a notice to creditors for three consecutive weeks \\\"in a newspaper of general circulation in the county announcing the personal representative's appointment and address and notifying creditors of the estate to present their claims within 4 months after the date of the first publication of the notice or be forever barred.\\\" Section 72-3-801(1), MCA. Section 72-3-803, MCA, further provides that all claims arising at or after the death of a decedent, including those founded on contracts not based on a contract with a personal representative, \\\"are barred against the estate, the personal representative, and the heirs and devisees of the decedent\\\" unless the claim is presented \\\"within the later of 4 months after it arises\\\" or \\\"within 1 year after the decedent's death.\\\" Section 72-3-803(l)(a), 2(a)-(b), MCA.\\n\\u00b617 In Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340 (1988), the United States Supreme Court held that an unsecured creditor's claim is an intangible interest in property protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Pope, 485 U.S. at 485, 108 S. Ct. at 1345. As such, the Court held that notice by publication is insufficient to protect a creditor's property interest where the identity of a creditor is known or \\\"reasonably ascertainable\\\": instead, a creditor must be given \\\"notice by mail or other means as certain to ensure actual notice.\\\" Pope, 485 U.S. at 491, 108 S. Ct. at 1348 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S. Ct. 2706, 2712 (1983)).\\n\\u00b618 Further, in Boyer v. Sparboe, 263 Mont. 289, 867 P.2d 1116 (1994), we held that an estate cannot use \\u00a7 72-3-803, MCA, to a bar creditor's claim where the estate: 1) has actual notice of a claim; and 2) through a representation, gives assurances to the claimant that no creditor's claim action is necessary to protect the claim. Boyer, 263 Mont. at 294, 867 P.2d at 1119-20. In Boyer, a property owner contacted a deceased store owner's son about the coins and precious metals he had been storing at the family's gold and silver store. Boyer, 263 Mont. at 290, 867 P.2d at 1117. The son, who was not a personal representative of the decedent's estate, assured Boyer that the property was safe at the store and, over the next two years, Boyer received further assurances to the same effect. Boyer, 263 Mont. at 290-91, 867 P.2d at 1117-18. However, when Boyer attempted to retrieve his property with a copy of the storage receipt, the store refused to return his property and Boyer filed a complaint seeking recovery of his gold and silver. Boyer, 263 Mont. at 291, 867 P.2d at 1118.\\n\\u00b619 The district court found that Boyer's claim was barred because he failed to file a creditor's claim within the time limits contained in \\u00a7 72-3-803, MCA. In reversing the district court, we found the statutory bar inapplicable because the estate \\\"had actual knowledge of Boyer's claim\\\" and because, \\\"based upon the family's representations, Boyer assumed his claim was intact and that no creditor's claim needed to be filed.\\\" Boyer, 263 Mont. at 294, 867 P.2d at 1119 (emphasis added). Accordingly, we held that the estate was estopped from raising the nonclaim statute to bar Boyer's claim:\\nWe wish to emphasize that the rationale behind the statutory requirement that a creditor's claim be filed is sound and should not be easily dispensed with. However, under very limited circumstances, as in this case, where an estate has actual notice of a claim and makes representations to the claimant which lead the claimant to believe that it is not necessary to protect his claim by filing a creditor's claim under \\u00a7 72-3-801 et seq., MCA, the estate will not be able to use the failure to file a creditor's claim as a defense to bar the claim.\\nBoyer, 263 Mont. at 294, 867 P.2d at 1119-20.\\n\\u00b620 In this case, the Defendants ask us to ignore the holdings announced in Pope and Boyer. We decline to do so. As required by Pope, the Woods were entitled to receive actual notice to present their claims because they were known creditors of the estate, as demonstrated by the Leisz letter asking for further verification of the contract and copying the personal representatives of the estate, Anderson and Stover. Additionally, and contrary to the Defendants' assertion, while the Leisz letter was sufficient to prove that the Defendants had knowledge of the Woods' property interest in the five-acre tract, the letter was insufficient to give actual notice to the Woods under \\u00a7 72-3-801, MCA, because it did not notify them to present their claim within the statutory time period or be forever barred. Furthermore, because Hegeman, a family member of the decedent and an heir of the estate, made a representation to the Woods similar to the assurance made in Boyer, which led the Woods to believe that it was unnecessary for them to file a creditor's claim, our case law further precludes the estate from using the nonclaim statute as a defense to bar the claim. Thus, the District Court did not err in its conclusion that the Defendants could not use the limitation provided in \\u00a7 72-3-803(2)(b), MCA, to bar the Woods' claim.\\n\\u00b621 However, the court's determination under \\u00a7 72-3-803, MCA, does not end our inquiry here because the statutory provision only applies to claims against a decedent's estate. The Commissioner's Comments accompanying the Uniform Probate Code state that \\\"a claimant whose claim has not been barred may have alternative remedies when an estate has been distributed subject to his claim.\\\" Unif. Probate Code \\u00a7 3-1005 cmt. (2010). In this case, the estate had been closed and a deed of distribution had been filed prior to the filing of the Woods' complaint. See Mathey v. Mathey, 109 Mont. 467, 473, 98 P.2d 373, 376 (1939) (\\\"After distribution to the heirs or devisees, the estate ceases to exist.\\\"). Because the Woods did not petition the District Court to reopen the estate for consideration of their claims under Title 72, chapter 3, part 8, MCA, the Woods' alternative remedies in this case are provided in \\u00a7 72-3-1011 and -1013, MCA, and subject to the period of limitations contained therein.\\n\\u00b622 For instance, once an estate has been closed through the filing of a closing statement, a creditor may maintain a claim against a personal representative under \\u00a7 72-3-1011, MCA, which states:\\nUnless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within 6 months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.\\nAdditionally, after an estate has been closed and its estate properties distributed, \\u00a7 72-3-1012, MCA, states that the distributees take subject to undischarged, unbarred claims. Such claims are subject to the period of limitations provisions of \\u00a7 72-3-1013, MCA, which states in pertinent part:\\n(1) Unless . otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim . is forever barred at the later of 3 years after the decedent's death or 1 year after the time of distribution thereof.\\n(2) This section does not bar an action to recover property or value received as the result of fraud.\\nSection 72-3-1013, MCA (emphasis added). Thus, this provision \\\"describes an ultimate time limit for recovery by creditors . of a decedent from distributees.\\\" Unif. Probate Code \\u00a7 3-1006 cmt. (2010). In sum, while we agree with the District Court's determination the Woods' claim is not \\\"otherwise barred\\\" under \\u00a7 72-3-803, MCA, we must now determine if their action can proceed under \\u00a7 72-3-1011 and -1013, MCA, because the estate in this case has been closed and distributed.\\n\\u00b623 Montana's probate code provides an overriding fraud provision, which enables a person injured by fraud to \\\"obtain appropriate relief, including restitution against the perpetrator of the fraud or any person benefiting from the fraud, whether innocent or not, other than a bona fide purchaser for value and without notice.\\\" Section 72-1-111(1), MCA. Under this section, where a person institutes \\\"an action to recover property or value received as the result of [a distributee's] fraud,\\\" the person must commence proceedings \\\"within 2 years after the discovery of the fraud.\\\" Sections 72-1-111(2), 72-3-1013(2), MCA.\\n\\u00b624 There are two kinds of fraud recognized in Montana: actual fraud and constructive fraud. Section 28-2-404, MCA. While we agree with the District Court's finding that the facts in this case do not support a finding of actual fraud, we conclude that the court's findings support the Woods' constructive fraud claim against the Defendants in this case. Under \\u00a7 28-2-406, MCA, constructive fraud is defined as:\\n(1) any breach of duty that, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under the person in fault by misleading another person to that person's prejudice or to the prejudice of anyone claiming under that person; or\\n(2) any act or omission that the law especially declares to be fraudulent, without respect to actual fraud.\\n\\u00b625 The presence of a legal duty is an essential element of a claim for constructive fraud. Mattingly v. First Bank, 285 Mont. 209, 218, 947 P.2d 66, 71 (1997). Whether a legal duty exists is a question of law for the court's determination. H-D Irrigating, Inc. v. Kimble Props., Inc., 2000 MT 212, \\u00b6 25, 301 Mont. 34, 8 P.3d 95. \\\"Although the legal duty which often exists in constructive fraud cases is a fiduciary one, this Court has previously held that Montana's constructive fraud statute 'does not require that the plaintiff demonstrate a fiduciary relationship, [but] merely requires the establishment of a duty.' \\\" H-D Irrigating, \\u00b6 25 (quoting Mattingly, 285 Mont. at 219, 947 P.2d at 72). Under certain \\\"special circumstances,\\\" constructive fraud \\\"may exist where one party has acted to mislead the other in some way.\\\" H-D Irrigating, \\u00b6 25. For instance, \\\"Where a party, by his words or conduct creates a false impression concerning serious impairments or other important matters and subsequently fails to disclose relevant factors, constructive fraud may be found.\\\" Drilcon, Inc. v. Roil Energy Corp., 230 Mont. 166, 171, 749 P.2d 1058, 1061 (1988).\\n\\u00b626 The Defendants argue that the Woods filed an untimely complaint under \\u00a7 72-3-1011 and -1013(1), MCA, because it was filed more than: 1) six months after the filing of the closing statement; 2) three years after Stella Sellmer's death; and 3) one year after the final deed of distribution. The District Court rejected the Woods' constructive fraud claim after finding no evidence of false statements \\\"that induced the Woods to do anything, or refrain from doing anything, regarding the formation or performance of the contract.\\\" But the court also found the Hegeman e-mail an \\\"arguabllel\\\" exception, though it \\\"merely caused [the] Woods to delay legal advice or initiat[e] legal action for a period of time.\\\" Given this finding, we conclude that the court did not err in concluding that the Woods were not time barred from making their claim in this case.\\n\\u00b627 As a preliminary matter, we first address the Defendants' contention that the Woods filed an untimely complaint under \\u00a7 72-3-1011, MCA. First, we agree with the District Court's finding that Defendants Anderson and Stover, as personal representatives, did not engage in fraudulent conduct in this case because the record does not demonstrate that Anderson or Stover misled the Woods to their detriment. Additionally, while \\u00a7 72-3-1011, MCA, provides that a personal representative cannot invoke the six-month limitations period to bar a claim if the representative has made a misrepresentation or an inadequate disclosure, the Woods' complaint did not allege such conduct. Moreover, the Woods' complaint did not allege a breach of fiduciary duty on the part of Anderson and Stover and, even if they could maintain such an action, they were time barred by the six-month limitation period contained therein. Thus, we conclude that the Woods could not maintain an action against Anderson and Stover, in their capacity as personal representatives, under \\u00a7 72-3-1011, MCA.\\n\\u00b628 As noted above, the District Court found that Hegeman's representations caused the Woods to delay legal advice or legal action on their claim. While the court downplayed this effect of Hegeman's representations, we conclude that her misleading statements constitute a special circumstance which supports a finding of constructive fraud. Although no fiduciary relationship existed between the Woods and Hegeman, Hegeman, through her own representations, created a legal duty to disclose facts relevant to the closing of the estate and subsequent sale of the five-acre tract when she promised to protect the Woods' interest in the property. Specifically, Hegeman, Kent Wood's mother, made assurances to her son and daughter-in-law that she would personally see to it that no action would be taken to allow for the transfer of the five-acre tract until their interest in the property was first addressed. However, as the District Court found, at some point Hegeman \\\"changed her mind\\\" and acquiesced to the estate's plan to deny the Woods' claim of interest in the contract and the property, but failed to disclose her change in position to the Woods. In failing to tell the Woods that she had instead agreed to advance her own interest in the property over that of her son and daughter-in-law, Hegeman acted in direct contravention of her earlier promise to protect the Woods' interest over her own. Even if she lacked fraudulent intent, Hegeman's action and subsequent omission constituted constructive fraud because Hegeman and the other distributees gained an advantage by misleading the Woods to their prejudice. Section 28-2-406(1), MCA.\\n\\u00b629 Because the Woods filed their complaint within two years of discovering the fraud, which began when they became of aware of the land sale contract between the Defendants and a bona fide purchaser for value, the commenced action fell within the limitations period contained in \\u00a7 72-1-111(2), MCA. While the District Court did not explicitly identify the fraudulent conduct in this case, its findings and conclusion support such a finding. As such, we affirm the District Court's order insofar as it entered judgment in favor of the Woods and against Defendants Hegeman, Anderson, and Stover for actual damages. Dewey v. Stringer, 2014 MT 136, \\u00b6 16, 375 Mont. 176, 325 P.3d 1236 (stating that \\\"[w]e will not reverse a district court when it reaches the right result, even if it reached that result for the wrong reason\\\"). However, we must also remand for an entry of judgment against Defendants Melnrick and Marich because, under \\u00a7 72-3-1012, MCA, they have been joined in this proceeding and the statute requires them to also bear the cost of the claim. Section 72-3-1012(2), MCA (\\\"As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration.\\\").\\n\\u00b630 Based on the foregoing, we conclude that the District Court did not err in entering judgment in favor of the Woods and against Defendants Hegeman, Anderson, and Stover. At the same time, we must remand this case for an entry of judgment against all the distributees of the estate in accordance with \\u00a7 72-3-1012(2), MCA.\\nCONCLUSION\\n\\u00b631 For the foregoing reasons, we affirm in part and reverse in part, and remand for an entry of judgment consistent with this Opinion.\\nJUSTICES SANDEFUR, BAKER, McKINNON and SHEA concur.\\nThe Woods' filed their original complaint on March 27, 2014, and an amended complaint on June 30, 2014.\\nThis Court often relies on the Commissioners' Comments accompanying the Uniform Probate Code when interpreting Montana statutes based on that code. See In re Estate of Lettengarver, 249 Mont. 92, 99, 813 P.2d 468, 473 (1991).\\nWe note that \\\"a personal representative of a decedent's estate does not owe fiduciary duties to a person having claims against the estate until the claim has been allowed.\\\" Unif. Probate Code \\u00a7 3-703(b) cmt. (2010). Also, \\u00a7 72-3-801(3), MCA, specifically states that a \\\"personal representative is not liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section.\\\"\\nWe note that in moderating the effect of Hegeman's representation, the District Court referenced its conclusion that the Woods could maintain a claim under \\u00a7 72-3-803, MCA. However, as we explain above, the Woods could no longer maintain an action under this statute because, in this case, the estate had been closed and distributed and the Woods did not petition to reopen the estate in order to bring their creditor's claim.\"}"

mont/12446541.json

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+"{\"id\": \"12446541\", \"name\": \"Klepper, et al. v. MDOT\", \"name_abbreviation\": \"Klepper v. MDOT\", \"decision_date\": \"2016-10-04\", \"docket_number\": \"DA 15-0697\", \"first_page\": \"392\", \"last_page\": \"392\", \"citations\": \"386 Mont. 392\", \"volume\": \"386\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:50:08.865101+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Klepper, et al. v. MDOT\", \"head_matter\": \"SUPREME COURT OF MONTANA\\nKlepper, et al. v. MDOT\\n2016 MT 248N\\nDA 15-0697\\n10/04/16\", \"word_count\": \"19\", \"char_count\": \"110\", \"text\": \"Affirmed\\nDist. 4 (Missoula)\"}"

mont/12460446.json

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+"{\"id\": \"12460446\", \"name\": \"MT Opticom v. Holsinger\", \"name_abbreviation\": \"MT Opticom v. Holsinger\", \"decision_date\": \"2016-05-10\", \"docket_number\": \"DA 15-0728\", \"first_page\": \"551\", \"last_page\": \"551\", \"citations\": \"384 Mont. 551\", \"volume\": \"384\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T02:25:56.492840+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MT Opticom v. Holsinger\", \"head_matter\": \"MT Opticom v. Holsinger\\nDA 15-0728\\n05/10/16\\n2016 MT 107N\", \"word_count\": \"14\", \"char_count\": \"86\", \"text\": \"Affirmed\\nDist. 18 (Gallatin)\"}"

mont/12570555.json

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+"{\"id\": \"12570555\", \"name\": \"IN RE the Matter of: A.J.C., a minor child. Dennis Ramsey Cromwell, Petitioner and Appellant, v. Laura Schaefer, Petitioner and Appellee.\", \"name_abbreviation\": \"Cromwell v. Schaefer (In re A.J.C.)\", \"decision_date\": \"2018-09-18\", \"docket_number\": \"DA 17-0667\", \"first_page\": \"67\", \"last_page\": \"72\", \"citations\": \"427 P.3d 67\", \"volume\": \"427\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"IN RE the Matter of: A.J.C., a minor child.\", \"head_matter\": \"IN RE the Matter of: A.J.C., a minor child.\\nDennis Ramsey Cromwell, Petitioner and Appellant,\\nv.\\nLaura Schaefer, Petitioner and Appellee.\\nDA 17-0667\\nSupreme Court of Montana.\\nSubmitted on Briefs: June 6, 2018\\nDecided: September 18, 2018\\nFor Appellant: Tracy Labin Rhodes, Attorney at Law, Missoula, Montana\\nFor Appellee: Jean Adele Carter, Attorney at Law, Thompson Falls, Montana\", \"word_count\": \"2579\", \"char_count\": \"15663\", \"text\": \"Ingrid Gustafson, J., delivered the Opinion of the Court.\\n\\u00b6 1 Appellant Dennis Cromwell, the natural father of A.J.C. (Father), appeals the July 20, 2016 Findings, Conclusions and Parenting Plan ordered by the Twentieth Judicial District Court, Sanders County. In a separate but related matter, Father has also appealed the District Court's September 26, 2017 Order Denying Department's Motion to Amend the Permanency Plan and Order of Dismissal.\\n\\u00b6 2 We restate the issue on appeal as follows:\\nDid the District Court err by allowing a child's grandmother to pursue a parental interest under Title 40 while a dependent neglect case was pending under Title 41?\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b6 3 On September 22, 2014, the Department of Health and Human Services, Child and Family Services Division (Department) filed a Petition for Emergency Protective Services (EPS) and Temporary Investigative Authority (TIA) in a dependent neglect (DN) matter, designated as DN 14-06 in the District Court. At the time, A.J.C. was eleven years old and was in the legal custody of his mother (Mother), who frequently left him in the care of his grandmother, Appellee Laura Schaefer (Grandmother). Up to that time, Father, who resided in Oregon, had not participated in parenting A.J.C. to any significant degree, nor had he provided consistent and substantial financial support.\\n\\u00b6 4 After the Department became formally involved with Mother, Father acted to gain custody of A.J.C. On October 14, 2014, at the Department's direction, Father, naming Mother as Respondent, petitioned the District Court for a parenting plan designating him as A.J.C.'s primary residential parent. This petition, DR 14-71, is the cause underlying this appeal.\\n\\u00b6 5 On November 3, 2014, the District Court granted EPS and TIA in DN 14-06. On November 17, 2014, the District Court entered default against Mother in DR 14-71 because she had failed to appear. On February 20, 2015, Mother appeared in DR 14-71 via counsel and moved to set aside default. Ultimately, Father and Mother stipulated to an interim parenting plan which had A.J.C. residing with Grandmother during the school year and visiting Father for six weeks during the summer of 2015. The District Court set aside Mother's default and approved the stipulated parenting plan on March 24, 2015, subject to any occurrences in DN 14-06.\\n\\u00b6 6 On August 13, 2015, Father moved to amend the interim parenting plan, alleging that Mother had not complied with the treatment plan approved by the District Court in DN 14-06. Father asserted that he had agreed to the parenting plan because Mother was in a residential chemical dependency treatment program and he believed placement with Grandmother was appropriate at the time. Father alleged that in the intervening months, Mother had left the residential program and events had occurred which caused him to conclude Grandmother was not an appropriate placement for A.J.C., including Mother being arrested at Grandmother's home, Grandmother allowing a convicted felon to stay at the home while A.J.C. was present, and A.J.C. arriving for his summer visit with Father lacking appropriate clothing and in need of eyeglasses and dental care. Father also alleged that A.J.C. had done well in Oregon and had made friends. Father proposed that A.J.C. reside with him during the school year and visit Mother at Grandmother's home for six weeks each summer.\\n\\u00b6 7 On September 2, 2015, Grandmother filed a Petition to Establish a Parental Interest as a separate action, which the District Court designated DR 15-37. Grandmother alleged that Mother was not complying with her treatment plan and that Father had abandoned A.J.C. Grandmother argued that she met the criteria for a third-party interest in A.J.C. under \\u00a7 40-4-228, MCA. On January 4, 2016, the District Court consolidated DR 15-37 into DR 14-71.\\n\\u00b6 8 On April 12, 2016, the District Court held a hearing regarding Grandmother's petition to establish a parental interest and the proposed parenting plans Father and Grandmother had filed. The hearing encompassed not only the matters pending in this consolidated case, but also included hearing on the Department's pending Motion for Approval of Permanency Plan in DN 14-06.\\n\\u00b6 9 On April 18, 2016, Father filed a Motion to Adopt Parenting Plan, and Incorporated Brief in Support, in which he asked the District Court to place A.J.C. in his custody during the school year while allowing continued summer visitation with Grandmother. Father argued that Grandmother was not legally entitled to a parental interest or placement of A.J.C. Father further argued that such placement would not be in A.J.C.'s best interests, as he alleged A.J.C. had been exposed to Mother's drug use, domestic violence, other illegal activity, and association with felons while in Grandmother's care, and alleged that Grandmother had demonstrated an inability to keep Mother away from A.J.C. Grandmother objected to Father's proposed parenting plan.\\n\\u00b6 10 On July 18, 2016, prior to the District Court issuing rulings on the issues pending at the April hearing, Father filed a motion for an emergency status hearing in DN 14-06. Father indicated the Department had advised him that it intended to place A.J.C. with him for a trial home placement, and Father asked the District Court to hold a status hearing prior to issuing its rulings on the issues argued at the April hearing.\\n\\u00b6 11 However, prior to responding to Father's motion for emergency status hearing, on July 20, 2016, the District Court issued findings of fact, conclusions of law, and a parenting plan in this case. It awarded Grandmother primary residential custody of A.J.C. and provided Father six weeks of parenting time during the summer. Father appeals from this determination, arguing that the District Court should not have entertained Grandmother's petition for a parental interest and proposed parenting plan because she did not have standing to pursue a parental interest action under Title 40 while a DN action under Title 41 was pending.\\nSTANDARD OF REVIEW\\n\\u00b6 12 The same standard of review applies to both termination of parental rights and custodial determinations. In both instances, the District Court's decision is afforded all reasonable presumptions as to the correctness of the determination and therefore such decision will not be disturbed on appeal unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a clear abuse of discretion. Our review 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. In re M.B. , 2009 MT 97, \\u00b6 11, 350 Mont. 76, 204 P.3d 1242 (citations and internal quotations omitted).\\n\\u00b6 13 Questions of justiciability, such as standing, are questions of law which we review de novo. We determine whether a party has standing as of the time the action is brought. In re C.B.D. , 2017 MT 108, \\u00b6 5, 387 Mont. 347, 394 P.3d 202 (citation and internal quotation omitted).\\nDISCUSSION\\n\\u00b6 14 Did the District Court err by allowing a child's grandmother to pursue a parental interest under Title 40 while a dependent neglect case was pending under Title 41?\\n\\u00b6 15 The District Court adjudicated A.J.C. as a youth in need of care in DN 14-06 under the authority of Title 41, ch. 3, Mont. Code Ann. While the Title 41 action was pending, Grandmother filed a petition to establish a parental interest and a parenting plan pursuant to \\u00a7 40-4-228, MCA. Father moved to dismiss Grandmother's petition, asserting lack of standing and jurisdiction. The District Court ultimately ordered a parenting plan that provided for A.J.C. to reside primarily with Grandmother and to spend six weeks each summer with Father.\\n\\u00b6 16 Father argues that pursuant to \\u00a7 40-4-228(1), MCA, Grandmother, a nonparent, did not have standing to pursue a parental interest while the Title 41 action was pending and thus the District Court erred in issuing a parenting plan which awarded custody to Grandmother because it lacked jurisdiction to do so. Father further argues the District Court deprived him of his fundamental right to parent by inappropriately using a best interest test to award custody to Grandmother, a nonparent.\\n\\u00b6 17 Grandmother asserts A.J.C. desires to live with her. She asserts Father abandoned A.J.C. and she faults Father for being an absent parent until the DN case was commenced. She characterizes Father as only a \\\"sperm donor\\\" and argues Father should not be rewarded with standing because of a \\\"technicality in the law.\\\" She invites us to \\\"clarify and/or correct\\\" the DR and DN statutes.\\n\\u00b6 18 A threshold question in every case is whether a party has standing to bring an action. In re C.B.D. , \\u00b6 7 (citation omitted). Here, the question is whether Grandmother has standing to pursue a parental interest under Title 40 during the pendency of a separate dependent abuse and neglect case under Title 41, in light of \\u00a7 40-4-228(1), MCA. Section 40-4-228(1), MCA, states in relevant part: \\\"In cases when a nonparent seeks a parental interest in a child under 40-4-211 . the provisions of this chapter apply unless a separate action is pending under Title 41, chapter 3 .\\\" (Emphasis added.)\\n\\u00b6 19 Grandmother points to \\u00a7 40-4-211(4)(b), MCA, which provides that a parenting plan proceeding may be commenced in a district court by a nonparent if that person has established a child-parent relationship with the child. She asserts \\u00a7 40-4-211, MCA, \\\"seems\\\" to give her standing, but acknowledges that her interpretation of the applicability of \\u00a7 40-4-211, MCA, places it in conflict with \\u00a7 40-4-228(1), MCA. Grandmother appears to recognize that the application of \\u00a7 40-4-228, MCA, limits her ability to pursue her action under \\u00a7 40-4-211, MCA ; she argues this Court should \\\"revise[ ] or modif[y]\\\" \\u00a7 40-4-228(1), MCA, to permit her to pursue a parental interest action even though a DN action is pending.\\n\\u00b6 20 Revision or modification of a statute is the province of the Legislature, not this Court. This Court will not intrude in areas properly the province of the Legislature. Anesthesiology, P.C. v. Blue Cross & Blue Shield , 246 Mont. 277, 280, 806 P.2d 16, 18 (1990). Our role is to interpret and apply statutes consistent with their plain language and where the language is ambiguous, consistent with the legislative intent. Sweeney v. Mont. Third Jud. Dist. Ct. , 2018 MT 95, \\u00b6 12, 391 Mont. 224, 416 P.3d 187 ;\\nGulbrandson v. Carey , 272 Mont. 494, 500, 901 P.2d 573, 577 (1995) (citations omitted); Pinnow v. Mont. State Fund , 2007 MT 332, \\u00b6 37, 340 Mont. 217, 172 P.3d 1273 (even where Court notes \\\"gaping holes in the statutory scheme,\\\" it is the province of the Legislature, not this Court, to remedy).\\n\\u00b6 21 Section 40-4-211(4)(b), MCA, gives standing to a nonparent to seek a parenting interest of a minor child if that person has established a child-parent relationship. Kulstad v. Maniaci , 2009 MT 326, \\u00b6 57, 352 Mont. 513, 220 P.3d 595. However, this statute must be read in conjunction with \\u00a7 40-4-228(1), MCA, which precludes the application of Title 40, ch. 4 while a separate action is pending under Title 41, ch. 3. By the clear, unambiguous language of \\u00a7 40-4-228(1), MCA, Grandmother lacked the ability to pursue an action to establish a parental interest while the Title 41 child dependency action was pending and the District Court erred in awarding Grandmother custody or visitation while the Title 41 child dependency action was pending.\\n\\u00b6 22 Recognizing Montana law does not provide her the ability to pursue a parental interest during pendency of a Title 41 child dependency proceeding, Grandmother asserts we should instead adopt a best interest test, because she alleges it is in A.J.C.'s best interest to reside with her. We have already determined such an approach to be unconstitutional and contrary to a parent's fundamental right to parent. In re Parenting of J.N.P. v. Knopp , 2001 MT 120, 305 Mont. 351, 27 P.3d 953. In In re Parenting of J.N.P. , the grandparents filed a petition for a parenting plan asserting it was in their grandchild's best interest to reside with them. The District Court dismissed the petition, concluding that, absent termination of mother's parental rights, it had no authority to grant a parenting plan to grandparents. In re Parenting of J.N.P. , \\u00b6 12. This Court affirmed and expounded on the pitfalls of elevating a best interest test over a parent's fundamental right to parent:\\n[A] natural parent cannot be denied custody of his or her child absent termination of that person's parental rights for abuse or neglect pursuant to Title 41, Chapter 3 of the Montana Code.\\nOur case law does not permit destruction of a natural parent's fundamental right to the custody of his or her child based simply on the subjective determination of that child's best interest. Were we to allow such a result, the implications are obvious. Is it in a child's best interest that he or she be raised in an affluent family as opposed to an impoverished family? Would it be better that a child be raised by extremely intelligent parents rather than people of average intelligence? Is a child better off if that child is raised in a conventional life style rather than an unconventional life style? All of these factors could arguably be considered in determining the child's best interests. However, none even remotely justify denying a parent's constitutional and fundamental right to the custody of his or her child.\\nIn re Parenting of J.N.P. , \\u00b6 25-26.\\n\\u00b6 23 Here, the District Court should have stayed the DR action until the Title 41 action was resolved, at which time the District Court could lift the stay, issue an interim parenting plan if it deemed necessary, hear Father's and Grandmother's petitions, and then issue detailed written findings of fact and conclusions of law and a parenting plan, if appropriate. Thus, we remand to the District Court for further action consistent with this Court's Opinions here and in DA 17-0600.\\nCONCLUSION\\n\\u00b6 24 Because Grandmother could not pursue a parental interest and parenting plan during the pendency of a Title 41 child dependency proceeding, the District Court erred in ordering a parenting plan which awarded Grandmother primary residential custody during the course of an ongoing child dependency proceeding.\\n\\u00b6 25 Reversed and remanded for action consistent with this Opinion.\\nWe concur:\\nMIKE McGRATH, C.J.\\nJAMES JEREMIAH SHEA, J.\\nBETH BAKER, J.\\nLAURIE McKINNON, J.\\nDIRK M. SANDEFUR, J.\\nJIM RICE, J.\\nAs the parties to each of these appeals are not identical, this Court has issued separate Opinions. See In re A.J.C. , DA 17-0600. However, these appeals are interrelated and based on the same underlying facts. The District Court consolidated Father's parenting plan action (DR 14-71) with Grandmother's parental interest/parenting plan action (DR 15-37), and then held joint hearing on April 12, 2016 on these matters as well as on the Department's motion to approve its permanency plan (DN 14-06).\\nThe parties do not dispute that Grandmother has established a \\\"child-parent relationship\\\" with A.J.C. as that term is defined in \\u00a7 40-4-211(6), MCA.\"}"

mont/130362.json

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+"{\"id\": \"130362\", \"name\": \"MIKE SPRINGER, Plaintiff, Respondent and Cross-Appellant, v. JASON BECKER, a police officer for the City of Bozeman; CITY OF BOZEMAN, as a political subdivision of the State of Montana, Defendants and Appellants\", \"name_abbreviation\": \"Springer v. Becker\", \"decision_date\": \"1997-08-26\", \"docket_number\": \"No. 96-602\", \"first_page\": \"267\", \"last_page\": \"284\", \"citations\": \"284 Mont. 267\", \"volume\": \"284\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:30:34.021794+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.\", \"parties\": \"MIKE SPRINGER, Plaintiff, Respondent and Cross-Appellant, v. JASON BECKER, a police officer for the City of Bozeman; CITY OF BOZEMAN, as a political subdivision of the State of Montana, Defendants and Appellants.\", \"head_matter\": \"MIKE SPRINGER, Plaintiff, Respondent and Cross-Appellant, v. JASON BECKER, a police officer for the City of Bozeman; CITY OF BOZEMAN, as a political subdivision of the State of Montana, Defendants and Appellants.\\nNo. 96-602.\\nSubmitted on Briefs March 6, 1997.\\nDecided August 26, 1997.\\n54 St.Rep. 876. 943 P.2d 1300.\\n284 Mont. 267.\\nFor Appellant: Barry G. O\\u2019Connell, Moore, O\\u2019Connell & Refling, Bozeman.\\nFor Respondent: Nathan J. Hoines, Great Falls.\", \"word_count\": \"6217\", \"char_count\": \"37920\", \"text\": \"JUSTICE NELSON\\ndelivered the Opinion of the Court.\\nThis is an appeal from certain judgments entered by the Eighteenth Judicial District Court, Gallatin County. On June 26,1996, the District Court granted Plaintiff Springer (Springer) summary judgment on issues involving the City of Bozeman's liability to Springer for damages. On July 11, 1996, the District Court entered judgment on a jury verdict for damages in Springer's favor and awarded Springer costs. From these judgments, Defendants appeal and Sprin ger cross appeals. We affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.\\nWe address the following issues raised on appeal:\\n1. Did the District Court err in granting Springer's motion for summary judgment?\\n2. Did the District Court abuse its discretion in awarding certain costs to Springer?\\nWe also address the following issue raised on cross appeal:\\n3. Did the District Court abuse its discretion in failing to award Springer attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P, for proving requests for admissions that Defendants denied?\\nFACTUAL AND PROCEDURAL BACKGROUND\\nPlaintiff Mike Springer (Springer) owned a 1968 Volkswagen van in September 1992 which he parked on the 2000 block of South Rouse in Bozeman, Montana. On September 24, 1992, Parking Control Officer Bill McManis (McManis), placed a \\\"Notice of Abandoned Vehicle\\\" on Springer's van which specified a tow date of September 25, 1992. Springer observed this notice and on September 25,1992, prior to his van being towed, Springer moved his van from the east side of the street to the west side of the street. On September 28,1992, Springer's van was towed. Subsequently, Police Officer Jason Becker signed a Gallatin County Junk Vehicle Release form and Springer's van was destroyed. Springer was never notified that his van had been towed.\\nSpringer brought this action against Defendants Jason Becker and the City of Bozeman (collectively, the City) to recover damages for destruction of his 1968 Volkswagen van. The City first brought a motion for summary judgment which the District Court denied. Subsequently, Springer filed a motion for summary judgment which the District Court granted on June 26,1996. The District Court held that Springer's van was not a junk vehicle as defined by \\u00a7 75-10-501(4), MCA (1991), nor was the van an abandoned vehicle as defined by \\u00a7 61-12-401(1), MCA (1991). On June 27, 1996, a jury trial was held on the issue of damages and a verdict of $1,500.00 was returned in Springer's favor. On July 11, 1996, the District Court entered judgment for Springer in the amount of $1,500.00 in damages plus $1,636.32 in costs. The City appeals both the court's June 26, 1996 Order granting Springer summary judgment and the court's July 11, 1996 Judgment in favor of Springer. Springer cross appeals raising the issue of whether the District Court abused its discretion by failing to award him attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P. We affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.\\nDISCUSSION\\n1. Did the District Court err in granting Springer's motion for summary judgment?\\nAfter a hearing on Springer's motion for summary judgment, the District Court determined that no genuine issues of material fact were in dispute and concluded that Springer's van was not a junk vehicle pursuant to \\u00a7 75-10-501(4), MCA (1991), and was not an abandoned vehicle pursuant to \\u00a7 61-12-401(1), MCA (1991). The District Court, therefore, held that the City did not take reasonable efforts to notify Springer after his vehicle had been towed, pursuant to \\u00a7 61-12-402, MCA (1991). Accordingly, the District Court granted Springer summary judgment.\\nSummary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court's grant of a motion for summary judgment de novo and apply the same criteria under Rule 56(c), M.R.Civ.P, as did the district court. DeVoe v. State (1997), [281 Mont. 356], 935 P.2d 256, 262. The moving party carries the initial burden of establishing the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. DeVoe, 935 P.2d at 262 (citing Carelli v. Hall (1996), 279 Mont. 202, 207, 926 P.2d 756, 759). If the movingparty satisfies its initial burden, the burden then shifts to the party opposing summary judgment to present evidence raising a genuine issue of material fact. DeVoe, 935 P.2d at 263 (citation omitted). \\\"Material issues of fact are identified by looking to the substantive law governing the proceedings.\\\" DeVoe, 935 P.2d at 263 (citation omitted).\\nSection 75-10-501(4), MCA (1991), defines a \\\"junk vehicle\\\" as a \\\"discarded, ruined, wrecked, or dismantled motor vehicle, including component parts, which is not lawfully and validly licensed and remains inoperative or incapable of being driven.\\\" Pursuant to \\u00a7 61-12-401(1), MCA (1991), before a vehicle can be taken into custody, whether it is designated as a \\\"junk vehicle\\\" or not, it must have been abandoned for more than five days on a city street. Furthermore, \\u00a7 61-12-402, MCA (1991), requires that when a vehicle is taken into custody, notice must be given to the registered owner of the vehicle concerning the location of the vehicle by a registered or certified letter mailed, at least 30 days before the vehicle is sold, to the latest address shown in the records of the office of the department of justice, return receipt requested and postage prepaid. However, an exception to this notice requirement provides that a vehicle found by law enforcement officials to be a \\\"junk vehicle\\\" as defined by \\u00a7 75-10-501, MCA, and certified as having an appraised value of $100 or less, as determined by the Department of Revenue, may be directly submitted for disposal without notice and without a required holding period. Section 61-12-402(6), MCA (1991).\\nThe City, based on the above statutory sections, argues that summary judgment was not proper in this case because genuine issues of material fact existed. Specifically, the City argues that the District Court ignored the uncontroverted affidavits of Bill McManis and Arietta Derleth which stated that Springer's 1968 Volkswagen van had been parked on a city street for more than five days; had expired license plates; had structural damage and lacked windshield wipers; and had an assessed value of less than $100.00. The City asserts that based on these affidavits, the issues of whether Springer's van was a \\\"junk vehicle\\\" and whether the City properly disposed of Springer's van should have been presented to a jury, and, therefore, we should reverse the District Court's Order granting Springer summary judgment.\\nSpringer responds that we should affirm the District Court's Order granting his motion for summary judgment because the City has failed to raise any genuine issues of material fact. First, Springer argues that the City failed to argue that a genuine issue of material fact existed as to the third requirement of \\u00a7 75-10-501(4), MCA(1991), which provides that before a vehicle can be classified as a junk vehicle, it has to remain \\\"inoperative or incapable of being driven.\\\" Springer asserts that the undisputed and uncontroverted evidence shows that his van was operable and capable of being driven because he had moved his van from the east side of the street to the west side of the street before it was towed and destroyed. Springer, therefore, contends that because all three elements of \\u00a7 75-10-501(4), MCA (1991), were not satisfied, his van could not be classified as a junk vehicle.\\nSecond, Springer argues that the City failed to argue that a genuine issue of material fact existed as to whether Springer's van was an abandoned vehicle pursuant to \\u00a7 61-12-401(1), MCA (1991). Springer again asserts that it is an uncontroverted fact that after he observed the \\\"N otice of Abandoned Vehicle,\\\" but before the City towed his van, he moved his van from the east side of the street to the west side of the street. Furthermore, Springer points out that McManis admitted in his deposition that he had no personal knowledge concerning the length of time that Springer's van had been parked on the street and that he did not believe that Springer's van was an abandoned vehicle. Therefore, Springer contends that, based upon these uncontroverted facts alone, his van could not be classified as an abandoned vehicle under \\u00a7 61-12-401(1), MCA(1991). Finally, relying on Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186, Springer argues that the City should be equitably estopped from arguing that Springer's van was an abandoned vehicle based on the actions of McManis and the City's violation of their policy concerning abandoned vehicles.\\nIt is important to first note that the transcript of the June 24, 1996 summary judgment hearing is not included in the record provided to this Court on appeal. The City, as appellant, had a duty under Rule 9(a), M.R.App.P., to provide this Court with a record sufficient to enable us to rule upon the issues raised. While it would be appropriate to dismiss this appeal for the City's failure to provide this Court with a sufficient record, dismissal need not be automatic in every instance where a party fails to strictly follow the Rules of Appellate Procedure. Williams v. Rigler (1988), 234 Mont. 161, 163, 761 P.2d 833, 834. Here, while the lack of a summary judgment hearing transcript limits our review of this issue, any detriment inures to the City, not Springer. Therefore, we will address the issues raised by the City.\\nWe agree with Springer that the City failed to present an argument concerning the third requirement of \\u00a7 75-10-501(4), MCA (1991), and, thereby, failed to raise a genuine issue of material fact concerning the classification of Springer's van as a junk vehicle. From the record provided this Court, we note that it is uncontroverted that Springer moved his van from the east side of the street to the west side of the street before the City towed and destroyed his van. Additionally, McManis acknowledged in his deposition that prior to having Springer's van towed and impounded, he did not know if the van was capable of being operated and driven. Consequently, we conclude that the undisputed and uncontroverted facts show that Springer's van was operable and capable of being driven prior to the time the City had Springer's van towed and destroyed. Accordingly, we hold that the District Court correctly determined that Springer's van was not a junk vehicle as defined by \\u00a7 75-10-501(4), MCA (1991).\\nNext, pursuant to \\u00a7 61-12-401(1), MCA (1991), before a vehicle can be taken into custody, whether it is a junk vehicle or not, it must have been abandoned for more than five days on a city street. We again agree with Springer that the City has failed to raise any genuine issues of material fact concerning this issue. The record shows that after observing the \\\"Notice of Abandoned Vehicle\\\" placed on his van by McManis on September 24, 1992, Springer moved his van to the opposite side of the street the next day. Furthermore, McManis admitted in his deposition that he had no personal knowledge of how long Springer's vehicle had been parked on the city street and he further admitted that he did not believe that the van was an abandoned vehicle, but rather that the vehicle was a junk vehicle. Based on these uncontroverted facts, we hold that the District Court correctly concluded that Springer's van was not an abandoned vehicle pursuant to \\u00a7 61-12-401(1), MCA (1991).\\nWe conclude that the record provided to us contains no evidence raising a genuine issue of material fact as to whether Springer's van was a junk or abandoned vehicle. On that basis, we further conclude that Springer was entitled to summary judgment as a matter of law. Accordingly, we affirm the District Court's Order granting Springer summary judgment, wherein the District Court ruled that Springer's van was not a junk vehicle pursuant to \\u00a7 75-10-5,01(4), MCA (1991), and was not an abandoned vehicle pursuant to \\u00a7 61-12-401(1), MCA (1991), and, therefore, concluded that the City did not take reasonable efforts to notify Springer- after his vehicle had been towed, pursuant to \\u00a7 61-12-402, MCA (1991). Consequently, based on this holding, we do not reach Springer's claim that the City was estopped from arguing that Springer's van was an abandoned vehicle.\\n2. Did the District Court abuse its discretion in awarding certain costs to Springer?\\nIn its order granting Springer's motion for summary judgment, the District Court scheduled a jury trial to hear the issue of damages. After this trial, the jury awarded Springer $1,500.00 in damages. Thereafter, pursuant to \\u00a7 25-10-201, MCA, Springer filed a \\\"Bill of Costs\\\" with the District Court in the amount of $1,636.32. Subsequently, the District Court entered judgment awarding Springer $1,500.00 in damages and $1,636.32 in costs.\\nSection 25-10-201, MCA, provides:\\nA party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements, as follows:\\n(1) the legal fees of witnesses, including mileage, or referees and other officers;\\n(2) the expenses of taking depositions;\\n(3) the legal fees for publication when publication is directed;\\n(4) the legal fees paid for filing and recording papers and certified copies thereof necessarily used in the action or on the trial;\\n(5) the legal fees paid stenographers for per diem or for copies;\\n(6) the reasonable expenses of printing papers for a hearing when required by a rule of court;\\n(7) the reasonable expenses of making transcript for the supreme court;\\n(8) the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and\\n(9) such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.\\nWhile the trial court has broad authority in taxing costs, Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 333, 684 R2d 1041, 1048, not every litigation expense is recoverable, Luppold v. Lewis (1977), 172 Mont. 280, 292, 563 P.2d 538, 545. Rather, \\\"[o]nly those costs delineated in \\u00a7 25-10-201, MCA, may be charged to the opposing party unless the item of expense is taken out of \\u00a7 25-10-201, MCA, by a more specialized statute, by stipulation of the parties or by rule of court.\\\" Thayer v. Hicks (1990), 243 Mont. 138, 158, 793 P.2d 784, 796-97 (citing Luppold, 563 P.2d at 545). Here, because neither of the parties argue that the disputed costs are controlled by a more specific statute, stipulation of the parties or a rule of court, \\u00a7 25-10-201, MCA, controls this issue. We review the District Court's award of costs to determine whether the District Court abused its discretion. Gilluly v. Miller (1995), 270 Mont. 272, 274, 891 P.2d 1147, 1148.\\nThe City argues that the District Court abused its discretion when it awarded Springer $1,636.32 because most of the costs identified in Springer's \\\"Bill of Costs\\\" do not fall within \\u00a7 25-10-201, MCA. In fact, the City argues that only $175.00 for filing fees is allowable. First, the City argues that Springer's request for costs of 509 photocopies ($127.25) along with costs for facsimile transmittals ($17.00) and costs for copies of juror questionnaires ($2.10) is not allowable under \\u00a7 25-10-201, MCA. Specifically, the City relies on Thayer, 793 P.2d at 798, to assert that the District Court's discretion should be limited to allowing only the costs incurred in constructing exhibits admitted at trial and that because only two exhibits were used at trial, Springer's request for costs of 509 photocopies is not appropriate. Furthermore, the City argues that costs for facsimile transmittals and copies of juror questionnaires are not necessary litigation expenses, and, therefore, should not be allowed.\\nSpringer responds that all of the photocopy costs were reasonable and necessary expenses allowed for by \\u00a7 25-10-201(9), MCA. Furthermore, Springer asserts that the District Court is in the best position to make a determination of what costs are taxable according to the course and practice of the court. Additionally, Springer suggests that we follow the lead of the federal court system wherein photocopying costs are allowable pursuant to 28 U.S.C. \\u00a7 1920 (1991).\\nNext, the City argues that Springer's request for costs of postage ($27.80) and UPS charges ($11.25) should not be allowed because theses costs also are not necessary litigation expenses pursuant to \\u00a7 25-10-201(9), MCA. Additionally, the City argues that the cost identified as a \\\"Service Fee\\\" ($230.00) should not be allowed because it is not an identified allowable cost, nor is it reasonable or necessary. Furthermore, the City argues that the imposition of long distance telephone charges ($33.67) is erroneous because, in Thayer, this Court held \\\"[telephone charges, however, may not be taxed as costs under any circumstances.\\\" Thayer, 793 P.2d at 798.\\nSpringer responds that this Court should not follow the attempt in Thayer to limit the District Court's discretion in awarding costs, but, rather, we should return to giving the District Court broad discretion under \\u00a7 25-10-201(9), MCA, to determine whether these costs are taxable according to the course and practice of the court. Springer, relying on Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935, further argues that only if we affirm the District Court's award of costs will he be indemnified against the expense of asserting his right to be compensated for the City's wrongdoing in destroying his property.\\nFinally, the City again relies on Thayer and argues that Springer's claim for deposition costs ($454.25) is not allowable because the depositions were not used at trial. Moreover, the City asserts that Springer's request for $558.00 to cover his counsel's mileage expenses for five separate trips from Great Falls to Bozeman is not a statutorily identified allowable cost. Springer responds that while the depositions were not used at trial, they were filed with the court and used by both parties in their motions for summary judg ment, and, therefore, these deposition costs are allowable. Additionally, Springer asserts that his counsel's mileage expenses were allowable because they were reasonable and necessary litigation expenses.\\nWe hold, as a general proposition, that a party ultimately prevailing on summary judgment is entitled to the same allowable costs as if the case had been disposed of at trial. See e.g. Fisher v. State Farm Ins. Cos. (1997), [281 Mont. 236], 934 P.2d 163,164 (explaining that costs for depositions used by the court in a dispositive summary judgment motion are allowable). Consequently, here, because Springer prevailed both on summary judgment and at trial for damages, he is entitled to recover any costs which he incurred in either proceeding, as allowed by \\u00a7 25-10-101 and 25-10-201, MCA. Accordingly, to determine whether the District Court abused its discretion in awarding all of Springer's claimed costs, we will consider the law as it applies to each of the disputed costs in turn.\\nIn Thayer, we limited the broad discretion of the District Court under \\u00a7 25-10-201(9), MCA, by holding that a District Court should allow only those photocopying costs which were incurred in constructing exhibits admitted at trial. Thayer, 793 P.2d at 798. Additionally, as the City correctly argues, we also held in Thayer that \\\"[telephone charges . may not be taxed as costs under any circumstances.\\\" Thayer, 793 P.2d at 798. However, we note that the additional disputed costs for postage, UPS charges and a \\\"Service Fee\\\" are not specifically disallowed by Thayer or by statute, and, therefore, the awarding of these costs is properly left to the broad discretion of the District Court under \\u00a7 25-10-201(9), MCA, to determine whether these costs are \\\"reasonable and necessary expenses . according to the course and practice of the court....\\\"\\nFurthermore, we recently reiterated the rule that deposition costs are recoverable not only for depositions used at trial, but for depositions filed with the district court and used by the court in a dispositive summary judgment motion. Fisher, 934 P.2d at 164, 54 St.Rep. at 152 (citing Roy v. Neibauer (1981), 191 Mont. 224, 227-28, 623 P.2d 555, 557). However, in Thayer, when considering the expenses associated with the audio-visual depositions used, we limited the allowable costs for audio-visual or tape recorded depositions to only those expenses incurred in recording, transcribing and editing the depositions. Thayer, 793 P.2d at 798. We further explained that \\\"airfares, hotel bills, rental car expenses and other incidental costs incurred in obtaining depositions\\\" were not allowable costs. Thayer, 793 P.2d at 798. In the case at bar, it appears that the depositions were recorded stenographically. Despite the different recording method used here, the rule established in Thayer still applies. That is, only those deposition expenses incurred in recording, transcribing and editing the depositions are allowable; any incidental costs incurred are not allowable costs. See Thayer, 793 P.2d at 798.\\nFinally, we note that while \\u00a7 25-10-201(1), MCA, specifically allows for witness mileage, the statute is silent as to whether counsel's mileage is also allowable. Consequently, like the costs for postage, UPS charges, and \\\"service fees,\\\" the award of counsel's mileage costs is left to the broad discretion of the District Court to determine whether these costs are \\\"reasonable and necessary expenses . according to the course and practice of the court .\\\" However, as we explained previously, any part of Springer's counsel's mileage costs incurred when obtaining depositions are considered incidental costs which are not allowed. Thayer, 793 P.2d at 798.\\nBased on the foregoing, we affirm the District Court's award of $175.00 in filing fees because these costs were not disputed. However, we reverse the District Court's award of $33.67 for Springer's long distance telephone calls. Furthermore, we remand with instructions that the District Court determine what costs for photocopies (including the facsimile transmittals and copies for juror questionnaires) were expended on exhibits admitted at trial, and, therefore what photocopying costs are allowable. Additionally, on remand, the District Court must determine if the costs for postage, UPS charges, a \\\"Service Fee,\\\" and counsel's mileage are allowable pursuant to \\u00a7 25-10-201(9), MCA. Finally, on remand, the District Court must determine whether it relied on the depositions of Springer, Bill McManis, James L. Conner and Jason Becker when it granted Springer summary judgment. Moreover, the District Court must determine what portion of the deposition expenses were incurred in recording, transcribing and editing the depositions, and, therefore, what deposition costs are allowable.\\n3. Did the District Court abuse its discretion in failing to award Springer attorney fees and costs pursuant to Rule 37(c), M.R.Civ.P., for proving requests for admissions that the City denied?\\nOn October 6,1995, Springer served the City with Interrogatories, Requests for Production and Requests for Admission, to which the City responded. On October 18, 1995, Springer served the City with Amended Requests for Admission, to which the City again responded. Springer asserts that the City denied Requests for Admission Nos. 9, 11, 12, and 22, which Springer later proved to be true through deposition testimony and which the District Court accepted as uncontroverted facts in granting Springer summary judgment. As a result, Springer asserts that he incurred attorney fees and costs. Springer explains that he filed an Affidavit of Attorney Fees in the amount of $2,187.00 pursuant to Rule 37(c), M.R.Civ.P., but did not list any costs with this Affidavit because he had previously submitted his \\\"Bill of Costs\\\" to the District Court pursuant to \\u00a7 25-10-201, MCA. Consequently, on cross appeal, Springer contends that he is entitled to attorney fees under Rule 37(c), M.R.Civ.P. The City responds that Springer is not entitled to attorney fees because the City properly responded to all of Springer's Requests for Admission.\\nRule 37(c), M.R.Civ.P., provides:\\nIf a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (4) there was other good reason for the failure to admit.\\nSpringer argues that he proved the truth of the following requests for admission through deposition testimony:\\nREQUEST FOR ADMISSION NO. 9: Admit that document 1 is a notice of abandoned vehicle that was placed on plaintiff's 1968 Volkswagen van on September 24, 1992.\\nRESPONSE: Deny.\\nREQUEST FOR ADMISSION NO. 11: Admit that the notice of abandoned vehicle contains a tow date of September 25, 1992.\\nRESPONSE: It would appear that Document #1 which was attached to Plaintiff's amended Request for Admission contains a handwritten entry, the author of which is unknown, of \\\"tow date of 09/25/92.\\\"\\nREQUEST FOR ADMISSION NO. 12: Admit that Officer Jason Becker or any other Bozeman City Police Officer did not notify Plaintiff before having his vehicle towed.\\nRESPONSE: Deny.\\nREQUEST FOR ADMISSION NO. 22: Admit that on September 28, 1992, Plaintiff's 1968 Volkswagen van was capable of being driven.\\nRESPONSE: Deny.\\nUpon review of the District Court record, it does not appear that the District Court addressed Springer's request for attorney fees pursuant to Rule 37(c), M.R.Civ.R, in its findings of fact and conclusions of law entered June 26, 1996, or in any other separate order.\\nNevertheless, after reviewing the deposition testimony taken by Springer and filed with the District Court, we conclude as a matter of law that Springer proved the truth of Requests for Admission Nos. 9, 12 and 22, which Bozeman denied. Specifically, McManis testified in his deposition that he placed a Notice of Abandoned Vehicle on Springer's van on September 24,1992 (see Request for Admission No. 9). Further, McManis testified that he did not send Springer a certified letter notifying him that his van had been towed but rather only attempted to contact Springer by telephone (see Request for Admission No. 12). Finally, McManis testified that prior to having Springer's van towed, he did not know if the van was capable of being driven or operated, whereas, Springer's undisputed deposition testimony explains that he drove his van to the opposite side of the street before Bozeman towed and destroyed it (see Request for Admission No. 22). Furthermore, we conclude as a matter of law that none of the exceptions of Rule 37(c), M.R.Civ.R, preclude the District Court from awarding Springer reasonable attorney fees.\\nHowever, we disagree with Springer that Bozeman's response to Request for Admission No. 11 constitutes a denial. Rather, we conclude that Bozeman's response was an admission, and, therefore, Springer is not entitled to reasonable expenses or attorney fees under Rule 37(c), M.R.Civ.P., for proving the truth of Request for Admission No. 11.\\nConsequently, we hold that the District Court abused its discretion when it failed to award Springer attorney fees for proving the truth of Requests for Admission Nos. 9,12 and 22, which Bozeman denied. Accordingly, we remand this issue to the District Court for calculation of the amount of reasonable attorney fees to which Springer is entitled and entry of an appropriate order.\\nIn conclusion, we affirm the District Court's Order granting Springer summary judgment. However, we reverse that part of the District Court's July 11, 1996 Judgment awarding Springer costs for long distance telephone calls. Additionally, we remand for recomputation the issue of whether the remaining disputed costs awarded to Springer in the District Court's July 11,1996 Judgment are allowable costs under \\u00a7 25-10-201, MCA. Finally, we remand for calculation of the amount of attorney fees to which Springer is entitled pursuant to Rule 37(c), M.R.Civ.P.\\nAffirmed in part, reversed in part and remanded for further proceedings consistent with this Opinion.\\nCHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.\\n. We note, as did the dissent, that while Bozeman's memorandum in opposition to Springer's request for attorney fees under Rule 37(c), M.R.Civ.R, is contained in the District Court record on appeal, Springer's Affidavit of Attorney fees could not be located in the record (although a copy, without a file stamp, is attached to Springer's brief on appeal). Given that Bozeman's response to Springer's Affidavit is included in the record and, further, because Bozeman has not raised on appeal any failure of Springer to actually file his Affidavit, we will assume for purposes of our decision here that the Affidavit was filed but was not included in the record on appeal by mistake or inadvertence.\\nCounsel are reminded, however, that it is their obligation to insure that the record on appeal is complete and accurate. In this regard, it will assist counsel in fulfilling this obligation and this Court in verifying the completeness and accuracy of the record if copies of documents from the record which are attached to the briefs as appendices include, if possible, a copy of the clerk of court's original file stamp.\"}"

mont/1457716.json

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+"{\"id\": \"1457716\", \"name\": \"ELMER L. COWAN, M. PAULINE COWAN and TWILA M. SMITH, Plaintiffs and Appellants, v. KATHY C. COWAN, a/k/a KATHY COUCHOIS and DAN and KELLEY FLOYD, Defendants and Respondents\", \"name_abbreviation\": \"Cowan v. Cowan\", \"decision_date\": \"2004-04-20\", \"docket_number\": \"No. 03-164\", \"first_page\": \"13\", \"last_page\": \"20\", \"citations\": \"321 Mont. 13\", \"volume\": \"321\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:19:24.332383+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE GRAY, JUSTICE WARNER, COTTER and REGNIER concur.\", \"parties\": \"ELMER L. COWAN, M. PAULINE COWAN and TWILA M. SMITH, Plaintiffs and Appellants, v. KATHY C. COWAN, a/k/a KATHY COUCHOIS and DAN and KELLEY FLOYD, Defendants and Respondents.\", \"head_matter\": \"ELMER L. COWAN, M. PAULINE COWAN and TWILA M. SMITH, Plaintiffs and Appellants, v. KATHY C. COWAN, a/k/a KATHY COUCHOIS and DAN and KELLEY FLOYD, Defendants and Respondents.\\nNo. 03-164.\\nSubmitted on Briefs July 10, 2003.\\nDecided April 20, 2004.\\n2004 MT 97.\\n89 P.3d 6.\\n321 Mont. 13.\\nFor Appellants: G. Patrick Hagestad and Perry J. Schneider, Milodragovich, Dale, Steinbrenner & Binney, Missoula.\\nFor Respondents: Evonne Smith Wells, Attorney at Law, Missoula (K. Cowan); David T. Markette, Attorney at Law, Hamilton (Floyds).\", \"word_count\": \"2627\", \"char_count\": \"15984\", \"text\": \"JUSTICE LEAPHART\\ndelivered the Opinion of the Court.\\n\\u00b61 The issue on appeal is whether the District Court's dismissal of the Cowans' and Twila's complaint was incorrect as a matter of law? We affirm.\\nFactual and Procedural Background\\n\\u00b62 Elmer and Pauline Cowan (the Cowans) are the parents of Twila Smith (Twila) and Arden Cowan (Arden). Arden was married to Kathy Cowan (Kathy). Kathy and Arden separated in 2000 and eventually divorced after approximately eleven years of marriage. The Cowans contend that they transferred certain property to Kathy as trustee for the care of their son Arden who is disabled from polio. The District Court dismissed their complaint in which they challenged Kathy's ownership and proposed sale of the property to Dan and Kelley Floyd (the Floyds).\\n\\u00b63 In the dissolution proceedings, the court (Judge Larson) awarded Kathy the land at issue, approximately 170 acres located in Ravalli County. Judge Larson decided that the parties' antenuptial agreement was not enforceable because there was no meeting of minds regarding what the agreement meant. Noting that Arden had attempted to insulate the property from the child support dispute he was having with his former wife by disclaiming any interest in the property, the court cited the equitable principle of unclean hands and the doctrine of judicial estoppel and concluded that he was estopped from subsequently claiming an interest in that same property. Kauffman-Harmon v. Kauffman, 2001 MT 238, 307 Mont. 45, 36 P.3d 408. Judge Larson observed that to give validity to such a scheme would violate the public policy of encouraging and facilitating child support payments. Since Arden's parents had gifted the property to Kathy during the marriage, the court awarded the property to Kathy.\\n\\u00b64 Subsequent to the dissolution proceedings, the Cowans filed a complaint for declaratory relief, seeking to have the District Court determine the Cowans' and Twila's ownership rights in the property and whether an express, constructive, or resulting trust existed. They also requested a temporary restraining order prohibiting the sale of the property until the court issued a declaratory judgment. Attached to their complaint for declaratory relief were a warranty deed, a document describing the property, Kathy's will (dated March 9,1991), a document Kathy signed granting Arden general power of attorney, a handwritten, undated document signed by the Cowans that stated the Cowans were transferring property to Kathy for Arden's support and maintenance, and the Findings of Fact and Conclusions of Law and Decree of Dissolution of Arden's and Kathy's marriage.\\n\\u00b65 When Judge Larson did not act to prohibit the sale, the Floyds purchased the property from Kathy. The sale was completed, and the Floyds are now the record owners of the property. Kathy and the Floyds both moved to dismiss the Cowans' complaint for declaratory judgment and preliminary injunctive relief. The court (Judge McLean) granted the Floyds' motion to dismiss because they had purchased the property under the protection of a court order after this Court declined to issue a writ of supervisory control stopping the sale. The District Court also stated that the Cowans' and Twila's request for a temporary restraining order and preliminary injunction was moot because the sale to the Floyds was completed under Judge Larson's direction in the dissolution proceeding. Kathy's motion for dismissal was similarly granted because the court determined, based upon the complaint, the answer, and the attached documents, that neither the Cowans nor Twila had any enforceable ownership interests in the property at issue.\\n\\u00b66 The court examined the complaint and attached documents and determined that the deed to Kathy contained no restrictions or conditions granting Twila an ownership interest. Similarly, the court concluded that when the Cowans deeded the property to Kathy, they did not reserve any ownership interest to themselves. The court concluded that the Cowans and Twila had no enforceable legal ownership interests in their own right to the disputed property. Any rights that they arguably had were dependent upon Arden's equitable interest which was duly adjudicated in the dissolution action. The court noted that the property distribution in the dissolution proceeding could be challenged on appeal in that matter but could not \\\"be relitigated in this action under the guise that the [Cowans and Twila] have separate and distinct legally enforceable ownership interests in the property.\\\" The court awarded the Floyds and Kathy statutory costs of suit and denied their request for attorneys' fees. We recently affirmed the order in the dissolution proceeding in Cowan v. Cowan, 2004 MT 68, 320 Mont. 332, 87 P.3d 443.\\n\\u00b67 On appeal, the Cowans and Twila contend the court's dismissal of their complaint was incorrect as a matter of law. They claim to have alleged facts sufficient to support a finding that the Cowans were trustors of a trust created for Arden's benefit and that Twila is a successor trustee and/or beneficiary of the trust. They contend that, based on these alleged facts, they stated a claim for declaratory judgment as to the existence of a trust. They assert that their property interests are separate and distinct from Arden's rights in the property. They also point out that Arden is not a party to this current action.\\n\\u00b68 The Cowans and Twila claim it was error for the District Court to make a factual determination that the handwritten document the Cowans executed was insufficient to create a legally enforceable ownership in the property. The Cowans and Twila allege that the court failed to apply the appropriate standard for reviewing a motion to dismiss because it did not take all factual allegations as true. They contend that if all their allegations are taken as true and all facts viewed in the light most favorable to them, they clearly set forth facts sufficient to establish that the property was held in trust and therefore the proceeds from the sale of the property should likewise be held in trust for Arden's benefit.\\nDiscussion\\n\\u00b69 Whether the District Court's dismissal of the Cowans' and Twila's complaint was incorrect as a matter of law?\\n\\u00b610 We review a district court's ruling on a motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., de novo. Powell v. Salvation Army (1997), 287 Mont. 99, 102, 951 P.2d 1352, 1354. \\\"This Court reviews an appeal from a district court's order granting a motion to dismiss based on the sufficiency of the complaint.\\\" Powell, 287 Mont. at 102, 951 P.2d at 1354 (citation omitted). The determination that a complaint fails to state a claim is a conclusion of law that we review to determine whether the court's interpretation of the law is correct. City of Cut Bank v. Tom Patrick Const., Inc., 1998 MT 219, \\u00b6 6, 290 Mont. 470, \\u00b6 6, 963 P.2d 1283, \\u00b6 6. We have previously stated that\\n[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Amotion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.\\nPowell, 287 Mont. at 102, 951 P.2d at 1354 (citation omitted).\\n\\u00b611 The only relevant document when considering a motion to dismiss is the complaint and any documents it incorporates by reference. City of Cut Bank, \\u00b6 20. The mere fact that documents are attached to a complaint does not automatically require that the motion to dismiss be converted into a Rule 56 motion for summary judgment. City of Cut Bank, \\u00b6 20. We have previously upheld a Rule 12(b)(6) motion to dismiss when the trial court based its decision upon a complaint and information contained in attached documents. City of Cut Bank, \\u00b6 20 (the court considered the complaint as well as the attached contract documents).\\n\\u00b612 The Cowans allege that the District Court considered matters outside the pleadings and thus the court should have given notice to the parties that the motion was being converted to a Rule 56 motion for summary judgment with all sides afforded an opportunity to fully brief the issues as such.\\n\\u00b613 We find no indication that the court considered matters outside the record. City of Cut Bank, \\u00b6 20. We accept at face value the court's order that it was ruling on motions to dismiss and that the court's order was based upon the allegations in the complaint and based on the information in the attached documents. City of Cut Bank, \\u00b6 20.\\n\\u00b614 The Cowans allege if all facts they have alleged are taken as true, they clearly stated a claim entitling them to relief and the court erred in dismissing their complaint. However, the Cowans are incorrect as to what the court must take as true. Facts must be viewed in a light most favorable to the plaintiff, however, the court is under no duty to take as true legal conclusions or allegations that have no factual basis or are contrary to what has already been adjudicated. Powell, 287 Mont. at 102, 951 P.2d at 1354. In the dissolution matter, Judge Larson noted that Arden had repeatedly and previously testified that he had no interest in the properties; thus the court concluded that Arden's claim of a beneficial interest in the property via a constructive trust must fail as Arden had unclean hands and was barred by judicial estoppel.\\n\\u00b615 \\\"The fundamental purpose of judicial estoppel is to protect the integrity of the judicial system and thus to estop a party from playing 'fast and loose' with the court system.\\\" Kauffman-Harmon v. Kauffman, 2001 MT 238, \\u00b6 15, 307 Mont. 45, \\u00b6 15, 36 P.3d 408, \\u00b6 15. \\\"[T]he doctrine of judicial estoppel binds a party to his or her judicial declarations, and precludes a party from taking a position inconsistent with previously made declarations in a subsequent action or proceeding.\\\" Kauffman-Harmon, \\u00b6 15. In Kauffman-Harmon, we examined the doctrine of judicial estoppel as it applies to resulting and constructive trusts. In that case, we determined that when Dr. Kauffman claimed in a previous legal action that he had no interest in certain assets that he had transferred to a corporation, he was barred from claiming an interest in the assets in a subsequent proceeding. Kauffman-Harmon, \\u00b6 17.\\n\\u00b616 The court also determined that the equitable doctrine of unclean hands barred Arden's interest in the property. This doctrine \\\"provides that 'parties must not expect relief in equity, unless they come into court with clean hands.' \\\" Kauffman-Harmon, \\u00b6 19. Under this doctrine, we have stated that we \\\"will not aid one who has caused title to his or her property to be transferred to another for the purpose of defrauding creditors.\\\" Kauffman-Harmon, \\u00b6 22.\\n\\u00b617 In ruling on the motions to dismiss the Cowans' and Twila's complaint, Judge McLean was not bound to assume (as alleged in the complaint) that the property was held in trust for Arden's benefit. We have reviewed the sufficiency of the complaint including the attached documents. Powell, 287 Mont. at 102, 951 P.2d at 1354. We determine that the court's interpretation of the law is correct. City of Cut Bank, \\u00b6 6. The District Court correctly applied the applicable standard for ruling on a motion to dismiss. Powell, 287 Mont. at 102, 951 P.2d at 1354. The record supports the court's determination that Arden's interest in the property had already been adjudicated and that judgment, in turn, extinguished any derivative claim that his parents and sister may have had. The complaint and the attached documents support the court's granting of the motions to dismiss. City of Cut Bank, \\u00b6 20. We affirm.\\nCHIEF JUSTICE GRAY, JUSTICE WARNER, COTTER and REGNIER concur.\"}"

mont/1471492.json

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+"{\"id\": \"1471492\", \"name\": \"GORDON SELLNER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent\", \"name_abbreviation\": \"Sellner v. State\", \"decision_date\": \"2004-08-03\", \"docket_number\": \"No. 03-053\", \"first_page\": \"310\", \"last_page\": \"323\", \"citations\": \"322 Mont. 310\", \"volume\": \"322\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:59:22.711532+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES REGNIER and LEAPHART concur.\", \"parties\": \"GORDON SELLNER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.\", \"head_matter\": \"GORDON SELLNER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.\\nNo. 03-053.\\nSubmitted on Briefs October 2, 2003.\\nDecided August 3, 2004.\\n2004 MT 205.\\n322 Mont. 310.\\n95 P.3d 708.\\nFor Appellant: William F. Hooks, Attorney at Law, Helena.\\nFor Respondent: Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena; Robert Long, Lake County Attorney; Mitchell A. Young, Deputy County Attorney, Poison.\", \"word_count\": \"4822\", \"char_count\": \"29903\", \"text\": \"JUSTICE RICE\\ndelivered the Opinion of the Court.\\n\\u00b61 Gordon Sellner (Sellner) appeals from the order filed on September 5, 2002, in the Twentieth Judicial District Court, Lake County, denying his petition for postconviction relief. We affirm the District Court's order.\\n\\u00b62 The following issues are presented on appeal:\\n\\u00b63 1. Was the appellant's amended petition for postconviction relief barred by the one-year statute of limitations?\\n\\u00b64 2. Did the appellant's trial counsel render ineffective assistance of counsel?\\na. Did the appellant's trial counsel render deficient performance by failing to investigate and present a case for justifiable use of force?\\nb. Did the appellant's trial counsel render deficient performance by abandoning the attempted mitigated deliberate homicide defense?\\nc. Did the appellant's trial counsel render deficient performance by pursuing a defense based upon the civil suit against the appellant?\\nd. Did the appellant's trial counsel render deficient performance by failing to offer a \\\"failure to agree\\\" instruction?\\ne. Did the appellant's trial counsel render deficient performance by making \\\"other errors\\\"?\\n\\u00b65 3. Was the appellant prejudiced by his trial counsel's performance?\\nBACKGROUND\\n\\u00b66 We previously discussed the events underlying this case when we considered it on direct appeal in State v. Sellner (1997), 286 Mont. 397, 951 P.2d 996. We recount only those facts necessary for context and those from the postconviction proceeding below that are relevant here.\\n\\u00b67 Sellner deliberately shot Missoula County Deputy Sheriff Robert Parcell (Parcell) in the chest on June 27,1992, as he was fleeing from Parcell. Parcell survived. Just before his arrest three years later, Sellner fired a gun into the woods where law enforcement officers were stationed. On September 13, 1996, a jury convicted Sellner of attempted deliberate homicide for shooting Parcell but acquitted him of criminal endangerment for firing into the woods near officers. This Court affirmed the conviction on December 29, 1997.\\n\\u00b68 On November 5, 1998, Sellner filed a petition for postconviction relief in the District Court. With leave of the court, he filed an amended petition on January 17, 2001, alleging ineffective assistance of counsel. The District Court denied the amended petition on September 5, 2002. Sellner now appeals.\\n\\u00b69 For purposes of brevity, further relevant facts will be discussed in each section below.\\nSTANDARD OF REVIEW\\n\\u00b610 This Court reviews a district court's denial of a postconviction relief petition to determine whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Turner, 2000 MT 270, \\u00b6 47, 302 Mont. 69, \\u00b6 47, 12 P.3d 934, \\u00b6 47. \\\"Claims of ineffective assistance of counsel, however, are mixed questions of law and fact.\\\" Turner, \\u00b6 47 (citing Strickland v. Washington (1984), 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674, 700 (\\\"both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact\\\")). Therefore, our review is de novo. Turner, \\u00b6 47.\\nDISCUSSION\\n\\u00b611 1. Was the appellant's amended petition for postconviction relief barred by the one-year statute of limitations?\\n\\u00b612 The State argues that Sellner was prohibited from amending his petition more than two years after he filed his original petition even though his original petition was timely. The State relies on Maier v. State, 2003 MT 144, 316 Mont. 181, 69 P.3d 1194, in which we held an amended petition for postconviction relief was untimely because it was not filed within one year of either the date that the conviction became final or the date new evidence was discovered. Maier, \\u00b6 16.\\n\\u00b613 In Maier, we interpreted \\u00a7 46-21-105(l)(a), MCA (1999), and 46-21-102(2), MCA (1999), in conjunction, as they applied to the time allowed to file an amended petition after discovering new exculpatory evidence. The statutes read, in relevant part, as follows:\\n46-21-102. When petition may be filed. (1) Except as provided in subsection (2), a petition for the relief referred to in 46-21-101 may be filed at any time within 1 year of the date that the conviction becomes final.\\n(2) A claim that alleges the existence of newly discovered evidence that, if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted, may be raised in a petition filed within 1 year of the date on which the conviction becomes final or the date on which the petitioner discovers, or reasonably should have discovered, the existence of the evidence, whichever is later.\\n46-21-105. Amendment of petition-waiver of grounds for relief. (1) (a) All grounds for relief claimed by a petitioner under 46-21-101 must be raised in the original or amended original petition. The original petition may be amended only once. At the request of the state or on its own motion, the court shall set a deadline for the filing of an amended original petition. If a hearing will be held, the deadline must be reasonably in advance of the hearing but may not be less than 30 days prior to the date of the hearing.\\n\\u00b614 The appellant in Maier filed his amended petition over one year after his conviction became final and over two years after the date that he supposedly discovered new evidence. Maier, \\u00b6 19. We found that, in order to prevent the new evidence time limitation in \\u00a7 46-21-102(2), MCA, from becoming meaningless, the one-time amendment provision in \\u00a7 46-2 l-105(l)(a), MCA, must be qualified such that the amendment must occur within one year of the later of finalization of the conviction or the discovery of new evidence. Maier, \\u00b6 16.\\n\\u00b615 The State invites us to read a similar conjunction into \\u00a7 46-21-102(1), MCA, and \\u00a7 46-21-105(l)(a), MCA, requiring all original petitions and amendments to be filed within one year of the conviction becoming final. Such a reading would procedurally bar Sellner's amended petition.\\n\\u00b616 We decline the invitation. To read the statutes as the State suggests would obviate the third sentence of \\u00a7 46-21-105(l)(a), MCA, which permits the court discretion in setting a deadline for filing an amended petition. We do not suppose that the legislature intended to give the court discretion to set only a deadline that occurs before the expiration of the year from the time the conviction becomes final. Rather, the plain language of the statute suggests that the court may set deadlines as it sees fit, as long as this discretion is not abused or is not subject to the new evidence limitation set forth in \\u00a7 46-21-102(2), MCA. Therefore, Sellner was not procedurally barred from filing his amended petition.\\n\\u00b617 2. Did the appellant's trial counsel render ineffective assistance of counsel?\\n\\u00b618 The right to counsel in criminal prosecutions is guaranteed by the Due Process clause of the Fourteenth Amendment; the Sixth Amendment; and the Montana Constitution, Article II, Section 24. Ineffective counsel may impinge the fundamental fairness of the proceeding being challenged. State v. Henderson, 2004 MT 173, \\u00b6 4, 322 Mont. 69, \\u00b6 4, 93 P.3d 1231, \\u00b6 4. In measuring ineffective assistance of counsel claims, this Court has adopted the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Turnsplenty, 2003 MT 159, \\u00b6 14, 316 Mont. 275, \\u00b6 14, 70 P.3d 1234, \\u00b6 14.\\nFirst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \\\"counsel\\\" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.\\nStrickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. \\\"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.\\\" Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.\\n\\u00b619 a. Did the appellant's trial counsel render deficient performance by failing to investigate and present a case for justifiable use of force?\\n\\u00b620 John DeCamp (DeCamp), a Nebraska attorney, served as Sellner's lead attorney throughout his trial. Catharine Sapp (Sapp) and Hyle Erwin (Erwin) were among those that served as co-counsel, though Sapp eventually withdrew from her representation of Sellner. On January 3, 1996, Sapp requested Deputy Parcell's personnel records from Missoula County. The county attorney denied the request but informed her that the files contained nothing exculpatory. On August 5, 1996, Erwin interviewed Parcell. The court permitted defense counsel to examine Parcell's files on the third day of trial, but the next day they informed the court that they did not intend to use any portion of the file. During the trial, Sellner's counsel relied on the affirmative defense of justifiable use of force, arguing that Parcell was the aggressor in the exchange between Sellner and Parcell. For this affirmative defense, counsel called as witnesses Dr. John Van Hassel and Dr. Virginia Hill, who both testified that Sellner feared for his life when he fired at Parcell.\\n\\u00b621 Sections 45-3-102, MCA (1991), and 45-3-105, MCA (1991), describe when the use of force is justifiable:\\n45-3-102. Use of force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony.\\n45-3-105. Use of force by aggressor. The justification described in 45-3-102 through 45-3-104 is not available to a person who:\\n(1) is attempting to commit, committing, or escaping after the commission of a forcible felony; or\\n(2) purposely or knowingly provokes the use of force against himself, unless:\\n(a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or\\n(b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force.\\n\\u00b622 Sellner argues that the justifiable use of force defense was not viable because DeCamp did not review Parcell's files for information that could possibly portray him as the aggressor until after the commencement of trial. Sellner contends that this was a failure to investigate the case properly and that, together with his inability to cite to any other evidence that Parcell was the aggressor, it demonstrates DeCamp's deficient performance.\\n\\u00b623 Sellner's argument fails. His defense counsel investigated Parcell on at least three occasions-by requesting personnel files that the county attorney found devoid of exculpatory material, by interviewing him, and by reviewing his files during trial-and each time found nothing to inculpate Parcell as the aggressor. Moreover, Sellner's counsel presented witnesses tending to show Sellner acted in fear and in self-defense, thereby supporting a defense consistent with the requirements of \\u00a7 45-3-102, MCA. The jury was simply unconvinced. Accordingly, we do not find deficiency in the performance of Sellner's counsel with respect to the investigation of Parcell and the use of the justifiable homicide defense.\\n\\u00b624 b. Did the appellant's trial counsel render deficient performance by abandoning the attempted mitigated deliberate homicide defense?\\n\\u00b625 Drs. Van Hassel and Hill testified that Sellner feared for his life when he shot Parcell. Though he did not discuss his plan with these witnesses, DeCamp told Sellner prior to trial that he would be able to present a defense of attempted mitigated deliberate homicide based on the testimony of Van Hassel and Hill. During witness examination and closing argument, DeCamp repeatedly emphasized that Sellner feared for his life when he fired at Parcell. Prior to closing arguments, Sellner's defense counsel offered jury instructions regarding attempted mitigated deliberate homicide, which the court gave.\\n\\u00b626 Section 45-5-103, MCA (1991), defines mitigated deliberate homicide:\\nMitigated deliberate homicide. (1) A person commits the offense of mitigated deliberate homicide when he purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the actor's situation.\\n(2) It is an affirmative defense that the defendant acted under the influence of extreme mental or emotional stress for which there was reasonable explanation or excuse, the reasonableness of which shall be determined from the viewpoint of a reasonable person in the actor's situation. This defense constitutes a mitigating circumstance reducing deliberate homicide to mitigated deliberate homicide and must be proved by the defendant by a preponderance of the evidence.\\n\\u00b627 Sellner argues that his counsel abandoned attempted mitigated deliberate homicide as a defense to the attempted deliberate homicide charge. In support of his contention, Sellner offers the following: (1) DeCamp failed to discuss attempted mitigated deliberate homicide in his opening statement; (2) Van Hassel and Hill were expert witnesses for the defense of justifiable use of force, not attempted mitigated deliberate homicide; (3) counsel failed to discuss the defense with Van Hassel prior to his testimony; and (4) counsel emphasized self-defense to the jury and ignored attempted mitigated deliberate homicide in his closing argument.\\n\\u00b628 Again, Sellner's argument fails. DeCamp believed the testimony provided by the doctors would provide a basis for an attempted mitigated deliberate homicide defense, and he discussed this with Sellner. Counsel argued to the jury that Sellner acted under the \\\"very reasonable and real perception on his part of the reality as he saw it, that his life was in imminent danger and he was saving himself.\\\" In addition, counsel submitted jury instructions regarding the defense. The combination of these factors defeats Sellner's contention that the defense was abandoned. Accordingly, we hold that counsel's performance was not deficient with respect to the attempted mitigated deliberate homicide defense.\\n\\u00b629 c. Did the appellant's trial counsel render deficient performance by pursuing a defense based upon the civil suit against the appellant?\\n\\u00b630 On June 22,1995, after the shooting but while Sellner was still at large, Parcell filed a civil lawsuit against Sellner alleging negligence causing bodily injury and infliction of emotional distress. The State called Parcell as a witness at trial, and DeCamp cross-examined him. Parcell stated that he thought Sellner shot him intentionally. DeCamp asked Parcell several questions regarding the civil suit, intimating that it was inconsistent for Parcell to state in the criminal trial that Sellner shot him intentionally while claiming in the civil suit that Sellner shot him negligently. DeCamp asked Parcell if he was willing to lie in order to be able to file a civil suit. Parcell replied that his only viable civil claim was one of negligence. Later, when the defense recalled Parcell, he said that the statute of limitations had run for a \\\"willful\\\" tort action and that he had no choice but to claim negligence.\\n\\u00b631 During trial, Parcell and Sellner gave different accounts of the events on the night of the shooting. Parcell claimed that when he saw Sellner running away from him, he said, \\\"We just want to talk to you.\\\" In contrast, Sellner claimed that the officer had threatened to shoot him.\\n\\u00b632 In closing argument, DeCamp emphasized the nature of the negligence action filed by Parcell and suggested that Parcell thought Sellner's counsel would not find out about the lawsuit. After trial, DeCamp believed the best avenue to get a retrial would be to depose Parcell and catch him contradicting his trial testimony.\\n\\u00b633 Sellner argues that his counsel's attempt to discredit Parcell by contrasting the nature of the civil suit with the criminal proceeding was pointless. Sellner maintains that accusing Parcell of lying in this manner conflicted with the affirmative defenses counsel posited. Those defenses required that Sellner act intentionally, and Sellner testified that he did so. Therefore, Sellner argues, his counsel's attempted impeachment of Parcell was spurious, and the District Court erred by concluding that it was permissible to attempt to persuade a lay jury that there was conflict between the civil claim and the criminal charge.\\n\\u00b634 We disagree. Demonstrating that Parcell was a liar could have convinced the jury that Sellner's version of events on the night of the shooting was more credible. Defense counsel may attempt to impeach witnesses, even when those attempts are tenuous. See Rules 607 and 608, M.R.Evid. Accordingly, we find no deficiency in counsel's performance with respect to the defense based upon the civil suit against Sellner and no error by the District Court in permitting defense counsel to pursue this strategy.\\n\\u00b635 cl. Did the appellant's trial counsel render deficient performance by failing to offer a \\\"failure to agree\\\" instruction1\\n\\u00b636 Jury Instruction Number 9 stated as follows:\\nThe defendant is charged in Count I with Attempt (Deliberate Homicide). Attempt (Mitigated Deliberate Homicide) is a lesser included offense of Attempt (Deliberate Homicide). The defendant cannot be convicted of both offenses.\\nIn your deliberations you should consider the charge of Attempt (Deliberate Homicide) first, and that all twelve of you find the defendant either guilty or not guilty of that charge.\\nIn the event you find the defendant guilty of Attempt (Deliberate Homicide), you need go no further as you will have reached a verdict on that count.\\nIn the event you find the Defendant not guilty of Attempt (Deliberate Homicide), you must then consider the lesser included offense of Attempt (Mitigated Deliberate Homicide). You must then find the Defendant guilty or not guilty of this charge.\\n\\u00b637 Sellner asserts that, in the event we find his counsel did not abandon the attempted mitigated homicide defense, his counsel rendered ineffective assistance by failing to offer a \\\"failure to agree\\\" instruction to the jury in addition to Instruction Number 9. In support of his argument, Sellner cites State v. Rogers, 2001 MT 165, 306 Mont. 130, 32 P.3d 724, where this Court, on appeal from postconviction relief proceedings, held defense counsel should offer a \\\"failure to agree\\\" instruction unless there is a tactical reason for not doing so. Rogers, \\u00b6 21.\\n\\u00b638 Sellner maintains that in the absence of evidence that his counsel made any kind of tactical decision with regard to offering the instruction, the dearth of evidence on the point should be seen in light of State v. Jefferson, 2003 MT 90, 315 Mont. 146, 69 P.3d 641, and State v. Rose, 1998 MT 342, 292 Mont. 350, 972 P.2d 321. Sellner points out that in the circumstances of both Jefferson and Rose the insufficiency of the record did not prevent this Court from holding counsel's conduct fell below the range of reasonable professional assistance, and he encourages us to do the same here.\\n\\u00b639 Sellner adds that this Court, in State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, held that counsel rendered ineffective assistance, though nothing in the record explained counsel's actions. Sellner reasons that there could be no tactical reason for his counsel to have failed to submit a \\\"failure to agree\\\" instruction because Sellner had nothing to lose by having the jury consider the lesser included offense if they failed to agree on the higher offense.\\n\\u00b640 Finally, Sellner posits that he met his burden of showing that his counsel's acts were not the result of reasonable professional judgment, especially considering that the State failed to present evidence to the contrary.\\n\\u00b641 Section 46-16-607, MCA (1991), addresses when ajury can convict on a lesser included offense:\\nConviction of lesser included offense. (1) The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included in the offense charged.\\n(2) A lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.\\n(3) When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense. Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense.\\n\\u00b642 In State v. Hubbel, 2001 MT 31, 304 Mont. 184, 20 P.3d 111 (overruled on other grounds by State v. Hendricks, 2003 MT 223, 317 Mont. 177, 75 P.3d 1268), the defendant was convicted of aggravated assault for shooting his wife. Defense counsel offered an \\\"acquittal first\\\" jury instruction similar to what Sellner's counsel offered here. Hubbell, \\u00b6 12. On direct appeal, we held that in the face of the strong presumption that counsel acted reasonably, and with no evidence to the contrary, the appellant \\\"failed to meet his burden of demonstrating that counsel was ineffective without offering any explanation as to why, whether for tactical reasons or not, defense counsel failed to offer the failure to agree instruction but, instead, offered an 'acquittal test' instruction.\\\" Hubbell, \\u00b6 21.\\n\\u00b643 Sixmonths after Hubbel, we decided Rogers. There, the defendant was convicted of felony assault, and he brought a motion for postconviction relief. The District Court found that defense counsel's failure to request a \\\"failure to agree\\\" jury instruction did not constitute ineffective assistance of counsel, but this Court disagreed. In so doing, we relied on defense counsel's testimony that he knew that he was allowed to offer the \\\"failure to agree\\\" instruction provided for in \\u00a7 46-16-607(3), MCA, but that he did not make a conscious choice not to do so. Rogers, \\u00b6 12-13.\\n\\u00b644 Jefferson concerned a defendant charged with attempted deliberate homicide who withdrew from his agreement to plead guilty to felony assault in order to have the opportunity to be acquitted or to be convicted of a less serious offense. However, at trial, his counsel admitted guilt to felony assault. On direct appeal, the Court found that there could be no possible tactical reason for counsel to contravene directly the defendant's purpose in withdrawing his plea, even though the record was silent. Jefferson, \\u00b6 50.\\n\\u00b645 Rose considered a defendant charged with accountability for an aggravated burglary. Rose's accomplice had pled guilty to the burglary, but he accused Rose of planning the crime. Defense counsel failed to offer an instruction to the jury which provided that the \\\"testimony of a person legally accountable for the acts of the accused ought to be viewed with distrust.\\\" Rose, \\u00b6 13 (citation omitted). The Court concluded on direct appeal that, despite a lack of evidence on the subject, there was \\\"no reasonable tactical or strategic reason for failing to provide an instruction on the jury's consideration of an accomplice's testimony .''Rose, \\u00b6 18.\\n\\u00b646 Sellner's argument is unpersuasive. First, State v. Herrman, 2003 MT 149, 316 Mont. 198, 70 P.3d 738, overruled Chastain to the extent that it had held certain ineffective assistance of counsel claims could be reviewed on appeal based upon a silent record. Herrman, \\u00b6 33. Further, Hubbel controls under the circumstances here. In Rogers, evidence showing that counsel did not make a reasoned judgment regarding the jury instruction sufficed to rebut the presumption that counsel acted appropriately. However, no such evidence was provided here. Therefore, as in Hubbel, the presumption that Sellner's counsel acted reasonably has not been rebutted.\\n\\u00b647 Jefferson and Rose are inapplicable as well. The circumstances of Jefferson and Rose were such that we could not find any possible reason for counsel to fail to offer the relevant jury instructions. In contrast, it was possible for Sellner's counsel to exercise tactical discretion with regard to the \\\"failure to agree\\\" instruction. Section 46-16-607, MCA, recognizes that there is room for professional judgment in this area since it requires the trial court to give the instruction only when the defense requests it. Hubbel, \\u00b6 19. Though we decline to speculate on the various tactical or strategic purposes that may have entered counsel's mind, or even whether any actually did, we note that such matters were available to him for consideration.\\n\\u00b648 Sellner bore the burden to overcome the presumption that his counsel acted in a reasonable, professional manner. Given his failure to present any evidence on the matter, Sellner has not met his burden. Accordingly, we conclude that Sellner's trial counsel's failure to offer a \\\"failure to agree\\\" instruction did not constitute deficient performance.\\n\\u00b649 e. Did the appellant's trial counsel render deficient performance by making \\\"other errors\\\"?\\n\\u00b650 As we count them, Sellner cursorily raises four other issues that he argues amount to deficient performance: (1) defense counsel made mistakes in challenging jurors; (2) counsel failed to ensure that jury instructions properly tracked the appropriate, specific definitions of mental state; (3) counsel had a conflict of interest since he labored under a shortage of funds; and 4) counsel failed to adequately prepare for sentencing.\\n\\u00b651 For items (1), (3), and (4), Sellner fails to cite to any authority and makes only conclusory statements. We will not consider unsupported arguments. See In re Estate of Spencer, 2002 MT 304, \\u00b6 20, 313 Mont. 40, \\u00b6 20, 59 P.3d 1160, \\u00b6 20 (\\\"The Court will not consider unsupported issues or arguments.\\\"); Rule 23(a)(4), M.R.App.P. (requiring that an appellant's argument contain citations to the authorities relied upon).\\n\\u00b652 For item (2), Sellner cites one case, State v. Lambert (1996), 280 Mont. 231, 929 P.2d 846. However, Lambert considers the mental state of \\\"knowingly\\\" as it applies to a criminal endangerment statute. It is, at best, only tangentially related to the specificity of the jury instructions given in this case and provides little guidance. Without any other authority, we decline to further consider this argument as it is insufficiently supported. Accordingly, Sellner's trial counsel's performance was not deficient by reason of commission of \\\"other errors.\\\"\\n\\u00b653 3. Was the appellant prejudiced by his trial counsels performance?\\n\\u00b654 Because we do not find deficiency in Sellner's trial counsel's performance, we do not reach the question of prejudice.\\nCONCLUSION\\n\\u00b655 The plain language of \\u00a7 46-21-105(1), MCA, permitted one amendment of an original petition for postconviction relief and did not bar Sellner's amendment more than two years after finalization of his conviction under the circumstances here. However, Sellner's claims of ineffective assistance of counsel fail because we do not find that his trial counsel performed in a deficient manner.\\n\\u00b656 Affirmed.\\nJUSTICES REGNIER and LEAPHART concur.\"}"

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+"{\"id\": \"183290\", \"name\": \"PARNACITA SAMSON, for herself and as Personal Representative of the Estate of MATTHEW \\\"MARK\\\" SAMSON, on behalf of the heirs and successors of decedent, Plaintiff and Appellant, v. THE STATE OF MONTANA, Defendant and Respondent\", \"name_abbreviation\": \"Samson v. State\", \"decision_date\": \"2003-04-29\", \"docket_number\": \"No. 99-580\", \"first_page\": \"90\", \"last_page\": \"102\", \"citations\": \"316 Mont. 90\", \"volume\": \"316\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:14:14.117298+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES NELSON and REGNIER concur.\", \"parties\": \"PARNACITA SAMSON, for herself and as Personal Representative of the Estate of MATTHEW \\u201cMARK\\u201d SAMSON, on behalf of the heirs and successors of decedent, Plaintiff and Appellant, v. THE STATE OF MONTANA, Defendant and Respondent.\", \"head_matter\": \"PARNACITA SAMSON, for herself and as Personal Representative of the Estate of MATTHEW \\u201cMARK\\u201d SAMSON, on behalf of the heirs and successors of decedent, Plaintiff and Appellant, v. THE STATE OF MONTANA, Defendant and Respondent.\\nNo. 99-580.\\nSubmitted on Briefs October 11, 2001.\\nDecided April 29, 2003.\\nRehearing Denied June 5, 2003.\\n2003 MT 133.\\n69 P.3d 1154.\\n316 Mont. 90.\\nFor Appellant: Joseph C. Engel III, Attorney at Law, Great Falls; Dane J. Durham, Attorney at Law, Missoula.\\nFor Respondent: Honorable Mike McGrath, Attorney General; John C. Melcher, Assistant Attorney General, Helena; Maxon R. Davis, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls.\", \"word_count\": \"4476\", \"char_count\": \"27512\", \"text\": \"JUSTICE RICE\\ndelivered the Opinion of the Court.\\n\\u00b61 Appellant Parnacita Samson (Samson), Personal Representative for the Estate of Michael 'Mark\\\" Samson (Mark), appeals the jury verdict entered in the Eighth Judicial District Court, Cascade County, finding the State of Montana (State) was not negligent in the death of Mark. We affirm.\\n\\u00b62 The following issues are dispositive:\\n\\u00b63 1. Whether the jury's verdict for the State was supported by substantial evidence.\\n\\u00b64 2. Whether the District Court erred in admitting evidence that the shooting was an unforeseeable accident.\\n\\u00b65 3. Whether the District Court erred in failing to give Plaintiff's instruction on the meaning of negligent homicide.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b66 The Cascade County Youth Court committed Bridger Bercier (Bercier) to Pine Hills as a serious juvenile offender in January 1995. He was fifteen years old at the time. On February 10, 1996, following Bercier's completion of a successful home visit and continued improved behavior, Pine Hills released Bercier for a trial community placement at Youth Evaluation Program (YEP), a non-secure supervised facility in Great Falls. YEP is a licensed youth group home used to transition boys from Pine Hills to community placements. Bercier's stay at the YEP was uneventful. However, on March 16, 1996, he walked out of the facility. Bercier's leaving was timely reported to law enforcement.\\n\\u00b67 Bercier remained at large in Great Falls for nine days. During the evening of March 25, 1996, Bercier and two other youths, Dale Brott (Brott) and Tony Samson (Tony), were socializing in the basement of the Samson family home. Bercier had been over at the Samson home earlier in the day helping the Samson family push a car off the street and into the driveway. Brott saw that Bercier had a gun that afternoon, and Bercier had the gun with him at the Samson house that evening. All three boys' were drinking beer they had retrieved from Bercier's house. The three boys were joined by Mark, Tony's younger brother.\\n\\u00b68 Bercier passed Mark the gun without the clip. When Mark returned the gun to Bercier, all four boys were sitting on a couch. Mark sat next to Bercier on the couch. Bercier began pulling the clip in and out of the gun, and cocking and uncocking the gun. Bercier then discharged one round, killing Mark. The next morning Bercier surrendered to the Great Falls police. He pled guilty to negligent homicide and was returned to Pine Hills.\\n\\u00b69 Samson then brought a negligence action against the State of Montana. After a six- day trial, the jury returned a verdict for the State. Samson appeals from the judgment.\\nDISCUSSION\\n\\u00b610 Was the jury's verdict in favor of the State supported by substantial evidence?\\n\\u00b611 We review a jury's verdict to determine whether there is substantial credible evidence in the record to support it. Magart v. Schank, 2000 MT 279, \\u00b6 4, 302 Mont. 151, \\u00b6 4,13 P.3d 390, \\u00b6 4, citing Barnes v. United Industry, Inc. (1996), 275 Mont. 25, 33, 909 P.2d 700, 705. It is not our function to agree or disagree with the jury's verdict and, consequently, if conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other. Magart, \\u00b6 4, citing Barnes, 275 Mont. at 33, 909 P.2d at 705. It is only in rare cases that a jury verdict should be set aside. Magart, \\u00b6 4. Moreover, in reviewing the sufficiency of the evidence to support a jury verdict, we review the evidence in a light most favorable to the prevailing party. Magart, \\u00b6 4; Morgan v. Great Falls School Dist. No. 1, 2000 MT 28, \\u00b6 8, 298 Mont. 194, \\u00b6 8, 995 P.2d 422, \\u00b6 8.\\n\\u00b612 Samson argues that uncontradicted, credible evidence shows that the State was negligent. Samson points out that the record demonstrates Pine Hills transferred Bercier to a non-secure facility without obtaining a complete psychological evaluation during the thirteen months that he was at Pine Hills, a violation of the court order committing Bercier to Pine Hills. Additionally, Pine Hills transferred Bercier to a non-secure group home in Great Falls even though he was ineligible for leave and on disciplinary status. Moreover, the record shows the State failed to contact Bercier's parents during the nine days between his escape from the group home and the shooting.\\n\\u00b613 The State contends it presented evidence contesting that these failures constituted negligence. Testimony from the State's witnesses explained the lack of a psychological evaluation of Bercier while he was at Pine Hills. Prior to arriving at Pine Hills, Bercier had a chemical dependency evaluation that was used in developing his treatment plan. Also, an intake evaluation of Bercier had been conducted which indicated that he had no serious mental illness that would require a further psychological evaluation. In June 1996, after the shooting, a psychological evaluation of Bercier was conducted. Looking at those results, the social worker at Pine Hills testified that she would not have altered Bercier's treatment plan in 1995 had the results of the psychological evaluation been available to her at that time.\\n\\u00b614 Witnesses from Pine Hills also explained why Bercier was transferred from Pine Hills to a non-secure home in Great Falls, even though he was not eligible for leave and was on disciplinary status. When the decision to transfer Bercier to YEP was initially made, he was rated at a Level III behavioral level, the highest and most favorable level. However, at the time of transfer, Bercier had been downgraded to a Level I, due to an altercation with another person at Pine Hills. The Pine Hills team working on Bercier's case determined that, despite the drop in his behavioral level, it was in Bercier's best interest to transfer him because at the YEP facility he could receive chemical dependency treatment that could not be obtained at Pine Hills. In regard to Bercier's escape, the State presented evidence that YEP had properly reported his escape to law enforcement and that the staff had no authority or responsibility to track down Bercier. The State acknowledged that staff did not contact Bercier's parents about his escape, but offered that his parents had previously been uncooperative with the State on issues regarding Bercier's actions and whereabouts.\\n\\u00b615 It is not the duty of this Court to retry the case and evaluate the facts to determine if the State was negligent. Rather, we review a jury's verdict to determine whether there is substantial credible evidence in the record to support it. Magart, \\u00b6 4. Based on a review of the record before us, we conclude there was sufficient evidence presented to support the jury's conclusion that the State was not negligent. Therefore, we will not overturn the jury's verdict.\\n\\u00b616 Did the District Court err in admitting evidence that the shooting was an unforeseeable accident?\\n\\u00b617 The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313. The trial court exercises broad discretion in determining relevance of evidence. State v. Smith, 1998 MT 257, \\u00b6 6, 291 Mont. 236, \\u00b6 6, 967 P.2d 424, \\u00b6 6.\\n\\u00b618 Samson argues the District Court erred in allowing the State to present evidence and to argue that the shooting was an \\\"unforeseeable accident.\\\" Samson contends the court abused its discretion in denying Samson's Motion to Disallow Testimony of Ken Baker, an expert witness for the State.\\n\\u00b619 Baker has an extensive background in law enforcement, including service as chief of the behavior sciences unit of the United States Secret Service. His experience and training includes study and work in the assessment and predictability of an individual's potential for violent behavior, particularly toward governmental and corporate officials. Baker assessed, and offered testimony regarding, the predictability of Bercier's violence, which the District Court allowed.\\n\\u00b620 The State correctly observes that Samson has appeared to abandon her challenge to Baker's qualifications to testify as an expert under Rule 702, M.R.Evid., which was one basis for her argument in the District Court. Instead, Samson focuses on her contention that Baker, though sufficiently qualified in his particular field, did not offer testimony constituting \\\"scientific, technical or other specialized knowledge\\\" that would \\\"assist the trier of fact,\\\" as also required by Rule 702. In other words, Samson, describing Baker's testimony as \\\"psycho-babble,\\\" argues that the jury was perfectly capable of determining the predictability of Bercier's actions by assessing the evidence, and did not need, nor was assisted by, Baker's expert testimony.\\n\\u00b621 After testifying regarding his qualifications and his assessment of this matter, Baker opined that the shooting here was accidental and not predictable, focusing on factors such as his analysis of the crime scene, Bercier's post-shooting behavior, and particularly, Bercier's personal history. He testified:\\nBaker: . I saw nothing in his background that involved weaponry.... I didn't see in Bridger Bercier's background crimes of violence against people. I saw lots of crimes against property and thefts and thievery and stealing and such. But I did not see crimes that involved attacking people or especially with weapons or knives or guns or that type of thing.\\nDef. Cnsl: Is that significant to you?\\nBaker: Absolutely significant.\\nDef. Cnsl: Why so?\\nBaker: Well, because the absence of that deals with predictability . [I]n terms of predictability, it certainly makes a big difference to me after having looked at the record as to whether or not this crime was predictable in [sic] my opinion is that it was not predictable.\\nDef. Cnsl: Well -\\nBaker: It was not foreseeable.\\n\\u00b622 It is necessary, in order to sustain a negligence action, that the plaintiff establish a legal duty on the part of the defendant, a breach of that duty, causation, and damages. Lopez v. Great Falls Pre-Release Services, Inc., 1999 MT 199, \\u00b6 18, 295 Mont. 416, \\u00b6 18, 986 P.2d 1081, \\u00b6 18. Further, in LaTray v. City of Havre, 2000 MT 119, 299 Mont. 449, 999 P.2d 1010, we explained that in cases involving a dispute over the intervening criminal act of a third party, as here, foreseeability must be analyzed twice: first, with regard to the existence of a legal duty, and second, with regard to proximate causation. LaTray, \\u00b6 17. \\\"[A]nalyzing foreseeability in the duty context, we look to whether or not the injured party was within the scope of risk created by the alleged negligence of the tortfeasor-that is, was the injured party a foreseeable plaintiff?\\\" Lopez, \\u00b6 28. In analyzing foreseeability in the context of proximate cause, \\\"we are concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused\\\" the injury sustained by the plaintiff. Lopez, \\u00b6 32.\\n\\u00b623 Further, we have explained that:\\nin cases involving intervening superseding acts of a criminal or noncriminal nature, \\\"trial courts must continue to carefully review each fact situation . on a case-by-case basis .\\\" Estate of Strever, 278 Mont. at 179, 924 P.2d at 674. The causal issue of intervening criminal or noncriminal acts \\\"normally involves questions of fact which are more properly left to the finder of fact for resolution.\\\" Estate of Strever, 278 Mont. at 178, 924 P.2d at 674.\\nLopez, \\u00b6 34.\\n\\u00b624 The State contends that it was necessary for its defense to present the testimony of Baker. Because the jury was required to determine the foreseeability of the intervening act, it needed information relating to the foreseeability of Bercier's actions, and thus, the State argues Baker's testimony was relevant and necessary and aided the jury.\\n\\u00b625 As we held in Lopez and LaTray, determining causation requires a consideration of the foreseeability of the intervening criminal act. In LaTray, where a defendant's liability under similar circumstances was at issue, we stated:\\nHere, as in Lopez, we are concerned with whether Shawn's assault was a superseding cause of the harm incurred by LaTray which, if not reasonably foreseeable, would break the chain of causation and absolve the City of liability.\\nLaTray, \\u00b6 28. See also Lacock v. 4B's Restaurants, Inc. (1996), 277 Mont. 17, 919 P.2d 373. Thus, it was necessary for the jury to determine whether the chain of causation was broken by the unforeseeability of Bercier's conduct, and, in that regard, Baker's testimony offered an analysis which purported to assess predictability of Bercier's actions. As stated above, the trial court exercises broad discretion in determining the relevancy of evidence. Smith, \\u00b6 6. Given the jury's need to determine the foreseeability of Bercier's actions, we determine that, under the particular challenge made here, the District Court did not abuse its discretion in allowing the testimony of Baker and denying Samson's Motion to Disallow Testimony of Ken Baker.\\n\\u00b626 An inconsistency has developed in our cases involving, as here, the foreseeability of an intervening cause, and it is appropriate that we resolve that conflict. In Lacock, we held that when considering foreseeability as an element of causation:\\n[I]t will be necessary for the court to discuss foreseeability, in the course of explaining to the jury which intervening causes sever the chain of causation and which do not. In doing so, it will be necessary to instruct the jury consistently with the provisions of \\u00a7 27-1-317, MCA, that is, that the specific injury to a plaintiff need not have been foreseen.\\nLacock, 277 Mont. at 22, 919 P.2d at 375-76 (emphasis added). However, despite this clear holding, language which would require a jury to determine the foreseeability of a plaintiffs \\\"specific injury\\\" has crept back into our opinions. See Lopez, \\u00b6 32, and LaTray, \\u00b6 28. While it was not the Court's intention in either Lopez or LaTray to revise Lacock's holding on this issue, the language used in those cases is clearly contradictory thereto. Therefore, we take this opportunity to resolve this inconsistency by reaffirming our holding in Lacock, confirming that in cases alleging an intervening cause, juries must be instructed that the specific injury to the plaintiff need not have been foreseen.\\n\\u00b627 Did the District Court err in failing to give Plaintiffs instruction on the meaning of negligent homicide?\\n\\u00b628 It is within a district court's discretion to decide how to instruct the jury, taking into account the theories of the contending parties. Allison v. Town of Clyde Park, 2000 MT 267, \\u00b6 11, 302 Mont. 55, \\u00b6 11, 11 P.3d 544, \\u00b6 11. This Court will not overturn a district court for instructions given to a jury without an abuse of discretion. Allison, \\u00b6 11. This Court reviews the instructions as a whole and in light of all the instructions and the evidence introduced at trial. Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, \\u00b6 44, 297 Mont. 33, \\u00b6 44, 991 P.2d 915, \\u00b6 44. Absent prejudice, the trial court's decision will be affirmed. Federated Mut., \\u00b6 44. No prejudice can be shown where the jury instructions in their entirety state the applicable law of the case. Federated Mut, \\u00b6 44.\\n\\u00b629 Samson argues that the District Court abused its discretion in rejecting her proposed jury instruction defining the mental state of negligent homicide. Samson's proposed instruction reads as follows:\\nInstruction No. 30: In this case, you, the jury, must accept as conclusively established that Bridger Bercier, in his answering true to the accusation in Youth Court that he committed the crime of negligent homicide, admitted that his conduct toward Michael \\\"Mark\\\" Samson, in causing his death, was a \\\"gross deviation from the standard of care.\\\" For purposes of this case and for your deliberations, you are to accept as conclusive that Bridger Bercier's conduct toward Michael \\\"Mark\\\" Samson was \\\"a gross deviation from the standard of care.\\\"\\n\\u00b630 Without this instruction, Samson claims it was impossible for the jury to understand the significance of Bercier's guilty plea to the charge of negligent homicide and, thus, the jury could not place Bercier's guilty plea within the proper context. By denying Samson's instruction, Samson asserts that the jury was left with only Instruction No. 10's definition of negligence, given to judge the State's conduct herein, and was therefore required, even \\\"directed,\\\" to conclude therefrom that Bercier had admitted only to the lack of ordinary or reasonable care when he pled guilty to negligent homicide. Samson then posits that, because of this misdirection, the jurors were not instructed in a manner that would allow them to appreciate that the State was making what Samson contends was an \\\"inconsistent\\\" argument-that the State could charge and accept a plea from Bercier for negligent homicide and then also argue in this action that the shooting was an unforeseeable accident. Samson contends that it was a gross injustice for the State to take these inconsistent positions, and error for the District Court to deny her instruction meant to highlight the State's fundamentally unfair posture.\\n\\u00b631 Samson relies on this Court's holdings in Rix v. General Motors (1986), 222 Mont. 318, 723 P.2d 195, and Chambers v. Pierson (1994), 266 Mont. 436, 880 P.2d 1350, to claim the District Court committed reversible error. In those cases we stated, \\\"A party has a right to jury instructions adaptable to his theory of the case when the theory is supported by credible evidence. It is reversible error to refuse to instruct on an important part of a party's theory of the case.\\\" Rix, 222 Mont. at 323, 723 P.2d at 198.\\n\\u00b632 The State argues that it was not necessary for the District Court to instruct the jury on the mental state of the crime of negligent homicide. According to the State, when taken as a whole, the instructions given by the District Court properly instructed the jury on the State's duty of custody and supervision, set out the elements for recovery based on negligence, defined negligence, and instructed the jury to find the State liable if the State's negligence was a cause of the death of Mark Samson. The State asserts the instructions properly included the key concepts in this wrongful death action. Relying on Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 916 P.2d 122, the State contends trial courts should not instruct on related legal concepts which do not control issues before the jury. According to the State, the mental state of Bercier at the time he committed the crime was not a controlling issue in the wrongful death case, and the District Court properly exercised its discretion in denying Samson's proposed Instruction No. 30.\\n\\u00b633 On appeal, Samson has not argued that the State was in any way estopped by the homicide proceeding from defending this action with a foreseeability-related causation defense. In the District Court, Samson argued that the State was judicially estopped from offering its foreseeability theory, and tendered Instruction No. 30 in conjunction with that estoppel defense, which was denied. Here, Samson simply challenges the denial of the instruction itself, without the accompanying estoppel argument.\\n\\u00b634 Samson also offered Instruction No. 30 to boost her own foreseeability theory, which defined Bercier's conduct as reckless and postulated therefrom that it was foreseeable because of his background. Using this argument, Samson sought to undermine the State's contention that this was an accidental shooting which could not have been foreseen.\\n\\u00b635 However, the fundamental issue in this wrongful death action concerned the State's negligence, not the mental state of Bercier, and the instructions given by the District Court properly reflected that. When viewed in their entirety, the jury instructions given by the District Court properly stated the applicable law of the case. As such, the instructions given were adaptable to Samson's argument, and it was within the District Court's discretion to deny the proposed instruction.\\n\\u00b636 Further, the denial of the proposed instruction did not prejudice Samson's case, as Samson was nonetheless able to present her foreseeability theory. Of course, it was not lost on anyone involved in the trial, including the jury, that this tragic incident arose from an utter lack of caution or care. Samson's counsel elicited from the deputy county attorney who prosecuted Bercier that he had determined that Bercier's actions constituted \\\"a gross deviation from the standard of care,\\\" from which Samson's counsel argued in his closing argument that the shooting was much more than an accident. Therefore, while the proposed instruction may have been helpful to Samson's presentation, she was not prevented from asserting her theory on the foreseeability of this tragedy under the instructions which were given, and thus, sustained no prejudice as a result of the District Court's denial.\\n\\u00b637 Finding no abuse of discretion nor prejudice to the plaintiff herein, the decision of the District Court is affirmed.\\nJUSTICES NELSON and REGNIER concur.\"}"

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+"{\"id\": \"2280975\", \"name\": \"BURT, Appellant, v. C. W. COOK SHEEP COMPANY et al., Respondents\", \"name_abbreviation\": \"Burt v. C. W. Cook Sheep Co.\", \"decision_date\": \"1891-06\", \"docket_number\": \"\", \"first_page\": \"571\", \"last_page\": \"585\", \"citations\": \"10 Mont. 571\", \"volume\": \"10\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T23:34:03.925644+00:00\", \"provenance\": \"CAP\", \"judges\": \"Blake, C. J., and De Witt, J., concur.\", \"parties\": \"BURT, Appellant, v. C. W. COOK SHEEP COMPANY et al., Respondents.\", \"head_matter\": \"BURT, Appellant, v. C. W. COOK SHEEP COMPANY et al., Respondents.\\nDower \\u2014 Limitation of action. \\u2014 A widow is not barred from prosecuting an action for tbe assignment of dower by section 29 of the Code of Civil Procedure, providing that \\u201cno action for the recovery of real property or for the recovery of the possession thereof can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question within five years before the commencement of the action,\\u201d for, until the estate is consummated and assigned, the widow has no seisin or possession from which the period of limitation may be dated, nor has she an ancestor, predecessor, or grantor of the dower right within the meaning of the said Statute of Limitations. Nor is such action barred by section 47 of chapter 3, title iii. of the Code of Civil Procedure, providing that an action for relief not hereinbefore provided for must be commenced within three years after the cause of action accrued, as said chapter 3 of said title and the sections thereof relate only to the limitation of actions other than those for the recovery of real property.\\nAppeal from Sixth Judicial District, Meagher County.\\nThe demurrer to the complaint was sustained by Henry, J.\\nWord & Smith, for Appellant.\\nGeneral Statutes of Limitation do not run against the widow\\u2019s1 right to dower, and her right to dower is not barred by limitation, unless it is expressly so stated in the statutes. (Buswell on Limitation of Actions, \\u00a7 289; Park on Lower, 311-315; 4 Kent Com. [7th ed] p. 70; May v. Rumney, 1 Mich. 1; Barnard v. Edwards, 4 N. H, 107; 17 Am. Dec. 403; Robie v. Flanders, 33 N. H. 524; Wakemon v. Roache, Dud. (Ga.) 123; Spencer v. Weston, 1 Dev. & B. 213; Angel\\u00ed on Limitations [6th ed.], 367; Ralls v. Hughes, 1 Dana, 407; Tooke v. Hardeman, 7 Ga. 29; Littleton v. Patterson, 32 Mo. 364, 365; Johns v. Fenton, 88 Mo. 66; Teidman on Real Property, \\u00a7 131; Guthrie v. Owen, 10 Yerg. 339; Parker v. Obear, 7 Met. 24; Wells v. Beall, 2 Gill & J. 468; Dozens v. Allan, 10 Lea, 652, 668; Galbraith v. Green, 13 Serg. & R. 85; Dillebaugh\\u2019s Estate, 4 Watts, 177; Durham v. Angier, 20 Me. 242; Hogle v. Stewart, 8 Johns. 104; Settman v. Bowen, 8 Gill & J. 50; 29 Am. Dec. 524; Williams v. Ky. Dec. 14,1889, 12 S. W. Rep. 760; Wood on Limitation of Actions, \\u00a7 273, p. 584; 1 Coke on Littleton, 31 a, and note, 39; Brenner v. Quick, 88 Ind. 546.) All of the foregoing authorities are to the effect that the general Statutes of Limitation of Henry \\\"VIII. and James I., which have generally been adopted by the States of the Union, do not constitute any bar to the wife\\u2019s recovery of dower, notwithstanding the length of time that may have run since the death of her husband, or since the land was alienated. Neither can the possession of the heir or purchaser be adverse to the dower right of the widow. The estate of the widow arises by operation of law, and is not created by any grant or by virtue of any act of the husband other than his seisin in the property, and as the lands when held by the husband are subject to the inchoate or incipient right of the widow\\u2019s dower, the purchaser takes them in the same way, subject to the same legal incidents, of which they can be divested only by the death of the wife. The purchaser enters into the possession, not under a full and perfect title, but under a title subject to the dower right of the wife, with which his title well consists, and to which it is nowise opposed. There are some authorities which hold that the wife\\u2019s right to dower is barred by general Statutes of Limitation, in which the dower is not expressly named, and the authorities cited by the counsel for the defendants, that the action of the wife for dower is barred by the general Statutes of Limitation, are from those States which have some statutory provisions, giving to the wife as dower upon the death of her husband the mansion-house, and generally one third of the lands to be allotted them, adjoining and including the domicile or homestead; and in such cases, upon the death of her husband the widow is by law deemed in possession of her dower and a tenant in common with the heir at law. The following States have the statutory provisions referred to, to wit, New Jersey, Kentucky, Indiana, Illinois, Alabama, Mississippi, Virginia, Missouri, Arkansas, and Ohio, and it is under such statutes, defining by law the dower interest of the wife and making it certain as to locality, that the following decisions were rendered: Robinson v. Ware, 94 Mo. 678; Beard v. Hale, 95 Mo. 16; Berrien v. Conover, 16 N. J. L. 107; Webb v. Smith, 40 Ark. 17. And other decisions of like import will be found to have been based upon such statutory provision or general statutes, in which the dower right of the widow is expressly stated as being barred after a certain length of time.\\nThe American courts, where the common law of England has been adopted, and where it has not been changed by statutory enactments, have gone further than the English courts in maintaining the right of the wife to dower in all the lands of which her husband was seised during coverture. They have even gone to the extent of laying down the rule that she has a right of dower in an equity of redemption, of which her husband died seised, and that she could maintain her action for her dower right in an equity of redemption. As said by Lord Coke: \\\"There are three things favored in law, viz., life, liberty, and dower.\\u201d The right of the wife to dower in the lauds of which her husband was seised during coverture, by the Act of' February 11,1876, is distinctly affirmed by the Supreme Court in the case of Chadwick v. Totem., 9 Mont. 354. The common law, having been adopted as a part of our jurisprudence (\\u00a7 201, p. 647, Comp. Stats.), the Supreme Court of the State will look to the English decisions and other decisions on the questions involved for a correct construction of the Statute of Limitations on the question of dower, and see whether or not dower is included in a general Statute of Limitations, where dower is not named. Adopting this theory, upon which we deem it useless to cite authorities, we believe the decisions rendered upon the Statute of Limitations by English and American courts, con struing the same, are almost stare deaisis of the question here involved. Our Statute of Limitations is not near so broad as in Michigan and other States, where it has been decided that the statute was not a bar to the wife\\u2019s action for dower.\\nThomas G. Bach, for Respondents.\\nThe case of May v. Rumney, 1 Mich. 1, is reviewed and distinguished in Proctor v. Bigelow, 38 Mich. 282, which latter ease depends upon a statute similar to ours. As to the Maryland case, cited by the appellant, it is held by that court in Steiger v. BLillen, 5 Gill & J. 121, that equity will apply the doctrine of laches, and we shall hereafter show that in Montana equity is limited not by laches but by statute. It is true, as counsel says, that at common law the widow could not bring ejectment until dower was assigned, and that is the ground of reasoning in the cases cited by him; but in Montana, by the law of 1876, she can bring her action before the assignment, and in that action have the assignment made and have a judgment for the possession all in one action. (See, also, opinion of Dillon, C. J., Rice v. Nelson, 27 Iowa, 148.)\\nIn New Hampshire it is apparent from the opinion of the court that the widow could bring no action for the recovery of the land, until dower had first been assigned. With us she has a right of action at once, if the person in possession does not assign her dower within thirty days after the decease of the husband. Again, it is apparent from the last paragraph of the opinion, and from the case in 4 N. H., cited by appellant, that in New Hampshire the Statute of Limitations applied only to legal actions \\u2014 the doctrine of laches only applies to suits in equity. This is not the law here, as will be shown. In the 33 N. H. case it is recognized that the statute does apply, the question being only when does the statute commence to run; and it will be seen that the widow\\u2019s right to sue commences only after demand and refusal. With us she is expressly given the right to sue if the person in possession neglects to assign her dower within thirty days after the death of her husband. Again, in New Hampshire, it seems that the old writ of dower is still iu practice.\\nAs to Galbraith v. Green, 13 Serg. & R. 85, whatever this case may have decided, it is certain that the Pennsylvania court \\u2018has held that the Statute of Limitations does control.\\nIn Durham, v. Angier, 20 Me. 242, the court decided that where one claimed under and not against the husband, the statute would not commence until after his death. Whether or not it would then commence, the court refused to decide. The principle of the New York cases cited by appellant will be found in Jones v. Powell, 6 Johns. Ch. 194. And it is respectfully urged that upon principle the last case is directly in favor of respondent; and it is to be remembered that Chancellor Kent, from whom appellant quotes, wrote the opinion.\\nBy our Code there is no longer a suit in equity and an action at law; all actions are either civil actions or criminal actions. It is expressly enacted that \\u201ccivil actions can only be commenced within the periods prescribed in this title .... except where, in special cases, a different limitation is prescribed by statute.\\u201d (\\u00a7 28, Code Civ. Proc. p. 65, Comp. Stats.) The law of 1876, which defines dower and provides for its enforcement, does not prescribe a different limitation. Hence, it is governed by: First, either the law of the time commencing actions concerning real property; or second, it.comes within the statute fixing the time for what were formerly suits in equity.\\nThis is certainly an action \\u201cconcerning real property\\u201d; it is undoubtedly an action brought to recover the possession of real property. (Tuttle v. Wilson, 10 Ohio, 26, 27.) And see below for comparison of statutes, Jones v. Powell, 6 Johns. Ch. 194; Proctor v. Bigelow, 38 Mich. 282; Torrey v. Minor, 1 Smedes & M. Ch. 489, 494; Robinson v. Ware, 94 Mo. 678; Rice v. Nelson, 27 Iowa, 148 \\u2014 157. By the terms of the law of 1876, it was made the duty of respondents to assign to plaintiff her dower within thirty days after the death of her husband. It appears that they did not, and such act was hostile to her rights \\u2014 was a disseisin \\u2014 and she has been neither seised nor possessed of the property within five years. On the contrary, defendants have been seised and possessed of it ever since the death of her husband. (Care v. Keller, 77 Pa. St. 492; Kinsolving v. Pierce, 18 Mon. B. 784; Seymour Y. Carli, 31 Minn. 81.) Therefore the Statute of Limitations concerning real property applies. The law of 1876 provides an action for the recovery of possession. Section 29 provides that \\u201cno action for the recovery of real property, or for the recovery of the possession thereof, can be maintained,\\u201d etc. It would seem that no language could be stronger \\u2014 no argument more syllogistic. The Statute of Limitations controls. (Proctor v. Bigelow, 38 Mich. 282; Jones v. Powell, 6 Johns. Ch. 194; Torrey v. Minor, 1 Smedes & M. Ch. 489; Tuttle v. Wilson, 10 Ohio, 26; Kinsolving v. Pierce, 18 Mon. B. 782; Care v. Keller, 77 Pa. St. 492; Robinson v. Ware, 94 Mo. 682; Con-over v. Wright, 6 N. J. Eq. 613; 47 Am. Dec. 213; Berrien v. Conover, 16 N. J. L. 107; Ramsay v. Dozier, 3 Brev. 246.) The 10 Ohio case will be found peculiarly applicable, for the statute of that State gives the same remedy to the widow, the same form of action, as is given in Montana under laws of 1876. (See 2 Rev. Stats. Ohio [1880], \\u00a7\\u00a7 5708, 5112.) The same may be said of the cases from Missouri, as will appear in Robinson v. Ware, supra; especially is this true of the Statute of Limitations of that State. The widow\\u2019s remedy in Missouri is also similar to ours. (See 1 Rev. Stats. Mo. [1889], \\u00a7\\u00a7 4535, 4536.) It is said that as to the heirs of the husband, they are cotenants, and the statute does not apply until forty days after death; but as to a purchaser, his right is antagonistic, and by our statute he must assign dower within thirty days; and care must be taken to distinguish the rule in this State from the rule in those States which requires the widow to demand before she can bring her action. (Rice v. Nelson, supra.) With us she has her action for possession thirty days after death of her husband, although as to damages they do not accrue until demand. (See, also, Conover v. Wright, 6 N. J. Eq. 613, 617.)\\nAs to equity right. As before stated there is a statute for all civil actions, which includes what were formerly actions at law and suits in equity, (a) The statute applies to what were suits in equity. (Lord v. Morris, 18 Cal. 485; McCarthy v. White, 21 Cal. 495; 82 Am. Dec. 754.) (b) But if this should not be considered an action to recover possession of real property, then it is governed by section 47, which applies to all actions for relief not hereinbefore provided for, a section taken from California, and by the Supreme Court of that State held to include all suits or actions sounding in equity and not included within the prior (or other) sections. (See Piller v. Southern P. B. B. Co. 52 Cal. 42.)\", \"word_count\": \"6056\", \"char_count\": \"34005\", \"text\": \"Harwood, J.\\nThe sole question brought to this court for determination by this appeal is, what effect has the general Statute of Limitations of this State upon the right of a widow to maintain the action provided by the dower act for the assignment of dower?\\nIt appears from the record in this case that plaintiff filed her complaint, setting forth, in effect, that plaintiff intermarried with Henry S. Crittenden, September 13, 1874, and lived with her said husband from that date continuously in Montana until his death, which occurred in the month of October, 1878; that during said coverture, her said husband was seised in fee of certain real estate described and situate in Meagher County. that about the month of November, 1877, the said Crittenden sold and conveyed said land, without the plaintiff's consent and without her joining in such conveyance, and that plaintiff has never relinquished her dower right in said land; that defendants are now in possession of said land, and claim to own the sam\\u00e9.\\nThe court below sustained defendants' demurrer to the complaint, on the ground that it appeared from the facts stated that the Statute of Limitations barred plaintiff's right to maintain her suit for the assignment of dower. Plaintiff appealed, and the same point has been argued with great ability and research before this court.\\nThere is considerable variation in the decisions of courts of last resort upon this question, not only as to the conclusions reached, but also as to the reasons assigned therefor. It would be an unnecessary task, here to set forth a review of all the decisions which we have examined upon this question, because that work has been thoroughly done by able writers. (2 Scribner on Dower, 523-543; 4 Kent Com. [13th ed.] 70, and notes; Washburn on Beal Property, 276-278; Angel\\u00ed on Limitations, \\u00a7 367; Wood on Limitation of Actions, 584, 585; Tiedeman on Beal Property, \\u00a7 131.)\\nIn setting forth the reasons upon which we arrive at the con elusions herein announced, we shall bring to attention such cases as illustrate the different views heretofore held by the courts, and the different statutes upon which the same were founded. These, together with the dicta of able writers, shell as cited supra, and the collation of authorities by them cited, which we have to a large extent examined, have given us much aid in determining the question before us.\\nThe prototype of the Statutes of Limitations, enacted in the various States of the American Union, is undoubtedly the early English statutes on the same subject. (Angel\\u00ed on Limitations, ch. 2; Wood on Limitation of Actions, ch. 1.) We observe, as bearing upon the question before us, that it is agreed by the writers, that it has been uniformly held by the English courts, .\\u00a1that the general Statutes of Limitations of England did not \\u00a1apply to writs for assignment of dower; but in later times .\\u2022special statutes have been passed limiting the period for the \\u00a1.assertion of that right. (See authorities cited supra.)\\nIn -the United States, as before observed, and as will be seen ?oy an examination, the holding is not uniform. But the terms of the Statutes of Limitation vary greatly in different States, . as will be seen by comparison (Angel\\u00ed on Limitations, and Wood on Limitation of Actions, Appendix); and it is therefore not at all strange that while in some cases the action or \\u00a1suit for the assignment of dower is held to be within the statute, by reason of its terms, in other cases and under statutes \\u00a1..of different terms the contrary is held.\\nIn the case of Jones v. Powell, 6 Johns. Ch. 194, decided in 1822, Chancellor Kent uses language tending strongly to indimate that he held the opinion that the general Statute of Limitation, in force in New York at that time, according to its terms, would bar an action for the assignment of dower. However, the decision was not controlled by the general statute commented on, because the dower act there provided that \\\"a widow shall be at liberty at any time during her life to make a demand for her dower.\\\" In view of that provision the chancellor observes that the court \\\"may therefore put out of the consideration of this case the effect of any legal limitation to the action of dower.\\\" The comments of the chancellor in that case, .although upon statutes which did not control his decision, carry much weight in view of his eminent abilities, and are justly relied on by counsel for respondent. One provision of the statute commented on is quoted in the opinion as follows: \\\"No person shall make any entry into lands, but within twenty-one years next after his right of action accrued.\\\" This limitation, it was thought, would bar the possessory action of the\\\" widow for dower. Notwithstanding the views of the chancellor expressed in that case, we observe that when he afterward wrote the fourth volume of his commentaries, in treating of the subject of the limitation of the action of dower, he cites other cases where the question had come under consideration in the United States, but makes no mention of the case of Jones v. Powell, supra, nor does he express the views therein set down. Evidently that case was regarded as containing only a passing comment on a statute which did not control the decision. The author says: \\\" In the English law, the wife's remedy by action for her dower is not within the ordinary Statutes of Limitations, for the widow has no seisin; but a fine levied by the husband, or his alienee or heir, will bar her, by force of the statute of non-claims, unless she brings her action within five years after her title accrues, and her disabilities, if any, be removed. In South Carolina, it was held in Ramsay v. Dozier, 3 Brev. 246, and again in Boyle v. Rowand, 3 Desaus. Eq. 555, that time was a bar to dower, as well as to other claims. But in the English law there is no bar; and in New Hampshire, Massachusetts, and Georgia, it has been adjudged that the writ of dower was not within the Statutes of Limitations. As to the account against the heir for the mesne profits, the widow is entitled to the same from the time her title accrues; and unless some special cause be shown, courts of equity carry the account back to the death of the husband. The New York Bevised Statutes have given a precise period of limitation, and require dower to be demanded within twenty-one years from the time of the death of the husband, or from the termination of the disabilities therein mentioned.\\\"\\nThe Revised Statutes of New York, \\\"giving a precise period of limitation\\\" to the action for dower mentioned in the text quoted, was passed after the decision of the case of Jones v. Powell. After the decision of that case, the question of the effect of the general Statute of Limitations upon the widow's right of action for assignment of dower arose in certain cases, which he mentions, and were determined upon the consideration of the general statutes; notably the cases of Barnard v. Edwards, 4 N. H. 107; 17 Am. Dec. 403; and Parker v. Obear, 7 Met. 24; wherein it was held that general statutes, very much like that of New York when the case of Jones v. Powell was decided, do not apply to the dower right. We shall have occasion to refer to these cases further along in this opinion.\\nIn 1847 the Supreme Court of Michigan, in an elaborate opinion (May v. Rumney, 1 Mich. 1), reviewing the American and English authorities, arrived at the same conclusion expressed in the Massachusetts and New Hampshire cases, supra. So in Missouri in 1862, under a statute substantially like the present statute of Montana, it was held that the general Statute of Limitation did not bar the dower right. (Littleton v. Patterson, 32 Mo. 357.)\\nIn Michigan the question came before the Supreme Court again in 1878 (Proctor v. Bigelow, 38 Mich. 282); and it was-held that the statute as it then stood barred the widow's action for dower. Some changes it appears had been made in the-statute since the case of May v. Rumney was decided, relating to the action for dower, which are reviewed by Chief Justice Campbell in the opinion, and the conclusion announced was placed upon the ground that the action for the assignment of dower, being by statute made an action of ejectment, was within the general terms of the Statute of Limitation, which was quoted in the opinion as follows: \\\"No person shall commence an action for the recovery of any lands, nor make any entry thereupon, unless within twenty years after the right to-make such entry or bring such action first accrued.\\\"\\nThe statute just quoted from the Michigan decision, and the statute of Montana quoted above, furnish an illustration of two quite common forms of statutes on the subject before us. The Michigan statute, and others of that form, provides the limitation, from the time the right to make the entry or bring the action \\\"first accrued\\\"; while the statute of Montana and others of like terms provide that the action is barred, \\\"unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question \\\" within the time prescribed. Now, as applicable to the right of dower, the two forms of statute are vastly different. Dower is a life estate, in the widow, cast by law, in conjunction with certain conditions, which together operate to initiate and consummate the right of dower. The wife has no possession or seisin, nor has \\u2022she a right thereto, until the estate is consummated and assigned. It cannot in the nature of this particular estate be logically maintained that the widow has any ancestor, predecessor, or grantor of the dower right, in the sense in which those terms are used in section 29 of our Code of Civil Procedure. Mr. Angel\\u00ed, in his work on Limitations, says: \\\"Dower is not within the Statute of Limitation of Henry, or of James; but a fine levied by the husband, or his alienee or heir, will bar her by force of the statute of non-claims, unless she bring her \\u00a1action within five years after the accruing of her title, and the removal of her disabilities, if any. In New Hampshire, in Georgia, in North Carolina, and in Tennessee, the writ is not within the Statute of Limitations, and in Maryland it has been held that the Statute of Limitations is no bar in equity to the \\u2022claim of dower. The principle of the doctrine is stated clearly by the court in the case in New Hampshire. (Barnard v. Edwards, supra.) The view taken by the court was that the statute applied only to actions, entries, and claims, founded upon a previous seisin or possession of the lands demanded, from which \\u00a1seisin or possession the time of limitation may be dated; and that dower cannot have a limitation dated from the seisin of the husband, and that a limitation cannot be dated from the seisin \\u2022or possession of the widow, because she cannot have either until dower has been assigned to her. This doctrine was recognized and approved by the Supreme Court of Massachusetts in a case (Parker v. Obear, supra), wherein it was decided that a writ of dower was not barred by the Revised Statutes of that State; and the court say that the limitation being thus dated from the seisin, it would be absurd to extend it to actions in which seisin not being issuable, can never become the subject of evidence on the trial.\\\" (Angel\\u00ed on Limitations, \\u00a7 367.)\\nIn a note to the above text appears a quotation from Brook's Reading upon the statute 32 Hen. VIII., chapter 2, as follows i \\\" A woman brought a writ of dower, of the seisin of her husband sixty-one years past, the action lieth, because that is not of her own seisin, nor of none of her ancestors nor predecessors, neither is it an action possessory, and it is not prohibited by the statute.\\\"\\nThe first section of the dower act of this State provides that \\\"a widow shall be endowed of the third part of all lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.\\\" Now, if it be held that when she petitions under that act for the assignment of the estate, of which the law endows her, she must show that she, or her predecessor or grantor, was seised or possessed of the estate claimed within five years, we are constrained to ask, how will she do this? To whom will she point as predecessor or grantor of the estate with which the law declares she \\\"shall be endowed?\\\" It cannot be said that her husband was her grantor or predecessor. He neither grants to her, nor can he grant away from her, that dower estate. It is true the husband is the person through or under whom the wife, by virtue of law, claims her dower; but our Statute of Limitation does not contain the terms \\\"through or under whom\\\" the plaintiff claims, as often appears in statutes. If it should be held that the husband is the grantor or predecessor of the wife's dower estate, then the wife would be compelled to show that he was seised or possessed within five years, or her dower would be lost; and in such case he could convey the seisin and possession, and remain out five years, and if he lived that length of time, the dower would be lost by force of the Statutes of Limitations before it was consummated; notwithstanding the statute declares she shall be endowed of one third of the lands whereof her husband was seised \\\" at any time during the marriage, unless relinquished in legal form.\\\" If it is held that the husband's ancestor, grantor, or predecessor is also the grantor or predecessor of the wife's dower estate, then the very seisin of the husband for five years prior to the consummation of the dower estate would bar her dower, because she would have to point to her husband's ancestor, grantor, or predecessor as her predecessor, and, of course, they would under that state of facts have been out of possession and seisin for the period of five years. These deductions we think would certainly result from holding that the widow must bring her action for the assignment of dower within the provisions of section 29 of the Code. Upon reason and authority, and the unquestioned meaning of the terms used in-that section, we think it was never intended to apply as a bar or limitation to the widow's suit for the assignment of dower.\\nIn our investigation of this subject, we have nowhere found any authority questioning the force of the reasoning set forth in the New Hampshire and Massachusetts cases cited supra\\u00bb In the well sustained opinions, where it has been held, as in Michigan (Proctor v. Bigelow, supra), that the general Statute of Limitation barred the action for assignment of dower, the statute provided that the action must be commenced within the stated period \\\" after the right to make such entry or bring such action first accruedor as in Ohio (Tuttle v. Wilson, 10 Ohio, 25), where the statute on which the decision was founded provides: \\\"That no person or persons shall hereafter sue, have, or maintain any writ of ejectment, or other action for the recovery of the possession, title, or claim of, to, or for any land, tenement, or other hereditament, but within twenty-one years next after the right of such action or suits shall have accrued.\\\" As-remarked by the court in that case: \\\" It will be seen that it is not only the action of ejectment which is barred by this statute,, but every other action for the recovery of the possession, title, or claim to any land.\\\" It is readily seen that such statutes, or-statutes of other terms of like import, may fairly be construed to apply as a bar to the action for dower.\\nIt is contended by counsel for respondent that if section 29 is inapplicable to the action for assignment of dower, section 47 of the Code would apply and bar the action in three years from the time the right accrued.\\nTitle 3 of the Compiled Statutes is devoted to the subject of limitation of actions. Chapter 2 of this title prescribes limitations of actions concerning real property. Chapter 3 of said title appears to be intended to apply only to actions concerning other rights of action than those relating to real property; for the first section of chapter 3 provides for \\\" actions other than those for the recovery of real property as follows,\\\" etc. Section 47 of the same chapter provides as follows: \\\"An action for relief not hereinbefore provided for must be commenced within three years after the cause of action shall have accrued.\\\"\\nWe do not think this section was intended by the legislature to apply to actions concerning real property. In the case of Robinson v. Ware, 94 Mo. 678, wherein the Supreme Court of Missouri completely reverses the construction of the statute as held in Littleton v. Patterson, supra, the court considers the bearing of a clause in the Missouri statute like section 47 of our Code, which the court termed a \\\"catch-all clause.\\\" In one part of the opinion it is said: \\\"We believe such an action (action for dower) would have been held to be barred in the case of Littleton v. Patterson, either by the first section of the Act of 1847, or this general clause of the Act of 1849, had the court been called upon to consider the statute as a whole; but the cause there appears to have accrued before the adoption of the act of 1849. Which of the sections would have been applied is not material at this time in this case.\\\" Farther along in the opinion referring to the \\\" catch-all clause \\\" it is said the same reads: \\\"Civil actions, e other than for the recovery of real property/ can only be commenced within the time prescribed in sections which follow. The words just quoted exclude actions for the recovery of real estate, and hence the general clause of section 3229 cannot be held to apply to an action for dower.\\\" Under such contradictory views, we cannot see why the court, in Littleton v. Patterson, would have held the case barred \\\"by the general clause in the act of 1849,\\\" namely, the \\\" catch-all clause.\\\"\\nIt appears that the only use made of that clause by the court, in the case of Robinson v. Ware, supra, was to draw therefrom what the court deemed an indication of \\\"legislative policy\\\" to place a limitation on all actions; and hence that the same section, which had in Littleton v. Patterson been held not to apply to dower, should be held to apply as a bar thereto. Was not the silence of successive legislatures for twenty-six years, and the failure to give the courts a statute which would clearly place a different limitation on the action for dower, a tacit approval of the construction given in Littleton v. Patterson? Is not that kind of indication of \\\"legislative policy\\\" far more direct and satisfactory than anything suggested in Robinson v. Ware, supra?\\nThere is a limitation on dower, that is, the natural limitation on the life estate. It may be that the legislature is satisfied with that limitation, and it may in its wisdom fix a different limitation thereon. But at present we find no statute barring the right of the widow to prosecute her action for the assignment of dower.\\nIt is contended by counsel for respondent that every civil action is limited to a certain period by our statute, either by a specific provision, or by the general terms of section 47. We do not think that proposition will hold in all cases. For instance, it could be argued with as much force that the action for divorce, on the ground of desertion, or habitual drunkenness, or conviction of an infamous crime, is in all its attributes as much a civil action as is the suit under the statute for assignment of dower.\\nBoth actions are given by statute, and the procedure of the Civil Code is made applicable, except as otherwise provided in the respective acts.. The action for divorce is not specified in the general Statutes of Limitation; and if barred it would be by the sweeping terms of section 47. But we do not think it is generally held by the bench, or profession, that an action for divorce on the ground that one spouse had been convicted of an infamous crime would be barred by section 47, if the complaining spouse should forbear, for three and a half years for instance after the conviction, to proceed for divorce. Although it could not be said that the right to the relief prayed for did not accrue at the time of conviction.\\nOf course the court of chancery may refuse to entertain a .stale complaint for divorce, for some causes, but that bar is not placed on the general Statute of Limitation.\\nIt is ordered that the judgment of the trial court be reversed at costs of respondent, and remanded for further proceedings.\\nBlake, C. J., and De Witt, J., concur.\"}"

mont/2299397.json

@@ -0,0 +1 @@
+"{\"id\": \"2299397\", \"name\": \"WHITCRAFT et al., Appellants, v. HENDRICKS, Respondent\", \"name_abbreviation\": \"Whitcraft v. Hendricks\", \"decision_date\": \"1901-02-15\", \"docket_number\": \"Nos. 1,470 and 1,471\", \"first_page\": \"565\", \"last_page\": \"565\", \"citations\": \"25 Mont. 565\", \"volume\": \"25\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T19:46:10.686912+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WHITCRAFT et al., Appellants, v. HENDRICKS, Respondent.\", \"head_matter\": \"Nos. 1,470 and 1,471.\\nWHITCRAFT et al., Appellants, v. HENDRICKS, Respondent.\\nAppeal from District Court, Deer Lodge County.\\nMotion to dismiss appeals.\\nDecided February 15, 1901.\\nMr. Edward Scharnikow and Messrs. Toole, Bach & Toole, for Appellants.\", \"word_count\": \"58\", \"char_count\": \"386\", \"text\": \"Per Curiam.\\nAppellants' motion to dismiss these appeals is granted, and the said appeals are hereby dismissed at the cost of appellant.\"}"

mont/2302769.json

@@ -0,0 +1 @@
+"{\"id\": \"2302769\", \"name\": \"GALLATIN LIGHT, POWER AND RAILWAY COMPANY, Appellant, v. CITY OF BOZEMAN et al., Respondents\", \"name_abbreviation\": \"Gallatin Light, Power & Railway Co. v. City of Bozeman\", \"decision_date\": \"1905-03-24\", \"docket_number\": \"No. 2,092\", \"first_page\": \"602\", \"last_page\": \"603\", \"citations\": \"32 Mont. 602\", \"volume\": \"32\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:23:26.180389+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GALLATIN LIGHT, POWER AND RAILWAY COMPANY, Appellant, v. CITY OF BOZEMAN et al., Respondents.\", \"head_matter\": \"No. 2,092.\\nGALLATIN LIGHT, POWER AND RAILWAY COMPANY, Appellant, v. CITY OF BOZEMAN et al., Respondents.\\nAppeal from District Court, Gallatin County; W. B. C. Stewart, Judge.\\nOn motion to dismiss appeal.\\nDecided March 24, 1905.\\nMessrs. Hartman & Hartman, for Appellant.\\nMr. John A. Luce, for Eespondents.\", \"word_count\": \"63\", \"char_count\": \"407\", \"text\": \"Per Curiam.\\nUpon motion of counsel for respective parties, this cause is hereby dismissed as settled.\"}"

mont/2328551.json

@@ -0,0 +1 @@
+"{\"id\": \"2328551\", \"name\": \"STATE ex rel. DANAHER, Appellant, v. RAY, Register of Lands, Respondent\", \"name_abbreviation\": \"State ex rel. Danaher v. Ray\", \"decision_date\": \"1913-06-26\", \"docket_number\": \"No. 3,310\", \"first_page\": \"570\", \"last_page\": \"573\", \"citations\": \"47 Mont. 570\", \"volume\": \"47\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:33:24.272391+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Holloway and Mr. Justice Sanner concur.\", \"parties\": \"STATE ex rel. DANAHER, Appellant, v. RAY, Register of Lands, Respondent.\", \"head_matter\": \"STATE ex rel. DANAHER, Appellant, v. RAY, Register of Lands, Respondent.\\n(No. 3,310.)\\n(Submitted June 10, 1913.\\nDecided June 26, 1913.)\\n[133 Pac. 961.]\\nMandamus \\u2014 Writ Does not Lie, When.\\n1. Mandamus does not lie when the writ will accomplish no beneficial result, as where an official act (the issuance of a certificate of sale of state land by the register of state lands) is sought to be compelled, whieh depends upon the approval or co-operation of a third person (the governor, as president of the board of land commissioners), not a party to the proceeding.\\nAppeal from District Court, Lewis and Clark County; J. Miller Smith, Judge.\\nApplication by tbe state on tbe relation of Mary M. Danaher for writ of mandate to compel F. H. Ray, register of state lands, to issue a certificate of sale of certain lands. From a judgment in favor of defendant, relatrix appeals.\\nAffirmed.\\nMessrs. Wight & Pew, for Appellant, submitted a brief; Mr. Chas. E. Pew argued tbe cause orally.\\nMessrs. Walsh, Nolan & Scallon, and Mr. John B. Clayberg, submitted a brief in behalf of Interveners-Respondents Edgerton et al.; Mr. Wm. Scallon argued tbe cause orally.\", \"word_count\": \"1389\", \"char_count\": \"8038\", \"text\": \"MR. CHIEF JUSTICE BRANTLY\\ndelivered tbe opinion of tbe court.\\nApplication to tbe district court of Lewis and Clark county for mandamus to compel the defendant, as register of lands for tbe state of Montana, to issue and deliver to tbe relatrix a certificate of sale of certain lands described in tbe affidavit, the same being a portion of the lands granted to tbe state by the federal government in aid of tbe common schools, under the Act approved February 22, 1889, commonly called the Enabling Act. It appears from tbe affidavit that at a sale held by tbe defendant on June 27, 1911, under authority conferred upon him by the statute (Sess. Laws 1909, Chap. 147, p. 289), and in conformity with the requirements thereof, the relatrix became the purchaser of the lands in question at the price of ten dollars per acre, paying to the defendant in cash fifteen per cent of the gross price. On July 11, 1911, the sale was approved by the board of land commissioners. The relatrix thereupon became entitled to receive a certificate of purchase. On August 18, 1911, she made demand for the certificate, but the defendant refused to issue it, basing his refusal upon the ground that the sale had been made through inadvertence and' mistake, in that one John Edgerton and other persons had acquired a prior interest in the lands and that they were for this reason not subject to sale. After the defendant had filed his answer, Edger-ton and his associates were permitted to intervene by answer and set up their alleged rights. Thereafter the controversy was submitted to the court upon an agreed statement of facts. The court held that the relatrix was not entitled to relief and rendered judgment accordingly. The relatrix has appealed.\\nThe agreed statement sets forth in detail the facts upon which the parties base their respective claims. It appears therefrom that there was at the time the application was heard a contest pending before the state contest board, the issue being whether the relatrix has a prior right. Her counsel argue that having become the purchaser at a sale which was in all respects regular, she is entitled to a certificate without regard to any supposed rights Edgerton and his associates may have acquired in the lands prior to her purchase. In other words, upon the completion of the sale and receipt of payment, it is insisted, it became the ministerial duty of defendant to issue the certificate, leaving Edgerton and his associates to have determined, in an appropriate action, any rights which they may have. No appearance has been made in this court by the defendant. Counsel for the interveners argue that under the provisions of the statute supra, the authorities of the state, consisting of the board of land commissioners, the contest board and other state officers, are under the statute clothed with exclusive jurisdiction to try all controversies involving disputed rights to land purchased from the state, and that their proceedings are not, directly or indirectly, subject to control by the courts prior to issuance of patent. Which of these contentions ought to be sustained we shall not undertake to determine. Upon the facts stated the action of the district court in denying the writ was correct.\\nSection 1 of the Act constitutes the board of land commissioners, consisting of the governor, superintendent of public instruction, secretary of state and attorney general, and vests in it exclusive control and management of all lands belonging to the state. Section 2 designates the governor as president of the board. Section 19 creates a contest board. The register is made the chief officer of this board. Section 43 provides: \\\"Whenever any purchaser of the state lands has paid fifteen per cent of the purchase price of the land bought, and delivered to the register of state lands the bond herein required to be given, the register will make out a certificate of purchase and deliver the same to the purchaser, which certificate shall contain a description of the land purchased, the sum paid, the amount remaining due, the date at which each of the deferred payments falls due, and the amount of each, and shall be signed by the governor, as the president of the state board of land commissioners, and by the register, and a record of the same shall be kept in a suitable book.\\\" It will be observed that while this section enjoins upon the register the duty to issue the certificate, it must be signed by the governor as president of the board of land commissioners. If it does not bear the signature of this officer it is not complete, nor is it effective for any purpose. In effect, therefore, the duty enjoined by this section is made the joint duty of the register and the governor as president of the board of land commissioners. Neither can act effectively without the other. Now, it does not appear from the statement of facts or otherwise from the record, that the certificate has been executed, ready for delivery by the register. It is stipulated merely that on August 18, 1911, the relatrix made written demand upon the register for the issuance and delivery of the certificate and that he then and there refused to issue and deliver it. It does not appear that any demand was ever made upon the governor. The issuance of the writ would therefore not have given the relatrix any effective relief, for though the register were compelled to perform the duty enjoined upon him so far as he might, the governor would be under no compulsion to act with him and would be free to refuse to add his signature. Thus the relatrix would have gained no substantial benefit.\\nRehearing denied September 15, 1913.\\nThe rule is well settled that when the writ will accomplish no beneficial result it will be denied. (Gay v. Torrance, 145 Cal. 144, 78 Pac. 540; Boyne v. Ryan, 100 Cal. 265, 34 Pac. 707; Lamar v. Wilkins, 28 Ark. 34; State v. Towers, 71 Conn. 657, 42 Atl. 1083; State ex rel. Dixon v. Internal Imp. Fund, 20 Fla. 402; Stacy v. Hammond, 96 Ga. 125, 23 S. E. 77; People ex rel. Green v. Cook County, 176 Ill. 576, 52 N. E. 334; Brownsville Taxing Dist. v. Loague, 120 U. S. 493, 32 L. Ed. 780, 9 Sup. Ct. Rep. 327; 26 Cyc. 167; Bailey on Habeas Corpus, 781.) The same rule applies where the official act to be performed depends upon the act, approval or co-operation of a third person not a party, even though it is clearly the duty of the defendant to act. (State ex rel. Lacaze v. Cavanac, 30 La. Ann. 237; High on Extraordinary Remedies, 3d ed., sec. 14.)\\nNothing said herein is to be understood as a recognition of the right of third parties to intervene in this character of proceeding. The question whether this right is accorded under the statute on this subject will be determined when a case is presented requiring such determination.\\nThe judgment is affirmed.\\nAffirmed.\\nMr. Justice Holloway and Mr. Justice Sanner concur.\"}"

mont/2372605.json

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+"{\"id\": \"2372605\", \"name\": \"ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY and GARY GLASSING, Defendants and Respondents\", \"name_abbreviation\": \"St. Paul Fire & Marine Insurance v. Allstate Insurance\", \"decision_date\": \"1993-02-19\", \"docket_number\": \"No. 91-564\", \"first_page\": \"47\", \"last_page\": \"54\", \"citations\": \"257 Mont. 47\", \"volume\": \"257\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T00:42:21.671219+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, HARRISON, McDONOUGH and WEBER concur.\", \"parties\": \"ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY and GARY GLASSING, Defendants and Respondents.\", \"head_matter\": \"ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY and GARY GLASSING, Defendants and Respondents.\\nNo. 91-564.\\nSubmitted May 12, 1992.\\nDecided February 19, 1993.\\n50 St.Rep. 154.\\n257 Mont. 47.\\n847 P.2d 705.\\nFor Plaintiff and Appellant: Gary M. Zadick, Mark F. Higgins, Ugrin, Alexander, Zadick & Slovak, Great Falls.\\nFor Defendants and Respondents: Susan P. Roy, Garlington, Lohn and Robinson, Missoula.\", \"word_count\": \"2649\", \"char_count\": \"16190\", \"text\": \"JUSTICE TRIEWEILER\\ndelivered the Opinion of the Court.\\nPlaintiff St. Paul Fire and Marine Insurance Company filed its complaint in the District Court for the Eighth Judicial District in Cascade County to recover amounts paid to its insured pursuant to the underinsured motorist coverage provided by its policy. St. Paul's claim against defendant Gary Glassing was dismissed by the District Court based on that court's conclusion that it lacked personal jurisdiction over Glassing. St. Paul's claim against Allstate Insurance Company was dismissed because of its failure to state an actionable claim against Allstate. From this judgment, St. Paul appeals. We reverse in part and affirm in part.\\nThe issues are:\\n1. Did the District Court have personal jurisdiction over Gary Glassing pursuant to Rule 4B(l)(b), M.R.Civ.P.?\\n2. Is an insurer which provides underinsured motorist coverage a third party entitled to bring a direct claim under Sections 33-18-201 and 33-18-242, MCA, when a primary insurer fails to effectuate prompt and reasonable settlement?\\nFACTUAL BACKGROUND\\nSt. Paul's insured, Ellen Lynn, and Glassing were involved in a motor vehicle collision in Bozeman on June 12, 1985. A personal injury action was filed by Lynn against Glassing in Gallatin County District Court, and on November 17, 1989, judgment was entered in favor of Lynn in the net amount of $95,377.92.\\nAt the time of the underlying motor vehicle collision, St. Paul insured Lynn with a policy which provided coverage in the event that Lynn was injured by an underinsured motorist. At the same time, Allstate insured Glassing against liability resulting from the opera tion of his motor vehicle. However, the limit of Glassing's liability coverage was $50,000.\\nIn the complaint which gave rise to this action, St. Paul alleged that pursuant to its policy of insurance with Lynn, it paid to her the amount of her judgment against Glassing that exceeded Allstate's policy limits. It alleged that the amount of that payment was $51,461.16. St. Paul also alleged two separate claims based upon its payment to Lynn.\\nIn its first cause of action, St. Paul alleged that by virtue of its payment to its insured, it became subrogated both by law and by the terms of its policy with Lynn to her claim against Glassing to the extent of its payment. It sought recovery from Glassing in that amount.\\nIn its second cause of action, St. Paul alleged that on several occasions prior to entry of judgment in favor of Lynn, Allstate refused to settle her claim against Glassing by payment of its policy limits to her. St. Paul alleged that by refusal to pay the policy limits before judgment was entered against Glassing for a greater amount, Allstate breached its obligation to its own insured and to St. Paul, and that as a result, St. Paul was required to pay $51,461.16 to its insured. It sought recovery of that amount, plus interest, from Glassing and from Allstate.\\nAlthough the record is vague regarding dates and specific procedures, it appears that prior to the time this claim was filed in State District Court, a similar or identical claim was filed in the United States District Court for the District of Montana. Before that claim was removed to the State District Court, the Federal District Court dismissed St. Paul's claim against Allstate for the reason that it did not state a claim for which relief could be granted. The parties subsequently stipulated in this case that the prior reding by the Federal District Court would be the law of the case for purposes of the State Court proceeding, and that dismissal of that case could be appealed to the Montana Supreme Court when final judgment was entered in the State District Court.\\nAfter being served with the State Court complaint, Glassing moved to dismiss the claim against him for the reason that the District Court lacked personal jurisdiction over him. In support of that motion, Glassing submitted an affidavit in which he stated that he moved to Minnesota on July 1, 1990, had been working and living there since, and had no plans to return to Montana.\\nOn October 10,1991, the District Court entered its order granting the motion to dismiss Glassing based on lack of personal jurisdiction. The court noted that Glassing moved from Montana to Minnesota on about July 1, 1990, after graduating from Montana State University and that this action was not filed until June 17, 1991. The court concluded that St. Paul's subrogation claim against Glassing arose from the terms of its insurance contract with Lynn and that the claim was not based on any act of the defendant which occurred in Montana. Therefore, the District Court concluded that since the defendant could not be found in Montana for the purpose of establishing general jurisdiction, and did not come within any of the subsections of Rule 4B(1), M.R.Civ.P., there was no basis for asserting personal jurisdiction over him.\\nSt. Paul appeals the dismissal of Glassing in the State District Court and the dismissal of Allstate by the Federal District Court, which by stipulation became part of the final judgment entered in the State District Court.\\nI\\nDid the District Court have personal jurisdiction over Gary Glassing pursuant to Rule 4B(1)(b), M.R.Civ.P.?\\nOn appeal, St. Paul contends that Montana courts have personal jurisdiction over Glassing pursuant to the Montana long-arm statute found in Rule 4B(l)(b), M.R.Civ.P, since its claim is based upon the defendant's tortious conduct committed within this state.\\nGlassing denies that this state has personal jurisdiction over him for two reasons. First, he contends that St. Paul's suit is not based on his tortious conduct, but is based upon a contractual relationship between St. Paul and its insured which permitted St. Paul to pursue a claim for subrogation. Second, Glassing contends that even if his conduct comes within Montana's long-arm statute, it is unreasonable for this state's courts to exercise jurisdiction over him, and plaintiff's claim should be dismissed pursuant to our decision in Simmons v. State (1983), 206 Mont. 264, 670 P.2d 1372.\\nWe conclude that St. Paul's claim against Glassing is based solely upon defendant's commission of acts within the State of Montana which resulted in the accrual of a tort action. While the defendant is correct that St. Paul has a contractual agreement with its insured allowing it to pursue subrogation, the contractual authorization is neither necessary nor the basis for St. Paul's suit against Glassing.\\nWe have previously held that:\\nSubrogation is a device of equity which is designed to compel the ultimate payment of a debt by the one who in justice, equity and good conscience should pay it. Bower v. Tebbs, 132 Mont. 146, 314 P.2d 731 . The theory behind this principle is that absent repayment of the insurer the insured would be unjustly enriched by virtue of recovery from both the insurer and the wrongdoer, or in absence of such double recovery by the insured, the third party would go free despite his legal obligation in connection with [the] loss. [Emphasis added.]\\nSkauge v. Mountain States Tel. & Tel. Co. (1977), 172 Mont. 521, 524-25, 565 P.2d 628, 630.\\nWe have also held that a right to subrogation, such as the one exercised by the plaintiff in this case, is not dependent on the terms of a contract.\\nSubrogation in a legal sense arises upon the fact of payment by the insurer, rather than by contract between the parties. Skauge, 565 P.2d at 630. It is the substitution of another person in place of the creditor, so that the person substituted will succeed to the rights of the creditor in relation to the debt or claim. Skauge, 565 P.2d at 630.\\nMcDonald v. Grassle (1987), 228 Mont. 25, 29, 740 P.2d 1122, 1125.\\nIn this case, St. Paul became substituted for its insured as a matter of law when it paid Ellen Lynn pursuant to its insurance policy with her and is entitled to pursue her right to collect the amount of her judgment against the defendant. However, St. Paul's right to subrogation arises from the judgment entered in favor of its insured against the defendant, and that judgment is a result of the defendant's tortious conduct within the State of Montana.\\nSince the allegations in Count I of St. Paul's complaint are based upon Glassing's tortious conduct committed within the State of Montana, we hold that Rule 4B(l)(b), M.R.Civ.P., permits the exercise of personal jurisdiction over Glassing by the District Court for the conduct complained of in the plaintiff's complaint.\\nIn Simmons, we held that where a nonresident defendant is not \\\"present\\\" within the state for purposes of establishing general jurisdiction, each of the following criteria must be met before personal jurisdiction can be exercised without violating due process:\\n(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking its laws. (2) The claim must be one which arises out of or results from the defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable.\\nSimmons, 670 P.2d at 1378.\\nIt is clear that the first two criteria are satisfied. Glassing committed a tort within Montana and St. Paul's claim results from that tort.\\nWe have held that the following factors should be considered to determine whether the exercise of personal jurisdiction is reasonable:\\n1. The extent of defendant's purposeful interjection into Montana;\\n2. The burden on defendant of defending in Montana;\\n3. The extent of conflict with the sovereignty of defendant's state;\\n4. Montana's interest in adjudicating the dispute;\\n5. The most efficient resolution of the controversy;\\n6. The importance of Montana to plaintiff's interest in convenient and effective relief; and\\n7. The existence of an alternative forum.\\nJackson v. Kroll, Pomerantz and Cameron (1986), 223 Mont. 161, 166, 724 P.2d 717, 721. See Taubler v. Giraud (9th Cir. 1981), 655 F.2d 991, 994; Simmons, 670 P.2d at 1383-85.\\nWe conclude that it is reasonable to exercise personal jurisdiction over Glassing under the circumstances present in this case for several reasons: There is no conflict with Glassing's current state of residence; Montana has a strong interest in adjudicating liability based upon the operation of motor vehicles on its roadways; and the most efficient and convenient forum within which to resolve the issues raised by the plaintiff's pleadings is the State of Montana where the witnesses to the underlying tort are most likely located and where the judgment in the underlying action has been entered.\\nFor these reasons, we conclude that Montana's long-arm statute provides a basis for exercising personal jurisdiction over Glassing and that the exercise of personal jurisdiction under the circumstances in this case is reasonable. The District Court's judgment dismissing plaintiff's complaint against Glassing based on lack of personal jurisdiction is, therefore, reversed.\\nII\\nIs an insurer which provides underinsured motorist coverage a third party entitled to bring a direct claim under Sections 33-18-201 and 33-18-242, MCA, when a primary insurer fails to effectuate prompt and reasonable settlement?\\nSt. Paul next contends that its insured, Ellen Lynn, had a third-party claim against Allstate pursuant to Sections 33-18-201 and -242, MCA, because of Allstate's repeated refusal to settle her claim for its policy limits prior to a jury trial and a verdict in her favor. St. Paul contends that just as it is subrogated by law to Lynn's claim against Glassing, it is an equitable subrogee of Lynn with regard to her statutory third-party claim against Allstate.\\nIn support of its argument, St. Paul cites this Court to numerous opinions from other jurisdictions which have held that where a primary insurance carrier negligently and in bad faith fails to settle a claim against its insured within the insured's primary policy limits, and a judgment is then entered against its insured for an amount greater than the policy limit so that the insured's excess liability carrier becomes responsible for payment of the excess amount, the excess carrier is equitably subrogated to the rights of the insured and entitled to maintain an action for bad faith against the primary carrier. See Continental Casualty Co. v. Reserve Ins. Co. (Minn. 1976), 238 N.W.2d 862; Valentine v. Aetna Ins. Co. (9th Cir. 1977), 564 F.2d 292; Centennial Ins. Co. v. Liberty Mutual Ins. Co. (Ohio 1980), 404 N.E.2d 759.\\nSt. Paul contends that even though it is not an excess liability carrier, the issue is the same, the public policy is the same, and this Court should, therefore, allow equitable subrogation for an underinsurance carrier under the circumstances in this case.\\nThere is merit to St. Paul's argument, and under other circumstances, this Court would consider St. Paul's argument. However, determinative of our holding in this case is the fact that even in the cases relied upon by St. Paul the primary insurer had no independent duty to the excess insurer. The courts which have allowed excess carriers to sue primary carriers for unreasonable refusal to settle claims have allowed them to do so by holding that the excess insurer is equitably subrogated to the rights of the insured against the primary insurer. See, Windt, Insurance Claims and Disputes at 411 and n. 92 (2d ed. 1988). Therefore, even if we were to allow equitable subrogation for an underinsurance carrier against a primary carrier who unreasonably refused to settle a claim within policy limits and thereby exposed the underinsurance carrier to liability for the excess amount of the judgment, the underinsurance carrier has no greater rights than can be asserted by its insured. As we held in McDonald, subrogation is:\\n[T]he substitution of another person in place of the creditor, so that the person substituted will succeed to the rights of the creditor in relation to the debt or claim.\\nMcDonald, 740 P.2d at 1125.\\nPursuant to Rule 202(b)(6), M.R.Evid., we take judicial notice that Lynn sued Allstate for unreasonable refusal to settle her claim against its insured in Cause No. CV-91-11-BU-PGH in the United States District Court for the District of Montana in the Butte Division. Although the particulars of that claim are unknown to this Court, the claim was resolved by stipulation between the parties and Lynn's claim against Allstate was dismissed with prejudice on July 29, 1991. Pursuant to that dismissal, Lynn has no further claim against Allstate, and therefore, there is no claim to which St. Paul can be equitably subrogated.\\nEven though Lynn's claim against Allstate had not been dismissed with prejudice at the time the Federal District Court dismissed St. Paul's claim against Allstate, nor at the time St. Paul subsequently refiled its claim against Allstate in the State District Court, Lynn's subsequent stipulation renders St. Paul's appeal moot.\\nThere is no indication that St. Paul's claim against Allstate is based upon an assignment of any first-party claim that Glassing might have pursuant to Gibson v. Western Fire Insurance Company (1984), 210 Mont. 267, 682 P.2d 725. Therefore, by this decision, we do not determine the merits of any such claim.\\nFor these reasons, we affirm the judgment of the District Court dismissing St. Paul's claim against Allstate in Count II of the plaintiff's complaint. We reverse the District Court's judgment dismissing Count I of the plaintiff's complaint and remand this case to the District Court for further proceedings consistent with this opinion.\\nCHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, HARRISON, McDONOUGH and WEBER concur.\"}"

mont/2373823.json

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+"{\"id\": \"2373823\", \"name\": \"STATE OF MONTANA, Plaintiff, vs. BRIAN WAYNE SPRAY, Defendant\", \"name_abbreviation\": \"State v. Spray\", \"decision_date\": \"1992-10-22\", \"docket_number\": \"NO. 9371\", \"first_page\": \"78\", \"last_page\": \"79\", \"citations\": \"256 Mont. 78\", \"volume\": \"256\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:10.446384+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.\", \"parties\": \"STATE OF MONTANA, Plaintiff, vs. BRIAN WAYNE SPRAY, Defendant.\", \"head_matter\": \"STATE OF MONTANA, Plaintiff, vs. BRIAN WAYNE SPRAY, Defendant.\\nNO. 9371\\nDECISION\", \"word_count\": \"288\", \"char_count\": \"1767\", \"text\": \"On September 20, 1990, the Defendant was sentenced to ten (10) years for Theft; must pay $20 surcharge and as a condition of his parole, the defendant will be required to pay restitution of $1,712.40.\\nOn October 22, 1992, the Defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.\\nThe Defendant was present and was represented by Dan O'Brien, Legal Intern from the Montana Defender Project. The state was not represented\\nBefore 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 if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Divisions The defendant acknowledged that he understood this and stated that he wished to proceed.\\nDATED this 22nd day of October, 1992.\\nAfter careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed as originally imposed.\\nThe reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.\\nHon. Ed McLean, Chairman, Hon. Thomas M. McKittrick and Hon. G. Todd Baugh, Judges.\\nThe Sentence Review Board wishes to thank Dan O'Brien, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.\"}"

mont/2409280.json

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+"{\"id\": \"2409280\", \"name\": \"STATE, Respondent, v. SMITH, Appellant\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1925-12-01\", \"docket_number\": \"No. 5,793\", \"first_page\": \"22\", \"last_page\": \"28\", \"citations\": \"75 Mont. 22\", \"volume\": \"75\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:20:21.778543+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief \\\"Justice Callaway and Associate Justices Holloway, Galen and Stark concur.\", \"parties\": \"STATE, Respondent, v. SMITH, Appellant.\", \"head_matter\": \"STATE, Respondent, v. SMITH, Appellant.\\n(No. 5,793.)\\n(Submitted November 23, 1925.\\nDecided December 1, 1925.)\\n[241 Pac. 522.]\\nMessrs. Smith & Kelly, for Appellant.\\nMr. L. A. Foot, Attorney General, and Mr. S. B. Foot, Assistant Attorney General, for the State.\", \"word_count\": \"1309\", \"char_count\": \"7681\", \"text\": \"MR. JUSTICE MATTHEWS\\ndelivered the opinion of the court.\\nThe defendant, John A. Smith, has appealed from the judgment pronounced on his conviction of the crime of giving intoxicating liquor to minors.\\nThe evidence adduced on the trial, briefly stated, is as follows: One Percey Williams testified that on the morning of March 7, 1925, at the request- of defendant, he went from Virginia City to Laurin, where he procured from a person to whom he was directed by defendant, a one-gallon jug of moonshine whisky, placing it in a traveling bag furnished by defendant for that purpose and charging the whisky to defendant, and that, on his return to Virginia City, he was accompanied to defendant's cabin by one Joe Judge. Both Williams and Judge testified that Williams then delivered the jug to defendant, who opened it, took a drink himself, and gave each of the witnesses a drink and put the jug away; whereupon the witnesses left the cabin. Each of these witnesses testified that he returned to defendant's cabin in the afternoon, brought no liquor with him, but proceeded to drink with defendant from his supply; that while they were thus engaged, one Robert Allen, a boy seventeen years of age, was seen approaching, whereupon defendant stated that he wanted to see young Allen, and requested Williams to call the boy in. Allen entered in response to the call, and thereafter drank from a bottle sitting on the table. Later defendant requested young Allen to go after one Joe Gillipsie, a youth of twenty years; Gillipsie was brought to the cabin, and the whole party continued drinking. When the first bottle was emptied, a second was produced from the mattress at the foot of defendant's bed, and when this was emptied defendant took it to a rear room and returned it to the table full of moonshine whisky stating, \\\"There is plenty more of it.\\\" Both boys hecame drunk, and were expelled from the cabin by defendant. After an investigation was instituted, the defendant accused each of the boys of informing against him.\\nDefendant did not deny the testimony concerning the drinking party, but denied that he, personally, gave liquor to the boys, and denied that he sent Williams for the jug of liquor or instructed him to call young Allen to the cabin; he contended that the liquor belonged to Williams. The defense introduced some evidence as to defendant's good reputation in the community ; young Allen, then, on rebuttal, told of another occasion when defendant invited him to the cabin and gave him four drinks of moonshine whisky.\\nDefendant makes bnt two specifications of error, to-wit: (1) The evidence is insufficient to support the judgment, in that there is no evidence tending to connect the defendant with the crime charged, other than that of Percy Williams, an accomplice. (2) The court erred in refusing to instruct the jury, on defendant's request, to the effect that a defendant cannot be convicted upon the uncorroborated evidence of an accomplice.\\n1. Defendant's contention, as to the first assignment, is that, as there is no direct evidence showing that defendant actually handed the liquor to Allen, it devolved upon the state to prove that defendant was the owner of the whisky, and that this proof was furnished from the lips of Williams, an accomplice in procuring the liquor. This argument is fallacious; the procuration of the liquor was an independent transaction, and was closed when Williams left the cabin after delivery to defendant.\\nThere is no intimation that Williams had any knowledge that defendant intended to give any portion of the liquor to minors, and if in fact the defendant did give liquor to a minor, it was immaterial whether, at the time, he was the owner of the liquor so given or was merely entertaining at another's.expense. The only question for determination was: Did Smith give to a minor? On this question, while no witness testified that defendant handed liquor to young Allen, it was clearly shown that he was the host at a drinking party in his home; he had liquor in his bed as well as on his table, and a main supply in a rear room over which he had dominion and control; for, when the supply on the table was exhausted, he refilled the bottle and replaced it within reach of his- young guests, stating that there was \\\"plenty more of it.\\\" Thus there was sufficient evidence to warrant a verdict of guilty of the crime charged had the man Williams not appeared at the trial at all.\\n2. With reference to whether Williams was an accomplice of the defendant in giving liquor to young Allen, had the evidence shown that defendant directed Williams to call Allen in for the purpose of giving him a drink and that Williams had\\nobeyed tbe direction, intending that Allen should join the party, Williams might be equally guilty with defendant and, hence, an accomplice. But, according to the evidence, all that was said by defendant was that he wanted to see Allen, who was then called in by Williams. This testimony falls short of proof constituting Williams an accomplice of the defendant in the commission of the crime charged in the information. \\\"The test to determine whether one is an accomplice is to ascertain whether he could be indicted for the offense for which the accused is being tried\\\" (12 Cyc. 445), or, as was stated by this court, \\\"To constitute a witness for the state an 'accomplice' he must have entertained a criminal intent common with that which moved the defendant to commit the crime with which he stood charged, or, not having been present at its commission, must have advised and encouraged it.\\\" (State v. Slothower, 56 Mont. 230, 182 Pac. 270; State ex rel. Webb v. District Court, 37 Mont. 191, 15 Ann. Cas. 743, 95 Pac. 593.) Mere presence, acquiescence or silence, in the absence of a duty to act, is not enough, no matter how reprehensible it may be, to constitute one an accomplice. (1 R. C. L. 157, and cases cited.)\\n3. Even conceding that Williams was an accomplice, the evidence was amply sufficient to justify a conviction under the well-known rule as to corroboration, to-wit, the corroboration is sufficient if \\\"unaided by the testimony of the accomplice, it tends to connect the defendant with the commission of the offense.\\\" (State v. Bolton, 65 Mont. 74, 212 Pac. 504; State v. Biggs, 45 Mont. 400, 123 Pac. 410; State v. Stevenson, 26 Mont. 332, 67 Pac. 1001.)\\n4. The question as to whether a witness for the state is an accomplice is \\u2014 unless such fact is undisputed \\u2014 for the jury, under proper instruction by the court (State v. Slothower, above), and where the evidence is conflicting or doubtful, either as to this fact or as to corroboration, the court should not invade the province of the jury. (16 C. J. 947.) The instruction requested was merely a general rule of law as to corroboration, based upon section 11988, Revised Codes of 1921, without preliminary instruction as to what constitutes a witness an accomplice, or accompanied by an instruction as to what corroboration would take the case out of the rule. Under the case as made, such an instruction was unnecessary, would have served no good purpose, and might have tended to confuse, rather than to enlighten, the jury, and therefore its refusal did not constitute prejudicial error.\\nNo prejudicial error appearing in the record, the judgment is affirmed.\\nAffirmed.\\nMr. Chief \\\"Justice Callaway and Associate Justices Holloway, Galen and Stark concur.\"}"

mont/2443839.json

@@ -0,0 +1 @@
+"{\"id\": \"2443839\", \"name\": \"STATE OF MONTANA, Plaintiff and Respondent, v. FLOYD C. LONDON, Defendant and Appellant\", \"name_abbreviation\": \"State v. London\", \"decision_date\": \"1956-08-15\", \"docket_number\": \"No. 9721\", \"first_page\": \"626\", \"last_page\": \"626\", \"citations\": \"130 Mont. 626\", \"volume\": \"130\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:39.116290+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF MONTANA, Plaintiff and Respondent, v. FLOYD C. LONDON, Defendant and Appellant.\", \"head_matter\": \"No. 9721.\\nSTATE OF MONTANA, Plaintiff and Respondent, v. FLOYD C. LONDON, Defendant and Appellant.\\n300 Pac. (2d) 521.\\nDecided Aug. 15, 1956.\\nFranklin S. Longan, Billings, Raymond Hildebrand, Glendive, for appellant.\\nArnold H. Olsen, Atty. Gen., and Lyman J. Hall, Asst. Atty. Gen., B. Miles Larson, Co. Atty., Circle, Roland V. Colgrove, Spec. Asst. Atty. Gen., Miles City, for respondent.\", \"word_count\": \"90\", \"char_count\": \"551\", \"text\": \"Per Curiam.\\nIt is ordered that the application of the appellant Floyd C. London for a certificate of probable cause and other relief, be and the same is denied.\"}"

mont/2449976.json

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+"{\"id\": \"2449976\", \"name\": \"ROBERT J. STRNOD, Plaintiff and Respondent, v. ANGELO J. ABADIE and TRAVELERS INSURANCE COMPANY, Defendants and Appellants\", \"name_abbreviation\": \"Strnod v. Abadie\", \"decision_date\": \"1962-11-07\", \"docket_number\": \"No. 10404\", \"first_page\": \"224\", \"last_page\": \"229\", \"citations\": \"141 Mont. 224\", \"volume\": \"141\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T19:24:42.033574+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. JUSTICES ADAIR, CASTLES, JOHN C. HARRISON, and the HONORABLE CHARLES B. SANDE, District Judge, sitting in place of MR. JUSTICE DOYLE concur.\", \"parties\": \"ROBERT J. STRNOD, Plaintiff and Respondent, v. ANGELO J. ABADIE and TRAVELERS INSURANCE COMPANY, Defendants and Appellants.\", \"head_matter\": \"ROBERT J. STRNOD, Plaintiff and Respondent, v. ANGELO J. ABADIE and TRAVELERS INSURANCE COMPANY, Defendants and Appellants.\\nNo. 10404\\nSubmitted September 5, 1962.\\nDecided November 7, 1962.\\nRehearing denied December 19, 1962.\\n376 P.2d 730\\nToomey & Hughes, George T. Bennett (argued orally), Helena, for appellants.\\nJoseph P. Hennessey (argued orally), Billings, Doepker & Hennessey, Mark J. Doepker (argued orally), Butte, for respondent.\", \"word_count\": \"1503\", \"char_count\": \"9111\", \"text\": \"MR. CHIEF JUSTICE JAMES T. HARRISON\\ndelivered the Opinion of the Court.\\nThis is an appeal from an order of the district court for Silver Bow County denying defendant's motion to open and set aside a default judgment.\\nThe cause of action arose from an automobile accident which occurred on October 12, 1955, near Santa Ana, California. Plaintiff Strnod was a passenger in the car driven by'defendant Abadie, who is not and never has been a resident of Montana.\\nThe original complaint was filed on October 9, 1956, on behalf of Robert Strnod by his guardian ad litem, Louis F. Strnod, in the district court of Silver Bow County, in which complaint Travelers Insurance Company and Angelo J. Abadie were named as defendants. Through their counsel of record, Toomey & Hughes, defendants interposed separate demurrers to the complaint; the demurrers were overruled and defendants then filed a joint answer to the complaint on August 20, 1957.\\nOn September 30, 1959, plaintiff moved for leave to file an amended complaint. Hearing on this motion ivas set for October 9, 1959, then continued to October 23, 1959, and then continued again to October 30, 1959, at which time the district court granted plaintiff's motion. Although they had notice of the motion for leave to file an amended complaint and a copy of the proposed amended complaint was served upon them, defendants neither appeared personally nor through counsel on any of the above dates to resist plaintiff's motion.\\nPlaintiff's amended complaint naming Angelo J. Abadie as the sole defendant was filed in the district court on November 13, 1959. This amended complaint was identical to the one served on Toomey & Hughes, defendant Abadie's attorneys of record, along with the motion for leave to file it.\\nOn April 28, 1960, default was taken against defendant Abadie for his failure to appear, answer, or otherwise plead, and a judgment for $6,398 entered against him on the same day.\\nThen, on June 10, 1960, plaintiff Robert J. Strnod, who had gained majority, commenced suit against Travelers Indemnity Company, a Corporation, and Angelo J. Abadie on the default judgment rendered against Abadie on April 28, 1960.\\nOn December 15, 1960, Toomey & Hughes, representing Abadie, moved to open and set aside the default judgment and allow defendant to appear by answer to defend against the amended complaint. The foregoing motion was overruled on October 13, 1961, and this ruling forms the basis for this appeal.\\nPrior to considering the sole issue of whether or not the district court abused its discretion by refusing to open the default, we would reiterate certain basic principles that have long guided 'this court when considering default judgments. In Reynolds v. Gladys Belle Oil Co., 75 Mont. 332, 341, 243 P. 576, 579 (1926), this court stated:\\n\\\" [S]ince 'it is the policy of the law to have every litigated ease tried on its merits, ' judgments by default are not favored. [Citing cases.] In furtherance of justice, trial courts should, in applying the above statute [R.C.M.1947, \\u00a7 93-3905] to a given case, maintain and exercise that liberal spirit which prompted the Legislature to grant them this discretionary power, and, while this court will disturb the action of a trial court in opening default only in exceptional cases, 'no great abuse of discretion by the trial court in refusing to set aside a default need be shown to warrant a reversal.' [Citing cases.] It is therefore apparent that an abase of discretion may be made 'manifest' in a case where the court has refused to open a default, by a showing which would not be so considered in a case wherein the court has granted such a motion.\\\"\\nAt the outset, it should be noted that many procedural statutes which control this case have either been repealed, superseded, or changed by the new Rules of Civil Procedure, which became effective January 1, 1962. (See R.C.M.1947, \\u00a7 93-2701-1 to 93-2711-7.)\\nIn this state a statutory method is provided for opening a default judgment. In addition to broadly empowering the district courts to allow amendments to pleadings in the furtherance of justice, R.C.M.1947, \\u00a7 93-3905, also provides:\\n\\\"[The district court] may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.\\\" Emphasis supplied.\\nIn the case at bar, defendant Abadie's default was taken and judgment entered on April 28, 1960. Not until December 15, 1960, a date well beyond six months after default was entered, did defendant move to open the default. If defendant did not know that the default was entered on April 28, 1960, he was certainly made aware of that fact by virtue of the complaint filed against Travelers Indemnity Company and Angelo J. Abadie on June 10, 1960, which complaint was based on the default entered against Abadie. Even with this knowledge, defendant chose not to move to open the default until December 15, 1960.\\nLiberality has always been the watchword of this court in its consideration of default judgments, however, we cannot ignore clear statutory mandates. We must therefore hold that the order of the district court denying defendant's motion to open and set aside the default judgment against defendant Abadie is correct because defendant's motion was not timely under the provisions of R.C.M.1947, \\u00a7 93-3905.\\nBut, defendant asserts he is entitled to rely upon the latter portion of R.C.M.1947, \\u00a7 93-3905, which reads as follows: \\\"When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal repreresentative, at any time within one year after the rendition of the judgment in such action, to answer to the merits of the original action.\\\"\\nFurther, defendant cites us to R.C.M.1947, \\u00a7 93-3304, which states:\\n\\\"If the complaint is amended, a copy of the amendments must be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon defendants affected thereby. \\\"\\nTaking the two foregoing sections together, it is defendant 's contention that service of the amended complaint is tantamount to the service of process which is required to obtain jurisdiction. In support of this, defendant cites us to the ruling of this court in Ben Kress Nursery Co. v. Oregon Nursery Co., 45 Mont. 494, 496, 124 P. 475, 476 (1912), wherein this court stated: ' ' [W] here an amended complaint is filed, summons is not served, and, unless the defendant receives a copy of the amended pleading, he is without notice.\\\" Although correct, the rule of the Ben Kress Nursery ease, supra, has no application to the case now under consideration. In the for mer case, the complaint was amended as a matter of right before defendant had appeared and before the time for appearance had expired; whereas in the instant case, the complaint was amended after the cause was at issue because the defendant had personally appeared through Toomey & Hughes and had answered the original complaint.\\nWe have had occasion to consider that portion of section 93-3905 relied upon by the defendant in the recent ease of Holen v. Phelps, 131 Mont. 146, 147, 308 P.2d 624 (1957), wherein the movents to open a default in a quiet title action were not residents of Montana, never were served with any papers in the action, and never appeared personally, nor through counsel to answer the complaint. Certainly, they were entitled to proceed under that portion of section 93-3905, which allows answer within one year after the rendition of the judgment. That section was meant to cover precisely the type of situation as presented by the Holen case, but it was not meant to cover the situation presented by the case at bar where the district court acquired jurisdiction over defendant Abadie when he voluntarily appeared to answer the original complaint through counsel. Such voluntary appearance is equivalent to personal service of the summons and a copy of the complaint upon him. R.C.M.1947, \\u00a7 93-3019.\\nSince defendant did not move to open the default within six months after its rendition, the right to do so is now lost. We therefore affirm the order of the district court.\\nMR. JUSTICES ADAIR, CASTLES, JOHN C. HARRISON, and the HONORABLE CHARLES B. SANDE, District Judge, sitting in place of MR. JUSTICE DOYLE concur.\"}"

mont/2460695.json

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+"{\"id\": \"2460695\", \"name\": \"CONSUMER UNITED INSURANCE COMPANY, a foreign corporation, Plaintiff and Respondent, v. ROGER JOHN SYVERSON, Defendant and Appellant\", \"name_abbreviation\": \"Consumer United Insurance v. Syverson\", \"decision_date\": \"1987-06-11\", \"docket_number\": \"No. 86-577\", \"first_page\": \"188\", \"last_page\": \"193\", \"citations\": \"227 Mont. 188\", \"volume\": \"227\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T20:13:41.104511+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT, and HON. PETER L. RAPKOCH, District Judge, sitting for MR. JUSTICE MORRISON, concur.\", \"parties\": \"CONSUMER UNITED INSURANCE COMPANY, a foreign corporation, Plaintiff and Respondent, v. ROGER JOHN SYVERSON, Defendant and Appellant.\", \"head_matter\": \"CONSUMER UNITED INSURANCE COMPANY, a foreign corporation, Plaintiff and Respondent, v. ROGER JOHN SYVERSON, Defendant and Appellant.\\nNo. 86-577.\\nSubmitted May 1, 1987.\\nDecided June 11, 1987.\\n738 P.2d 110.\\nLandoe, Brown, Planalp, Kommers & Johnstone; Gene I. Brown argued, Bozeman, for defendant and appellant.\\nPoore, Roth & Robinson; John P. Davis argued, Butte, for plaintiff and respondent.\", \"word_count\": \"2008\", \"char_count\": \"12636\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the Opinion of the Court.\\nWe determine here that the tests of \\\"traditional notions of fair play and substantial justice\\\" (International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95) are met to establish jurisdiction of a nonresident defendant in the Montana court stemming from a bank account in controversy between Consumers United Insurance Company (Consumers) and Roger John Syverson (Syverson).\\nConsumers, a Washington, D.C. corporation, brought suit in the District Court, Eighteenth Judicial District, Gallatin County, against Syverson, a Texas resident, by filing a complaint alleging Syverson, while an officer of Consumers, had made unauthorized loans of Consumers' funds to third persons and had accepted \\\"kick-backs\\\" or unauthorized commissions from the borrowing third persons. Consumers further claimed that the unauthorized funds had been deposited through wire transfer by Syverson in First Citizens Bank of Bozeman, Montana (not a party to this action). Consumers prayed for judgment covering the unauthorized funds and further damages, or in the alternative, a preliminary injunction or restraining order conserving the deposited funds pending the action. Consumers also sought a declaration that the deposits were subject to a constructive trust in favor of Consumers.\\nOn receiving the complaint, the District Court entered a temporary restraining order and show cause order addressed to Syverson. He appeared and moved to dismiss the action on the grounds that the District Court lacked jurisdiction of the action and his person.\\nAll sides concede that Syverson has \\\"not set foot in Montana;\\\" that Consumers has no contact within Montana; that an action is presently pending in the Texas courts between Consumers and Syverson over the same controversy. The District Court did determine, upon evidence, that the deposited funds in the Bozeman bank are traceable to the claimed unauthorized commissions or kick-backs received by Syverson while acting as an officer of Consumers. No other contact between Syverson and the forum state, Montana, appears in this case.\\nThe District Court, after hearing, entered judgment requiring (1) the funds on deposit in the Bozeman bank be retained (or ihvested by stipulation of the parties); (2) that upon receipt of a certified judgment from the Texas court, the deposited funds be disbursed in accordance with the Texas judgment to the prevailing party; and, (3) a sufficient bond of Consumers to abide the Texas result. The Montana judgment is final but without prejudice as to the claims of either party as between them personally.\\nSyverson has appealed the judgment to this Court again on the grounds that the Montana courts have no jurisdiction over the person of Syverson nor the funds deposited in the Bozeman bank.\\nImmediately brought into play by the facts of this case is a consideration of the jurisdiction, if any, of Montana state courts arising from a wire deposit of funds in a Montana bank by a nonresident defendant owner.\\nThe complete answer is found in Shaffer v. Heitner (1977), 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683. In that case, Heitner, a nonresident of Delaware, filed a shareholders derivative suit in a Delaware state court, naming as defendants the Greyhound Corporation and its subsidiary and 28 present or former corporate officers or directors. Heitner alleged that the individual defendants had violated their duties to the Greyhound Corporation by causing it and its subsidiary to engage in actions which occurred in Oregon that resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously Heitner, under a Delaware statute, filed a motion for sequestration of the Delaware corporate property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants and various corporate rights of defendants. Under the Delaware statute, a sequestration order was issued by the Delaware state court pursuant to which shares and options belonging to 21 defendants were \\\"seized\\\" and \\\"stop transfer\\\" orders were placed on the corporate books. Under the Delaware statute, the sequestration would remain in eifect as to the nonresidents, to be released when the defendants came into the action by way of general appearance, thus completely subjecting themselves to the jurisdiction of the Delaware court.\\nThe nonresident defendants appeared speci\\u00e1lly in the Delaware state court, seeking to quash service of process and to vacate the sequestration order, contending that the ex parte sequestration procedure did not accord them due process, that the property seized was not capable of attachment in Delaware and that they, the individual nonresident defendants, did not have sufficient contacts with Delaware to sustain jurisdiction of Delaware state courts under the rule of International Shoe, supra.\\nThe Del\\u00e1ware Court of Chancery asserted quasi in rem jurisdiction which the Delaware Supreme Court affirmed, ruling out the holding of International Shoe:\\n\\\"There are significant constitutional questions at issue here but we say at once that we do not deem the rule of International Shoe to be one of them . The reason, of course, is that jurisdiction under Section 366 [the Delaware sequestration statute] remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. Section 169 the 'situs of the ownership of the capital stock of all corporations existing under the laws of this state . . . [is] in this State', and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, [Citations omitted] it has done so and the presence thereof provides the foundation for Section 366 in this case.\\\"\\nGreyhound Corp. v. Heitner (Del. 1976), 361 A.2d 225, 229.\\nAs might be expected, the United States Supreme Court held that jurisdiction of the nonresident defendants could not be acquired in Delaware under its sequestration statute, saying:\\n\\\"The Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants. If it exists, that jurisdiction must have some other foundation.\\\"\\nShaffer, 433 U.S. at 213, 97 S.Ct. at 2584, 53 L.Ed.2d at 703.\\nThe corollary to the foregoing statement by the United States Supreme Court is that if the property in the state is the subject matter of the litigation or if it is related to the underlying cause of actions between the parties, jurisdiction over the nonresident owner could be acquired by the state court. The United States Supreme Court in Shaffer made the corollary clear, although the Delaware statute was held unconstitutional.\\nThe Supreme Court in Shaffer noted its holdings in the history of state court jurisdiction over nonresident defendants in in personam, in rem and quasi in rem actions from Pennoyer v. Neff (1877), 95 U.S. (5 Otto) 714, 714, 24 L.Ed. 565, down to International Shoe. It noted that International Shoe departed from Pennoyer in that a state court could subject a nonresident defendant to a judgment in personam even though the defendant was not present within the territory of the forum, but had certain minimum contacts with it such that the maintenance of the suit did not offend \\\"traditional notions of fair play and substantial justice.\\\" Shaffer, 433 U.S. at 203, 97 S.Ct. at 2579, 53 L.Ed.2d at 697. \\\"Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction.\\\" Shaffer, 433 U.S. at 204, 97 S.Ct. at 2580, 53 L.Ed.2d at 698.\\nNot touched by International Shoe was the status of state court judgments over nonresident defendants based on jurisdiction in rem or quasi in rem. The Supreme Court in Shaffer questioned whether the presence of property in the state, standing alone, gave the state jurisdiction to adjudicate owner's rights to the property regardless of the relationship of the property or the underlying dispute and the property owner to the forum. Shaffer, 433 U.S. at 205, 97 S.Ct. at 2580, 53 L.Ed.2d at 698. Recognizing that an adverse judgment in rem directly affects the property owner by divesting him of his rights before the court, the Supreme Court decided it was time to consider whether the standard of fairness and substantial justice set forth in International Shoe should govern actions in rem as well as in personam:\\n\\\"The case for applying to jurisdiction in rem the same test of 'fair play and substantial justice' as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that '[t]he phrase, \\\"judicial jurisdiction over a thing,\\\" is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.' Restatement (Second) of Conflict of Laws Section 56, Introductory Note (1971) (hereafter Restatement). This recognition leads to the conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising 'jurisdiction over the interests of persons in a thing.' The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum-contacts standard elucidated in International Shoe.\\nShaffer, 433 U.S. at 207, 97 S.Ct. at 2581, 53 L.Ed.2d at 699-670.\\nThe Supreme Court in Shaffer recognized that difficulties may arise in applying International Shoe to jurisdiction quasi in rem. It solved, the difficulty by stating that if the presence of property in a state was to be the basis of jurisdiction in that state for a judgment against a nonresident defendant, the property in the state must be the subject of the action or related to the underlying controversy.\\nIn the case at bar, we have clearly an item of personal property, though intangible, that is related to the subject in controversy, and is in fact the subject of the controversy. The District Court here specifically found that the deposited funds in the Bozeman bank were traceable to the alleged claims of kick-back asserted by Consumers.\\nApplying the International Shoe factors to this case, as we must under Shaffer, we examine the relationship among the defendant, the forum, and the litigation to determine whether these factors meet the test of minimum contacts so as not to offend traditional notions of fair play and substantial justice. In the case at bar, the test is clearly met. There is a positive nexus between Syverson, who caused the funds to be deposited in his name in Montana, the forum, where the deposits are located, and the litigation, which concerns ownership of the deposits. Moreover, the judgment of the District Court supports traditional notions of fair play and substantial justice by effectively making the Bozeman bank a stakeholder of the deposited funds biding the determination of the controversy in the Texas courts. Syverson, a resident of Texas, can have no objection to the resolution of the underlying controversy in his home state.\\nWe note that the decision of this Court in Gassert v. Strong (1908), 38 Mont. 18, 98 P. 497, which was decided under principles of quasi in rem, following Pennoyer, would be the same if examined under the principles of International Shoe and Shaffer.\\nAccordingly, we affirm the judgment of the District Court in this case. Because of this affirmance, discussion of the other issues raised by the parties is unnecessary.\\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT, and HON. PETER L. RAPKOCH, District Judge, sitting for MR. JUSTICE MORRISON, concur.\"}"

mont/2461607.json

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+"{\"id\": \"2461607\", \"name\": \"FRED W. MAJERS and Cecila Majers, Donald R. Abrahamson and Louine E. Abrahamson, Thomas Tillman and Thomas Orcutt, Plaintiffs and Respondents, v. The SHINING MOUNTAINS, a California limited partnership, Defendant and Appellant\", \"name_abbreviation\": \"Majers v. Shining Mountains\", \"decision_date\": \"1988-02-16\", \"docket_number\": \"No. 87-362\", \"first_page\": \"373\", \"last_page\": \"382\", \"citations\": \"230 Mont. 373\", \"volume\": \"230\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:16:50.356478+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON, HUNT and McDONOUGH concur.\", \"parties\": \"FRED W. MAJERS and Cecila Majers, Donald R. Abrahamson and Louine E. Abrahamson, Thomas Tillman and Thomas Orcutt, Plaintiffs and Respondents, v. The SHINING MOUNTAINS, a California limited partnership, Defendant and Appellant.\", \"head_matter\": \"FRED W. MAJERS and Cecila Majers, Donald R. Abrahamson and Louine E. Abrahamson, Thomas Tillman and Thomas Orcutt, Plaintiffs and Respondents, v. The SHINING MOUNTAINS, a California limited partnership, Defendant and Appellant.\\nNo. 87-362.\\nSubmitted Jan. 6, 1988.\\nDecided Feb. 16, 1988.\\n750 P.2d 449.\\nLandoe, Brown, Planalp, Kommers & Johnstone, Steve Reida argued, Bozeman, Jones & Hoffman, Chester Lloyd Jones argued, Virginia City, for defendant and appellant.\\nPoore, Roth & Robinson, C. Richard Anderson argued, and John P. Davis argued, Butte, for plaintiffs and respondents.\", \"word_count\": \"2914\", \"char_count\": \"18491\", \"text\": \"MR. JUSTICE HARRISON\\ndelivered the Opinion of the Court.\\nDefendant-Shining Mountains appeals from a District Court deci sion requiring it to provide and construct roadways throughout a subdivision located in Madison County and to pay reasonable attorney's fees to plaintiffs. We affirm and remand with instructions.\\nThis appeal comes from a Madison County bench trial before the Honorable Frank M. Davis, which was concluded September 30, 1986. Defendant, \\\"The Shining Mountains,\\\" a California limited partnership, is the owner-developer of property known as the \\\"Shining Mountains Subdivision\\\" located in Madison County, Montana. A dispute arose between defendant and individuals purchasing parcels within the subdivision as to the extent and nature of defendant's commitment to construct roadways within the subdivision. The plaintiff-landowners filed suit alleging defendant represented that roadways would be provided as part of the development and constructed by defendant.\\nThis Court previously reversed a partial summary judgment in favor of plaintiffs. Majers v. Shining Mountains (Mont. 1986), [219 Mont. 366,] 711 P.2d 1375, 43 St.Rep. 16 (holding that a genuine issue of fact remained in determining what representations were made by defendant to plaintiffs as to the construction of roadways, and that roadway easement designations on the plat maps did not alone create a promise to construct roads). Following a subsequent trial, the District Court concluded that defendant was obligated to provide and construct roadways as designated in its recorded plats of the subdivision, and that the roads comply with the minimum requirements of local subdivision specifications. The District Court found that defendant had represented during sales campaigns that it would construct the roads and that defendant acknowledged this obligation by beginning \\\"a program of road and improvement construction in accordance with the designations thereof in the recorded plats.\\\" Plaintiffs were awarded attorney's fees in the amount of $26,000.\\nFour issues are raised for our consideration on appeal:\\n(1) Did the District Court properly order specific performance?\\n(2) Did the District Court award excessive attorney's fees?\\n(3) Are the plaintiffs entitled to an additional award of attorney's fees incurred in responding to the present appeal?\\n(4) Was the plaintiffs' action barred by the statute of limitations?\\nWe will consider each issue separately. First, however, we must note that the standard of review on appeal is that the District Court's findings of fact will not be disturbed unless clearly errone ous. Rule 52(a), M.R.Civ.P. Further, this Court has made the following statement which is applicable under these circumstances:\\n\\\"In a nonjury trial, the credibility of witnesses and the weight of their testimony are matters for the District Court to determine. The sufficiency of the evidence must be reviewed from the perspective most favorable to the prevailing party. The District Court's findings and judgment are presumed correct and will not be overturned unless the appellant meets the burden of proving with a preponderance of evidence that they are wrong. Merely showing the evidence establishes reasonable grounds for reaching a different conclusion is insufficient to reverse the District Court findings. Lumby v. Doetch (1979), 183 Mont. 427, 431, 600 P.2d 200, 202.\\\"\\nFrank L. Pirtz Const. v. Hardin Town Pump (Mont. 1984), [214 Mont. 131,] 692 P.2d 460, 462, 41 St.Rep. 2366, 2368.\\nI. DID THE DISTRICT COURT PROPERLY ORDER SPECIFIC PERFORMANCE?\\nDefendant agrees it is obligated to construct some roadways, but argues the District Court order is excessive because it requires the construction of all roadways designated on the subdivision plat. Defendant contends that potential buyers were informed that roads would be constructed as they were needed, and when the buyer determined he was ready to build. Defendant alleges \\\"there is no evidence in the record that Shining Mountains promised to build all the roads listed on the plat.\\\" Defendant relies upon the previous appeal in this matter, where it was held that the designation of roadways on the subdivision plat does not alone obligate the subdivider to construct roadways. Majers, 711 P.2d at 1378, 43 St.Rep. at 20. Instead, the obligation depends upon the actual representations made by the seller to the buyer. Defendant contends that the evidence does not sufficiently demonstrate a promise to construct the entire network of roadways.\\nIn the previous appeal in this case, we reversed a partial summary judgment in favor of the plaintiffs and stated:\\n\\\"[I]t is the use made of the plat in inducing the purchasers . . . which gives rise to the legally enforceable right in the individual purchasers, and such is not dependent upon a dedication to public use, or upon the filing or recording of the plat.\\\" [Citing, Ute Park Summer Homes Ass'n v. Maxwell Land Gr. Co. (N.M. 1967), 427 P.2d 249, 253.] Similarly here, the purchasers acquired an easement for the designated use. Whether there is any legally enforceable right to have the roads constructed depends not on the designation in the plats but on the use of those plats in inducing purchases. The instruments alone do not give rise to a promise to open or construct the roads. Factual issues remain on the use made of the plats and what representations were made in the sale of lots. We therefore reverse the order granting partial summary judgment for respondents and remand for further proceedings.\\\" (Emphasis added.)\\nMajers, 711 P.2d at 1378, 43 St.Rep. at 20. Following a subsequent bench trial, the District Court found sufficient evidence to demonstrate that defendant's sales agents had made actual representations throughout the sales campaign that roads would be constructed and provided by defendant. This finding is supported by substantial credible evidence and we therefore affirm the finding.\\nThe trial testimony consistently indicates that the defendant's sales agents referred to the plats of the subdivision when making a sales presentation to a potential buyer. Those plats clearly set forth a roadway system. The use of the plats suggest that the potential buyers would be purchasing land in a subdivision with a developed system of roadways, and not an isolated piece of real property. Defendant actually admits that once a land buyer decides to construct a residence, defendant is responsible for constructing a road to that plot of land. The trial testimony sufficiently demonstrates that the buyers were partially induced to make purchases because a roadway system would be provided by the seller. Substantial credible evidence supports this conclusion, and we therefore refuse to hold that the District Court's decision is clearly erroneous.\\nDefendant contests the award of specific performance and states this is an inappropriate remedy because the obligations of the parties under the contracts are not sufficiently ascertainable. \\\"Specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed on.\\\" Seifert v. Seifert (1977), 173 Mont. 501, 504, 568 P.2d 155, 156. Specific performance is not appropriate if the terms of the contract are not sufficiently certain so as to make the precise act which is to be done clearly ascertainable. Section 27-1-412(5), MCA. In other words, a contract will not be specifically enforced unless the terms of the contract are sufficiently definite. This Court has also noted however, that absolute certainty in every detail is not necessarily required:\\n\\\"[I]t is well settled that absolute certainty in every detail is not a prerequisite for specific performance. Gropp v. Lotton (1972), 160 Mont. 415, 503 P.2d 661; Steen v. Rustad (1957), 132 Mont. 96, 313 P.2d 1014. Those matters which are collateral or which go to the performance of the contract are not essential and need not be expressed in the contract. Steen v. Rustad, supra; Johnson v. Elliot (1950), 123 Mont. 597, 218 P.2d 703.\\\"\\nKeaster v. Bozik (Mont. 1981), [_ Mont. _,] 623 P.2d 1376, 1381, 38 St.Rep. 194, 201. Additionally, we must note that specific performance is an equitable remedy:\\n\\\"[T]he foundation of a suit for performance of a contract is that, by compelling the parties to do the very things they agreed to do, more complete and perfect justice is attained than by giving damages for breach of a contract. Specific performance is purely an equitable remedy; presenting a purely equitable controversy and is governed by equitable principles. 81 C.J.S. Specific Performance Section 1, p. 408. See also: State ex rel. Victor's Inc. v. District Court, [169 Mont. 110], 545 P.2d 1098, 33 St.Rep. 23, 27.\\n\\\"In 81 C.J.S. Specific Performance Section 3, p. 411, it is stated:\\n\\\" '. . . specific performance will be ordered only on equitable grounds in view of all the conditions surrounding the particular case.\\n\\\" 'A bill in equity for specific performance is an appeal to the conscience of the court, and generally, in such a proceeding, the inquiry must be whether, in equity and good conscience, the court should specifically enforce the contract. Accordingly, specific performance will be granted when it is apparent from a view of all the circumstances of the particular case that it will serve the ends of justice, and it will be withheld when, from a like view, it appears that it will produce hardships or injustice to either party .' \\\" (Emphasis in original.)\\nSeifert, 173 Mont. at 504, 568 P.2d at 156, 157.\\nIn view of the facts of this case and the general rules governing specific performance, we find the District Court order is correct. The plats designate the route, location, and width of the roadways in question. The only item not specifically designated is the type or nature of the roadways. Therefore, we find that the obligations generated by the sales contracts are sufficiently definite. Additionally, the actual construction of roadways is the proper equitable remedy.\\nDefendant contests the portion of the District Court order requiring that the roads meet the minimum requirements of the Madison County subdivision regulations. Since no such minimum requirements existed when plaintiffs purchased their lots, defendant contends it is unfair to apply the requirements at a future time. De fendant alleges the new requirements will result in a cost increase exceeding $500,000.\\nThe record demonstrates that defendant has attempted to satisfy its obligations by constructing certain dirt roadways that are impassable during large portions of any given year. It would certainly not be equitable to allow defendant to escape its obligation by constructing roads which are rendered basically useless during significant portions of the year. The roadways must be of sufficient quality to provide reasonable access during the entire year. Both parties had an opportunity at trial to present a plan which would provide reasonable year-round access. Plaintiffs presented the Madison County subdivision regulations as containing a reasonable standard for the roadways. The District Court chose to accept those standards as reasonable, and we see no reason to reject this decision.\\nDefendant finally states that the District Court decision benefits 200 lot owners that are not parties to the action, and has the effect of treating the dispute as a class action suit. Defendant concludes this is not an appropriate case for a class action suit because recovery depends upon representations made to each individual buyer. Additionally, a similar case was previously denied class action status. We reject defendant's contention because the completion of the roadway system within the subdivision benefits each of the plaintiffs. Although others will certainly benefit even though they are not parties to this lawsuit, this consideration is not controlling. Each plaintiff has a vested interest in having the subdivision roadway network completed. We hold the District Court properly awarded specific performance.\\nII. DID THE DISTRICT COURT AWARD EXCESSIVE ATTORNEY'S FEES?\\nDefendant agrees that an award of attorney's fees is appropriate because the sales contracts and Montana law provide for such fees. However, defendant states the award of $26,000 is excessive. Defendant explains that plaintiffs lost the first appeal in this case and that resulting attorney's fees from that appeal should not be paid by defendant. Additionally, defendant alleges a large portion of the plaintiffs' attorney's fees were paid for by a third party, and that other portions of plaintiffs' attorney's fees were generated as a result of a separate case.\\nIn determining what constitutes \\\"reasonable attorney's fees,\\\" this Court has stated that the following factors should be considered as guidelines: (1) the amount and character of the services rendered; (2) the labor, time, and trouble involved; (3) the character and importance of the litigation in which the services were rendered; (4) the amount of money or the value of the property to be affected; (5) the professional skill and experience called for; (6) the character and standing in their profession of the attorneys; and (7) the result secured by the services of the attorneys. See, Carkeek v. Ayer (1980), 188 Mont. 345, 347, 613 P.2d 1013, 1015; First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429, 430, 547 P.2d 1328, 1332; Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 119, 120, 541 P.2d 56, 59; and, Forrester and MacGinnis v. B. & M. Co. (1904), 29 Mont. 397, 409, 74 P. 1088, 1093. Determining what constitutes reasonable attorney's fees is a discretionary task for the District Court, and this Court will not disturb its judgment in the absence of an abuse of that discretion. Talmage v. Gruss (1983), 202 Mont. 410, 412, 658 P.2d 419, 420 (citing, Carkeek, 188 Mont. at 347, 348, 613 P.2d at 1015).\\nThe District Court specifically stated in its order dated May 4, 1987, that it considered plaintiffs' itemized statements, the supporting affidavits, and the general and local standards and criteria for the fixing of attorney's fees. The District Court actually reduced the amount of attorney's fees requested by the plaintiff from $29,575.07 to $26,000. After reviewing the plaintiffs' supporting affidavits and statements, the guidelines for determining reasonable attorney's fees, and the District Court order, we find no abuse of discretion and affirm the award of attorney's fees.\\nDefendant also objects to the award of attorney's fees on the contentions that the fees have already been advanced by a third party and that a significant portion of the fees were generated due to a separate but similar case. Defendant cites no authority which prohibits a third party from advancing such fees for plaintiffs. Defendant does cite First National Bank of Great Falls v. Llera (1978), 176 Mont. 481, 487, 580 P.2d 100, 104, for the proposition that only parties with a contractual right to attorney's fees may receive an award for those fees pursuant to the contract. In this case, however, the plaintiffs are parties to the sales contracts and therefore may receive attorney's fees based on that contract. This is not altered merely because a third party advanced the fees. Additionally, there is no indication that the attorney's fees were incurred due to another case. Instead, it appears that plaintiffs have become genuinely obligated to pay significant amounts in attorney's fees as a result of pursuing this action. The District Court determined a reasonable amount for these services and we hold there is substantial evidence to make such a determination.\\nIII. ARE THE PLAINTIFF/RESPONDENTS ENTITLED TO AN ADDITIONAL AWARD OF ATTORNEY'S FEES INCURRED IN RESPONDING TO THIS APPEAL?\\nPlaintiffs contend that if they prevail on this appeal, they are entitled to additional reasonable attorney's fees incurred due to this appeal. The claim for attorney's fees is based on an attorney's fee clause in the contract for sale which provides that the seller (defendant) is entitled to reasonable attorney's fees generated by any subsequent litigation. Due to the clause, the buyers (plaintiffs) obtained the same right to claim attorney's fees. Section 28-3-704, MCA. The clause specifically states it applies to any legal action instituted in any court. As the prevailing party on appeal, plaintiffs are entitled to reasonable attorney's fees. We hold this is consistent with previous cases discussing similar issues. See, In re Marriage of Bolstad (1983), 203 Mont. 131, 135, 660 P.2d 95, 97.\\nIV. WAS THE PLAINTIFF'S ACTION BARRED BY THE STATUTE OF LIMITATIONS?\\nDefendant contends the applicable statute of limitations for this case is five years, despite this Court's decision which applied an eight year statute of limitations. Majers, 711 P.2d at 1378, 1379, 43 St.Rep. at 20, 21. Defendant reasons that since the claim depends upon the oral representations made to the buyers, the claim is one based on a contract not founded upon a written instrument and the applicable statute of limitations is five years. See, Section 27-2-202(2), MCA. Defendant urges this Court to reevaluate the prior decision in this case. After reviewing this issue, we see no reason to reverse our prior decision regarding the statute of limitations.\\nIn conclusion, we affirm the District Court on all issues. We remand for the purpose of determining reasonable attorney's fees incurred by plaintiffs on this appeal. Further, we direct the District Court to reestablish a date for the completion of the roadways, as well as other improvements including the artificial lake as stated in the District Court's final judgment, as set forth on the plats of the subdivision and in accordance with this opinion.\\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON, HUNT and McDONOUGH concur.\"}"

mont/2461728.json

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+"{\"id\": \"2461728\", \"name\": \"STATE OF MONTANA, Plaintiff vs. VINCENT LEROY TUNISON, Defendant\", \"name_abbreviation\": \"State v. Tunison\", \"decision_date\": \"1987-04-03\", \"docket_number\": \"No. DC-86-7\", \"first_page\": \"13\", \"last_page\": \"13\", \"citations\": \"230 Mont. 13\", \"volume\": \"230\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:16:50.356478+00:00\", \"provenance\": \"CAP\", \"judges\": \"SENTENCE REVIEW DIVISION\", \"parties\": \"STATE OF MONTANA, Plaintiff vs. VINCENT LEROY TUNISON, Defendant.\", \"head_matter\": \"From: The District Court of the Nineteenth Judicial District, County of Lincoln,\\nSTATE OF MONTANA, Plaintiff vs. VINCENT LEROY TUNISON, Defendant.\\nNo. DC-86-7\\nDATED this 3rd day of April, 1987.\", \"word_count\": \"116\", \"char_count\": \"728\", \"text\": \"DECISION\\nThe application of the above-named defendant for a review of the sentence of 7 years with a conditional DANGEROUS DESIGNATION for Attempted Incest imposed on May 5, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.\\nWe wish to thank Terry Mailloux of the Montana Defender Project for assistance to the Defendant and to this Court.\\nSENTENCE REVIEW DIVISION\\nFrank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.\"}"

mont/2463732.json

@@ -0,0 +1 @@
+"{\"id\": \"2463732\", \"name\": \"FALLON COUNTY, et al., Plaintiffs and Appellants, v. STATE OF MONTANA, et al., Defendants and Respondents\", \"name_abbreviation\": \"Fallon County v. State\", \"decision_date\": \"1988-04-27\", \"docket_number\": \"No. 87-298\", \"first_page\": \"443\", \"last_page\": \"447\", \"citations\": \"231 Mont. 443\", \"volume\": \"231\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:41:50.181955+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON and MR. CHIEF JUSTICE HASWELL, retired, sitting for MR. JUSTICE McDONOUGH concur.\", \"parties\": \"FALLON COUNTY, et al., Plaintiffs and Appellants, v. STATE OF MONTANA, et al., Defendants and Respondents.\", \"head_matter\": \"FALLON COUNTY, et al., Plaintiffs and Appellants, v. STATE OF MONTANA, et al., Defendants and Respondents.\\nNo. 87-298.\\nSubmitted April 4, 1988.\\nDecided April 27, 1988.\\n753 P.2d 338.\\nDaniel L. Schwarz, Schwarz and Schwarz, Broadus, for plaintiffs and appellants.\\nR. Bruce McGinnis, Dept, of Revenue, Helena, David W. Woodgerd argued, for defendants and respondents.\", \"word_count\": \"1552\", \"char_count\": \"9833\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the Opinion of the Court.\\nIn 1985, the state legislature, through its General Appropriation Bill (H.B. 500), provided state funding for the salaries of county assessors for fiscal year 1987 at the level of 70%. The remaining 30% was to be paid by the several counties. In 1987, the state legislature continued the apportionment of the county assessors' salaries be tween the state and the several counties for this biennium but reduced the state participation to 66%, with the several counties to pick up the remaining 34%.\\nFallon County, 19 other counties, and one county assessor brought suit in the District Court, First Judicial District, Lewis and Clark County against the State of Montana, acting through the Governor and the Department of Revenue, challenging the apportionment between the state and counties of the salaries of the county assessors. After a hearing, and receipt of briefs, the District Court issued an order granting summary judgment in favor of the state and entered judgment thereon on June 17, 1987, dismissing Fallon County's action on the merits, and holding that the provisions of H.B. 500 which funded only 70% of the salaries for county assessors does not violate Art. VIII, Section 3 of the 1972 Mont. Constitution. Fallon County has appealed the District Court decision to this Court and on consideration, we affirm.\\nThe section in issue is in Art. VIII, of the state constitution. It provides in pertinent part:\\n\\\"Section 3. Property tax administration. The state shall appraise, assess, and equalize the valuation of all property which is to be taxed in the manner provided by law.\\\"\\nPrior to the 1972 Montana Constitution, the assessment and valuation of property for tax purposes was determined at a county level, subject to review by the former State Board of Equalization. During the Constitutional Convention of 1972, it was contended that the county system had inadequately equalized property values statewide. It was contended during the Convention that the then recent case of Serrano v. Priest (1971), 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241, mandated a change in Montana's assessment, valuation and equalization system to avoid equal protection attacks on the method of state funding for elementary education. The ultimate result was the adoption of Article VIII, Section 3 above quoted.\\nFollowing the adoption of the 1972 State Constitution, the legislature, to implement the new assessment system, provided that all county assessors became agents of the Department of Revenue (DOR), and they remain state agents presently. Section 15-8-102, MCA. County assessors were omitted from the list of county officers (Section 25-605, R.C.M. (1947)), but subsequently regained county officer status in 1977. Section 7-4-2203(l)(i), MCA.\\nBeginning in 1973, all county assessors' salaries were paid from state funds through the DOR. In 1985, the legislature changed this pay structure through H.B. 500 which provided for state payment of 70% of the county assessors' salaries applying to fiscal year 1987. The 1987 legislature has continued the apportionment of such salaries in this biennium by funding an amount sufficient to pay 66% of county assessors' salaries. The remainder is to be supplied by the several counties.\\nIn the District Court and on appeal, Fallon County and its co-plaintiffs argue that Article VIII, Section 3 grants a right to the people to have their property assessed by the State of Montana and to have the state remain solely accountable for such assessments; that the designation of assessors as \\\"county officials\\\" is not sufficient to change the constitutional duty of the state to assess property and to pay for the personnel employed for that purpose; that the assessment of taxes is a duty placed on the state regardless of the form of government at the county level chosen by the people, and that though assessors may perform duties in addition to those provided for in the constitution relating to assessment, the elemental accountability for assessors lies with the DOR. Additionally, Fallon County argues that the apportionment of such salaries, because of the mills limitation applicable to levies by counties, has the effect of using up county funds that would otherwise be available for other county activities. Some of these issues are raised by Fallon County because the District Court, in its order granting summary judgment in this matter held that the office of elected county assessor is a county office, that it is a permissive office, and that the assessor has some duties which are in addition to those required relating to assessment.\\nWhen a legislative course of action expressed in statutes or budgetary laws is tested for constitutionality under the State Constitution, our review is circumscribed by certain principles. We must give the state constitutional provision a broad and liberal construction consistent with the intent of the people adopting it to serve the needs of a growing state. State ex rel. Fenner v. Keating (1917), 53 Mont. 371, 163 P. 1156. The constitutional provision should receive a reasonable and practical interpretation in accord with common sense. Cottingham v. State Board of Examiners (1958), 134 Mont. 1, 17, 328 P.2d 907, 912. The constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be presumed, unless its unconstitutionality appears beyond a reasonable doubt. State ex rel. Mills v. Dixon (1923), 66 Mont. 76, 84, 213 P. 227, 229. The question of constitutionality is not whether it is possi ble to condemn, but whether it is possible to uphold the legislative action which will not be declared invalid unless it conflicts with the constitution, in the judgment of the court, beyond a reasonable doubt. Matter of the Estate of Kujath (1976), 169 Mont. 128, 545 P.2d 662; see also Board of Regents v. Judge (1975), 168 Mont. 433, 543 P.2d 1323; Arps v. State Highway Commission (1931), 90 Mont. 152, 300 P. 549.\\nWe held in Board of Regents v. Judge, supra, that under the state constitution, the legislative appropriative power extends to all public operating funds of state government. The constitutional limit over that power is that appropriations by the legislature shall not exceed anticipated revenue. Article VIII, Section 9.\\nThe duties of the county assessor vis-a-vis the Department of Revenue are these:\\n\\\"(1) The county assessors of the various counties of the state are agents of the department of revenue for the purpose of locating and providing the department a description of all taxable property within the county, together with other pertinent information, and for the purpose of performing such other administrative duties as are required for placing taxable property on the assessment roles. The assessors shall perform such other duties as are required by law, not in conflict with the provisions of this subsection.\\\"\\nSection 15-8-102, MCA.\\nThe office of county assessor is a permissive office, and may be elected or appointed. Section 7-4-2203, MCA. The Board of County Commissioners has the power and discretion to consolidate the office of county assessor with one or more other county officers. Section 7-4-2301, MCA. While an assessor is an agent of the state, nevertheless, under Section 7-4-2110(1), MCA, the Board of County Commissioners has the jurisdictional power to \\\"supervise the official conduct of all county officers charged with assessing, collecting, safekeeping, management or disbursement of the public revenues.\\nIrrespective of the contentions of Fallon County, the dispositive question is whether the imposition by the constitution on the state of the duty to appraise, assess and equalize property valuations mandates that the state should fully fund the county assessors' salaries. The constitutional provision itself is silent on that point. It is apparent that Article VIII, Section 3 was adopted with a conscious choice of leaving the method of implementing the state's duties to the legislature. Even though Section 15-8-101, MCA, requires the Department of Revenue to \\\"secure such personnel as is necessary to properly perform its duties\\\" that section does not dictate, when read with other statutes pertaining to the county assessor that the state should completely fund county assessor salaries. Article VIII, Section 3 gives the legislature wide flexibility to implement the assessment, appraisal and valuation of property for tax purposes. Fallon County's claim that the legislative apportionment of salaries conflicts with the Constitution is very far from approaching invalidity beyond a reasonable doubt. Matter of the Estate of Kujath, supra.\\nFinally, Fallon County in making its \\\"common sense\\\" argument, Cottingham v. State Board of Examiners, supra, contends that it is unfair for the state, which controls the assessment of property to require counties to shoulder part of the expense of the assessors. That issue is political, not constitutional, and must be addressed to the legislature itself. When the legislature acts within its constitutional power, courts are unable to contravene such power on any court-presumed grounds of fairness, absent equal protection consequences.\\nAccordingly, we affirm the decision of the District Court.\\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON and MR. CHIEF JUSTICE HASWELL, retired, sitting for MR. JUSTICE McDONOUGH concur.\"}"

mont/2475098.json

@@ -0,0 +1 @@
+"{\"id\": \"2475098\", \"name\": \"STATE OF MONTANA, Plaintiff and Appellant, v. ARTHUR LEROY MAGNUSON, Defendant and Respondent\", \"name_abbreviation\": \"State v. Magnuson\", \"decision_date\": \"1984-06-12\", \"docket_number\": \"No. 83-162\", \"first_page\": \"401\", \"last_page\": \"411\", \"citations\": \"210 Mont. 401\", \"volume\": \"210\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T23:47:10.307080+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, WEBER and MORRISON concur.\", \"parties\": \"STATE OF MONTANA, Plaintiff and Appellant, v. ARTHUR LEROY MAGNUSON, Defendant and Respondent.\", \"head_matter\": \"STATE OF MONTANA, Plaintiff and Appellant, v. ARTHUR LEROY MAGNUSON, Defendant and Respondent.\\nNo. 83-162.\\nSubmitted March 2, 1984.\\nDecided June 12, 1984.\\n682 P.2d 1365.\\nMike Greely, Atty. Gen., Helena, Mary Kay Wheeler, 3rd Yr. Law Student, introduced by James McLean, Asst, Atty. Gen., argued for the State, John L. Pratt, Count Atty., Roundup for plaintiff-appellant.\\nKathryn R. Baylis argued, Roundup, for defendant and respondent.\", \"word_count\": \"2662\", \"char_count\": \"16762\", \"text\": \"MR. JUSTICE GULBRANDSON\\ndelivered the Opinion of the Court.\\nThe State of Montana appeals from an order of the District Court, Fourteenth Judicial District, Musselshell County, dismissing a charge of operating a motor vehicle while under the influence of intoxicating liquor against the defendant, Arthur Leroy Magnuson. We reverse.\\nOn the afternoon of July 29, 1982, Magnuson became intoxicated and drove away from the Kee Angus Ranch in Musselshell County in his blue Ford Bronco. Before he left he had been confronted by Mary Kee, a friend, who knew he had been drinking. Mary Kee had attempted to persuade Magnuson not to drive and had taken the keys to his Bronco. Magnuson found another set of keys and left the ranch.\\nKee, concerned that Magnuson was driving while intoxicated, called the Sheriff's Office, hoping to speak with Sheriff Brian Neidhardt, a friend of Kee's. As Sheriff Neidhardt was not there Kee called the Alcoholics Anonymous number listed in the local newspaper. Kee spoke with Mac House, the director of the Musselshell County Drug and Alcohol Program. Kee did not know that Magnuson was in treatment with Mac House at that time and had never spoken with Mac House prior to the phone call. Kee told House about the problem and the two of them agreed to let matters take their course.\\nAfter receiving Kee's phone call, House discussed the situation with undersheriff Floyd Ray Fisher. House advised Undersheriff Fisher that Magnuson was intoxicated and was driving his Bronco. Undersheriff Fisher later testified that he had seen the vehicle around town at a few of the different bars, and that after House described the vehicle to him, he remembered the vehicle. House also advised Under-sheriff Fisher that Magnuson's usual hangout was Tracy's Bar. Undersheriff Fisher asked House if he wanted to accompany him and the two of them got into Fisher's vehicle.\\nAs Fisher drove toward Tracy's Bar, he and House saw Magnuson's vehicle coming in the opposite direction on Highway 87. Fisher later testified that Magnuson had \\\"approximately a quarter to almost half of his vehicle in my lane of traffic.\\\" As Fisher followed Magnuson, \\\"he turned his right hand blinker on to make a right hand turn, and then made a left hand turn.\\\" After Fisher stopped Magnuson he approached the vehicle and when Magnuson opened the door of his vehicle, Fisher \\\"could smell alcohol, a very strong odor of alcohol.\\\" When Fisher asked Magnuson to step out of the vehicle Magnuson \\\"had to take hold of the door to keep from falling to the ground.\\\" When Fisher asked Magnuson to say the alphabet he could only make it as far as G. When Fisher asked Magnuson if he could walk a straight line, heel to toe, Magnuson \\\"had to take several steps sideways to keep from falling down.\\\" Fisher then arrested Magnuson and advised him of his Miranda rights.\\nBased upon the affidavit of the county attorney, the District Court granted a motion for leave to file an information against Magnuson charging him with violating Section 61-8-401, MCA, driving while under the influence of intoxicating liquor. The county attorney's affidavit indicated that a teletype report on Magnuson showed four prior convictions for driving while under the influence in Iowa between January 17, 1980 and May 26, 1981.\\nThe issue to be resolved by this Court concerns the effect of federal statutes and regulations upon a state criminal prosecution for driving under the influence. The federal statutes and regulations require that patient records maintained in connection with the performance of any program or activity related to alcohol abuse treatment remain confidential. The State concedes that the Musselshell County Drug and Alcohol Program is federally funded and the record shows that Magnuson had been attending counseling sessions with Mac House for approximately six weeks before he was arrested.\\nOn motion of the defendant to dismiss, the District Court found \\\"that the information provided by . . . Mac House to . . . Fisher . . . was tainted within the prohibition\\\" of Title 42 U.S.C.A Sections 4582(a) and (c) and 42 C.F.R. Section 2.11(o). As a result, the District Court dismissed the driving while intoxicated charge against Magnuson and the State appealed.\\nThe first issue is whether Title 42 U.S.C.A. Section 4582 applies to the information House provided Undersheriff Fisher concerning the fact that Magnuson was driving while intoxicated.\\nThe federal statutes involved in this case are as follows:\\n\\\"Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section. 42 U.S.C.A. Section 4582 (a).\\n\\\"Except as authorized by a court order granted under Subsection (b)(2)(c) of this section, no record referred to in Subsection (a) of this section may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.\\\" 42 U.S.C.A. Section 4582(c). (Emphasis added.)\\nThe applicable federal regulations in this case are these:\\n\\\"Records. The term 'records' includes any information, whether recorded or not, relating to a patient, received or acquired in connection with the performance of any alcohol abuse or drug abuse prevention function, whether such receipt or acquisition is by a program, a qualified service organization, or any other person. 42 C.F.R. Section 2.11(o). (Emphasis added.)\\n\\\"Except as provided in paragraph (b) of this section, this part applies to records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any alcohol abuse or drug abuse prevention functions. 42 C.F.R. Section 2.12.\\n\\\"(3) Which is assisted by funds supplied by any department or agency of the United States, whether directly through a grant, contract or otherwise, or indirectly by funds supplied to a State or local government unit through the medium of contracts, grants of any description, general or special revenue sharing, or otherwise . 42 C.F.R. Section 21.12(a)(3).\\n\\\"The term 'alcohol abuse or drug abuse prevention function' means any program or activity relating to alcohol abuse or drug abuse education, training, treatment, rehabilitation, or research . . .\\\" 42 C.F.R. Section 211(k).\\nResolution of the first issue in this case depends upon whether the information House communicated to Fisher was within the definition of \\\"records\\\" as that term is defined in 42 C.F.R. Section 2.11(o). That determination depends on whether House was performing an \\\"alcohol abuse or drug abuse prevention function\\\" as defined in 42 C.F.R. Section 2.11(k) at the time he received the information.\\nThe information conveyed from House to Fisher was that Magnuson was intoxicated; that he was driving a Bronco; that House wanted Fisher to watch out for Magnuson; and Magnuson's usual hangout. Respondent asserts that part of the information conveyed from House to Fisher \\u2014 information about the kind of car Magnuson would be driving, as well as his usual hangout \\u2014 came from the client-counselor relationship. However, Undersheriff Fisher testified that after House described Magnuson's vehicle he remembered it because he had observed it at some of the local bars on prior occasions.\\nIf the information was within the prohibition of the fed eral legislation it must be . . received or acquired in connection with the performance of any alcohol abuse or drug abuse prevention function.\\\" Alcohol abuse prevention function means \\\". . . any program or activity relating to alcohol abuse . . . education, training, treatment, rehabilitation, or research.\\\" The issue thus becomes: was House involved in a program or activity related to alcohol abuse education, training, treatment, rehabilitation or research at the time he received the information from Mary Kee? Clearly he was not, and the information does not fall within the scope of the federal legislation.\\nIn addition, the federal legislation does not apply in this case because the information received by Undersheriff Fisher from House was not used to \\\"initiate or substantiate any criminal charges\\\" against Magnuson. See 42 U.S.C.A. Section 4582(c). The arresting officer testified that the basis for Magnuson's arrest was not the information received from House but, rather, his observations of Magnuson weaving down the highway, exiting the car with difficulty, smelling of alcohol and failing basic sobriety tests.\\nNext, the State argues that suppression of the evidence was an erroneous remedy for violating the federal statute because the proper remedy under Title 42 U.S.C.A. Section 4582 is a fine.\\nTitle 42 U.S.C.A. Section 4582(f), provides: \\\"[a]ny person who violates any provision of this section or any regulation issued pursuant to this section shall be fined not more than $500 in the case of a first offense, and not more than $5,000 in the case of each subsequent offense.\\\"\\nIn making its decision, the District Court stated \\\". . . from the evidence presented that the information provided by alcohol and drug abuse counselor Mac House to Deputy Sheriff Floyd Fisher, leading to the arrest of the Defendant, was tainted within the prohibition of (the federal statutes).\\\" However, when 42 U.S.C.A. Section 4582 is read as a whole, it is clear that the remedy Congress intended for a violation of one of its confidentiality provisions is a fine as provided in 42 U.S.C.A. Section 4582(f). Rules of statutory construction dictate that legislation must be read as a whole in order to ascertain legislative intent. Wynia v. City of Great Falls (1979), 183 Mont. 458, 600 P.2d 802. The fact that a remedy is provided in the legislation indicates that Congress considered the possibility of a violation and determined the appropriate remedy for that violation. If Congress had intended that suppression and dismissal were the appropriate remedies for a violation of a confidentiality it would have so provided.\\nSince the issues previously discussed are dispositive of the case we need not consider the other issue raised by the State.\\nReversed and remanded for further proceedings in accordance with this opinion.\\nMR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, WEBER and MORRISON concur.\"}"

mont/2481402.json

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+"{\"id\": \"2481402\", \"name\": \"GAMBLE ROBINSON COMPANY, a Corporation, Plaintiff and Respondent, v. CAROUSEL PROPERTIES, et al., Defendants and Appellants\", \"name_abbreviation\": \"Gamble Robinson Co. v. Carousel Properties\", \"decision_date\": \"1984-09-13\", \"docket_number\": \"No. 84-43\", \"first_page\": \"305\", \"last_page\": \"318\", \"citations\": \"212 Mont. 305\", \"volume\": \"212\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:47.842638+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, MORRISON and SHEA concur.\", \"parties\": \"GAMBLE ROBINSON COMPANY, a Corporation, Plaintiff and Respondent, v. CAROUSEL PROPERTIES, et al., Defendants and Appellants.\", \"head_matter\": \"GAMBLE ROBINSON COMPANY, a Corporation, Plaintiff and Respondent, v. CAROUSEL PROPERTIES, et al., Defendants and Appellants.\\nNo. 84-43.\\nSubmitted on Briefs June 28, 1984.\\nDecided Sept. 13, 1984.\\n688 P.2d 283.\\nZane K. Sullivan, Missoula, for defendants and appellants.\\nJohn Warren, Schulz, Davis & Warren, Dillon, for plaintiff and respondent.\", \"word_count\": \"3519\", \"char_count\": \"21715\", \"text\": \"MR. JUSTICE GULBRANDSON\\ndelivered the Opinion of the Court.\\nThe action was brought in the District Court of the Fifth Judicial District, in and for the County of Beaverhead, Montana, on an account due. Respondent received summary judgment for $4,414.76 plus interest and costs. Appellants contest the lower court's ruling, and ask this Court to grant summary judgment in their favor. We reverse and remand.\\nOn June 20, 1978, Walter W. Deines, Alan M. Hart, Carroll M. Hart, Ray L. Ingalls and Harry M. Opsahl, all of Missoula, Montana, agreed to form a partnership called Crosswinds Enterprises. Article 1.4 of the Partnership Agreement set out the purpose of the partnership, \\\". . . the ownership and operation of one or more restaurants and any other businesses related thereto, and such other business as the partners shall determine.\\\" In addition, the partners, in Article 4.1 of the agreement, contemplated that \\\". . . the partnership intends to enter into a separate contract of employment with Harry M. Opsahl regarding the full time operation and management of the partnership's initial restaurant venture.\\\" Until then the Agreement gave Harry Opsahl the specific authority to manage the restaurant as a partner and employee, \\\"which said authority shall include, but not be limited to the powers to . . . (ii) borrow monies for operating expenses of the partnership business . . . [and] (iii) expend sums for the payment of ordinary business expenses, purchase of inventory, supplies, or other consumables . . . \\\" The Agreement otherwise limited all of the partners' authority, including Harry Opsahl's, to those specifically granted. Crosswinds Enterprises filed a registration of trade name on June 16, 1978.\\nIn July of 1978, Crosswinds Enterprises acquired real property in Dillon, Montana on which it intended to begin restaurant operations. A Notice of Purchasers Interest in the name of Crosswinds Enterprises, a partnership, was filed with the Beaverhead County Clerk and Recorder at that time.\\nLittle apparently happened until March of 1979. On March 1, the five partners joined in amending the partnership agreement. The name of the partnership was changed to Carousel Properties, and the provision in the Agreement giving Harry Opsahl general managerial powers was deleted. The purposes clause of the partnership was not amended. On March 30, Carousel Properties filed notice with the Secretary of State that it was assigning all of its rights in its old name, Crosswinds Enterprises, to a corporation formed that same day. All five principals in the partnership were equal shareholders in the new corporation, which took as its name Crosswinds Enterprises. The purpose of the corporation was the \\\"operation and management\\\" of the Crosswinds Restaurant. That same day, the partnership also filed a notice of name change.\\nOn April 1, 1979, the partnership (Carousel Properties) leased to the corporation (Crosswinds Enterprises) the real property it had acquired the year before. On June 1, 1979, Harry Opsahl entered into a written agreement with the corporation to be general manager of the Crosswinds Restaurant. The restaurant opened for business on June 9, 1979.\\nSometime early that June, Ken Marsh, a sales representative for respondent, Gamble Robinson Company, visited the Crosswinds Restaurant, to solicit orders for bulk foodstuffs. Between June 11 and June 22, the restaurant ordered $582.15 worth of food from Gamble Robinson Company. The first order was billed to \\\"Crosswinds Restaurant; Deines, Opsahl, Hart and Hart,\\\" and was paid on July 14. All subsequent orders were billed the same way. In late June or early July, Ken Marsh and Harry Opsahl met to discuss the credit arrangement between Crosswinds and Gamble Robinson. The details of this conversation are unclear. Marsh has not testified, and Opsahl's recollection is equivocal at best. Gamble Robinson alleges that during this conversation, Opsahl represented to Marsh that the restaurant was owned and operated by a partnership. Regardless, what apparently came out of this conversation was a credit application that Marsh filed sometime in July with Gamble Robinson Company's branch manager. The application listed the restaurant's owner as a partnership of Deines, Opsahl, Ingalls, Hart and Hart. It was not signed by Opsahl or any of the purported partners. A line of credit was approved and operations began on that basis.\\nIn 1982, managerial and financial difficulties beset the restaurant. Harry Opsahl was fired as manager in April, and by October, Crosswinds was unable to pay its bills. The account with Gamble Robinson went unpaid from August 3 to October 16, when the line of credit was rescinded. Crosswinds then owed Gamble Robinson $4,414.96, the amount at issue in this action.\\nIn January of 1982, Crosswinds Enterprises effected a bulk transfer of all of its corporate assets to Snowden Enterprises, Ltd. Snowden was a newly formed corporation with only one shareholder, Iris Hart, the wife of Carroll Hart (one of the partners and shareholders in the other two entities). Gamble Robinson Co. received a notice of bulk transfer, and indicated in a letter dated January 27, 1982 that it would file a claim as a corporate creditor. Following the bulk transfer, Carousel Properties transferred the lease from Crosswinds Enterprises to Snowden. On February 18, 1983, Crosswinds Enterprises filed a petition in United States Bankruptcy Court. Gamble Robinson, an unsecured creditor, received nothing.\\nOn February 24, 1983, Gamble Robinson filed this action for the unpaid account against \\\"Crosswinds Enterprises, a partnership consisting of Walter W. Deines, Alan M. Hart and Ray L. Ingalls, also known as Crosswinds Restaurant.\\\" Harry Opsahl was not named in the original complaint, apparently because he had left the partnership at the same time he was fired from his post as manager. Defendant moved to dismiss under the name \\\"Carousel Properties, a partnership formerly known as Crosswinds Enterprises, a partnership consisting of Walter W. Deines, Harry Opsahl, Allan W. Hart, Carrol M. Hart and Roy L. Ingalls; also known as Crosswinds Restaurant.\\\" The motion to dismiss was denied, and it is under that name this action has proceeded. Following a hearing, the Honorable Frank E. Blair, District Judge, authorized a writ of attachment to issue against Carousel Properties.\\nThis cause was heard on December 8, 1983, before the Honorable Frank M. Davis, District Judge, on cross-motions for summary judgment. At the hearing, Carousel Properties withdrew its motion and Gamble Robinson's motion was then granted. Judge Davis found this case to be appropriate for summary judgment because there were no genuine issues of material fact that the debt at issue belonged to the partnership, Carousel. This ruling was based upon: (1) the stated general purpose of the partnership; (2) the apparent authority of Opsahl to bind the partnership; (3) Opsahl's alleged representation to Marsh that he was dealing with a partnership; (4) the record title of the real estate was in the partnership name; and (5) the deceptive similarity of the various entities. The court also intimated that, although it was not strictly necessary for its decision, this case was ripe for the application of the doctrine of piercing the corporate veil.\\nAppellant presents the following issues on appeal:\\n(1) Was summary judgment properly granted?\\n(2) Did the District court err in its analysis of the record in determining the facts before the court?\\n(3) Is the doctrine of piercing the corporate veil applicable?\\nWas Summary Judgment Proper?\\nSummeiry judgment is not a substitute for trial, Baylor v. Jacobson (1976), 170 Mont. 234, 552 P.2d 55. Rule 56(c) Mont.R.Civ.P. permits summary judgment to issue only when there is no genuine issue of material fact, and the moving party is entitled to the judgment as a matter of law. Reaves v. Reinhold (Mont. 1980), 615 P.2d 896, 37 St.Rep. 1500. In Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509, we stated the test for granting summary judgment:\\n\\\"It is well established that a party moving for summary judgment has the burden of showing a complete absence of any genuine issue as to all facts deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law. [Citations omitted.] All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing summary judgment.\\\" [Citations omitted.]\\nThe moving party's initial burden is two-fold. First, it must show the absence of any genuine issue as to material fact. Second, that party must also show that this set of facts entitles it to the judgment as a matter of law. This necessarily implies the articulation of cogent legal grounds to which the facts apply.\\nIn addressing the factual test, although the court has no duty to anticipate or speculate as to material facts to the contrary, it must nonetheless draw every inference in favor of the non-moving party. Larry C. Iverson, Inc. v. Bouma (1981), 195 Mont. 351, 639 P.2d 47; State ex rel Burlington Northern v. District Court (1972), 159 Mont. 295, 496 P.2d 1152.\\nIf the movant has met this burden, it then shifts to the non-moving party to demonstrate a genuine issue of material fact. Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue. Detert v. Lake County (Mont. 1984), [207 Mont. 460,] 672 P.2d 1097, 41 St. Rep. 76; Lewis v. State (Mont. 1984),[207 Mont. 361,] 675 P.2d 107, 41 St. Rep. 9.\\nThe fatal defect below was respondent's failure to meet its initial burden. It did not show an absence of any genuine issue of material fact, and assuming it had, it did not articulate cogent legal grounds upon which judgment could lie. To reach this conclusion, it is necessary to set forth the substantive law governing this matter.\\nGamble Robinson Co. relied primarily on Section 35-10- 301(1), MCA, to the effect that:\\n\\\"Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership . .\\nTo this Carousel Properties responded that any actions or representations by Harry Opsahl to Ken Marsh were beyond the scope of his authority because of the March 1979 amendments to the partnership agreement. Because he was acting beyond his authority, Opsahl did not bind the partnership. For this point, Carousel relies on the second clause of Section 35-10-301(1), MCA: \\\". . . unless the partner so acting has in fact no authority to act for the partnership in the particular matter and the person with whom he is dealing has knowledge of the fact that he has no such authority.\\\"\\nCarousel attempts to impute \\\"knowledge\\\" onto Gamble Robinson by characterizing Opsahl's representations as not within the scope of business as ordinarily conducted and not \\\"for the carrying on of the partnership in the usual way,\\\" Section 35-10-301(2),MCA.\\nThe scope of Harry Opsahl's authority under the partnership agreement is not the correct legal issue. Crosswinds Restaurant was legally being operated by the corporate entity, Crosswinds Enterprises. The only role that the partnership, Carousel, played was that of lessor of the restaurant property. Harry Opsahl was acting for the corporation in his role as manager-employee. The five principals complied with all of the necessary legalities in assigning the partnership name, incorporating Crosswinds Enterprises, and leasing the property to the corporation. Gamble Robinson was dealing with the corporation, and not the partnership. In that respect it ran afoul of the general rule that persons must be partners to one another before they can be partners to third persons. St. Paul Machinery Mfg. Co. v. Bruce et. al. (1918), 54 Mont. 549, 172 P. 330; Martin v. Peyton (1927), 246 N.Y. 213, 158 N.E. 77; 59 Am.Jur.2d Partnership Section 67. This underscores that the issue in this case is not whether the partnership, Carousel, is itself liable, but rather, whether the five shareholders of the corporation, Crosswinds Enterprises, are liable as partners.\\nIn general, \\\"[t]he effect of a belief by a person dealing with a corporation that it is a partnership is governed by the principles applicable to partnerships by estoppel.\\\" Rowley on Partnerships 2d ed. Section 57.15 (1960), see also Mulkey v. Anglin (Okla. 1933), 25 P.2d 778. Section 35-10-308, MCA, is the pertinent statutory authority, stating in part:\\n\\\"(1) When a person by words spoken or written or by conduct represents himself or consents to another representing him to anyone as a partner in a existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made who has on the faith of such representation, given credit to the actual or apparent partnership, .\\\" (Emphasis added.)\\nPartnership by estoppel is the exception to the general rule, stated above, that parties must be partners to each other before they can be liable as partners to third parties. The elements are: (1) that the person or entity represents to the third party that he is dealing with a partnership, even though no such partnership exists; and (2) that the third party rely to his detriment. Section 35-10-308, MCA; Krone v. McCann (Mont. 1982), [196 Mont. 260,] 638 P.2d 397, 39 St. Rep. 500. This reliance must be reasonable, and under the circumstances, the third party is \\\"under a duty to make reasonable inquiry to ascertain whether he was dealing with an individual or a corporation.\\\" Payne v. Lucas (Tex.Civ.App.1979), 517 S.W.2d 602, 607. The same applies to putative partnerships. Hempstead v. Allen (1953), 126 Mont. 578, 255 P.2d 342.\\nThis determination is inherently factual. Gustafson v. Taber (1951), 125 Mont. 225, 234 P.2d 471. 8 Fletcher Cyclopedia Corporations, Section 4019 (1982) points this out:\\n\\\"Liability of partners on contracts entered into and obligations incurred after the incorporation must depend upon a number of circumstances, among which are the legality and completeness of the incorporation, and notice thereof on the part of those subsequently dealing with the partners. Ordinarily the partners do not become liable on debts and obligations incurred after they have become incorporated, unless the other parties dealt with them as partners and were justified in so doing because of lack of actual or constructive notice or knowledge of their incorporation or attempted incorporation . . . The liability of a partner or firm for future debts of the . . . corporation,. . . when such debts are incurred by reason of credit having been extended because of the belief induced by the conduct of the partners that they were still interested in or carrying on the business, rests upon a principle akin to that of equitable estoppel, differing only in this respect that no specific intent to mislead need be shown.\\\" (Citations omitted.)\\nThe ultimate factual issue in this case is whether the five principals, Deines, Opsahl, Hart, Hart and Ingalls, under these circumstances, represented, or allowed themselves to be represented, as partners in Crosswinds Enterprises in operating Crosswinds Restaurant, and then whether Gamble Robinson relied thereupon. The particular issue as to Harry Opsahl's representation was whether he acted under the apparent authority to bind the shareholders as partners so as to give rise to reasonable reliance.\\nAlthough partnership by estoppel was not at issue below, we will look at the facts in the record and uphold the lower court's decision if it is ultimately correct. Shimsky v. Valley Credit Union (Mont. 1984), [208 Mont. 186,] 676 P.2d 1308, 41 St.Rep. 258; Steadman v. Hallard (1982), 197 Mont. 45, 641 P.2d 448; Kirby Co. of Bozeman v. Employment Security Division (1980), 614 P.2d 1040, 37 St. Rep. 1255. We do not affirm because the facts in the record do not provide a sufficient basis for summary judgment.\\nRespondent points out several facts supporting partnership liability. First, and most significant, are the alleged representations by Harry Opsahl to Tom Marsh, to which he testified to in deposition. In response to questioning, Opsahl stated:\\n\\\"Q. Do you feel that you would have, at that time, told them that this was a partnership operation?\\n\\\"A. I very well could have told them it was a partnership operation.\\n\\\"Q. Your statement is, then, it is possible that you advised Gamble Robinson, when the account was opened that it was a partnership operation.\\n\\\"A. It's possible.\\n\\\"Q. Do you recall supplying information to Ken Marsh about credit for the restaurant business here in Dillon?\\n\\\"A. I would say yes.\\n\\\"Q. Do you recall telling Ken Marsh that the partners in the business were Walter Deines of Missoula, Harry Opsahl, manager, Ray Ingalls of Missoula, Alan Hart of Missoula and Carrol Hart of Missoula?\\n\\\"A. I don't recall that.\\n\\\"Q. Could you have provided him with that information?\\n\\\"A. Yes.\\n\\\"Q. So, basically your position is that you could have and probably did give the information to Gamble Robinson at this time, that it was a partnership operating a restaurant.\\n\\\"A. That's possible.\\n\\\"Q. Probable.\\n\\\"A. Looking at the information that they have, probable.\\n\\\"Q. Why?\\n\\\"A. Why would I give them this information? I suppose in order to do business with them I would have had to give them some information to fill this credit application. Again, they weren't the type of supplier I would go sifter if they didn't come to me. You treat them more as a courtesy when they come. We did use them, but as a minor supplier. I don't know just when he got this information. Maybe he got it at the time it was a partnership.\\\" (Emphasis added.)\\nAnd, in another statement at the deposition: \\\"A. You know, there's five of us and we're building and opening restaurants. I guess I wasn't thinking in terms of different entities. We had the same purpose.\\\"\\nAlthough Opsahl's responses provide some support for a conclusion of partnership liability, this is not the type and weight of evidence sufficient to support summary judgment.\\nIn any event, appellant contends that these representations were beyond the scope of Opsahl's authority because of the 1979 amendments to the Partnership Agreement. To the extent that this restriction on Opsahl's authority is used to protect Carousel, this argument is irrelevant, because the issue is the partnership liability of the five shareholders of Crosswinds Enterprises.\\nGamble Robinson Co. also points out the fact that the record title to the real estate was held by Crosswinds Enterprises, the partnership. Although the failure to amend a title when the owning entity changes names does not support liability by itself, see e.g. Section 70-20-109, MCA it is evidence that can support the element of reliance. Gamble Robinson Co. nowhere alleged that it knew about the title at the time credit was given. Nor does the record unequivocally show that it relied upon the alleged partnership in granting that credit. Finally, the failure of Crosswinds to correct the billing document that apparently indicated a partnership does not itself support summary judgment.\\nIn Facit-Addo, Inc. v. Davis Financial Corp. (Ariz. 1982), 134 Ariz. 6, 653 P.2d 356, the Arizona Supreme Court overturned a ruling of summary judgment in similar circumstances. In Facit-Addo, the appellant, Facit-Addo Co. had been dealing with two principals over the course of several months, and ultimately entered into a franchise agreement with them. Things went sour, and the two alleged that they had previously incorporated and were not personally liable on the contract. Facit-Addo alleged no knowledge of the incorporation and asserted liability on the basis of partnership by estoppel.\\nThe Arizona Supreme Court emphasized that partnership by estoppel is a factual issue, and that the testimony presented did not establish a set of facts one way or another. The case was remanded. See also Kitchell Co. v. Hermansen (1968), 8 Ariz.App. 424, 446 P.2d 934, where the Arizona Supreme Court stated:\\n\\\"We agree with the appellant that A.R.S. Section 29-216 [which is the same as Section 38-10-308, MCA] may estop a person from denying that he was acting as a general partner of a company rather than as an officer of a corporation. When it is contended that such a thing has occurred, the question is whether his actions and conduct were sufficient to lead a creditor to believe that the debtor was acting as an ostensible copartner, and whether he was assuming responsibility as such. This is an issue of fact for the trial court to determine from all of the evidence presented. J. & J. Builders Supply v. Caffin, 248 Cal.App.2d 292, 56 Cal.Rptr. 365 (1967).\\\" (Summary judgment reversed.) (Emphasis added.)\\nSee also Mulkey v. Anglin (Okla. 1933), 166 Okl. 8, 25 P.2d 778; Flemmer v. Ming (Mont. 1981), 621 P.2d 934, 37 St.Rep. 1916.\\nWe find that summary judgment was improperly granted, and thus do not reach the issue of whether this case is appropriate for the doctrine of piercing of the corporate veil.\\nReversed and remanded.\\nMR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, MORRISON and SHEA concur.\"}"

mont/2500815.json

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+"{\"id\": \"2500815\", \"name\": \"In the MATTER of the DENIAL OF LICENSURE OF RUDOLPH E. WHITE\", \"name_abbreviation\": \"In re the Denial of Licensure of White\", \"decision_date\": \"1986-01-23\", \"docket_number\": \"No. 85-313\", \"first_page\": \"36\", \"last_page\": \"40\", \"citations\": \"220 Mont. 36\", \"volume\": \"220\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:08:34.424290+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, WEBER and GULBRANDSON concur.\", \"parties\": \"In the MATTER of the DENIAL OF LICENSURE OF RUDOLPH E. WHITE.\", \"head_matter\": \"In the MATTER of the DENIAL OF LICENSURE OF RUDOLPH E. WHITE.\\nNo. 85-313.\\nSubmitted on Briefs Nov. 6, 1985.\\nDecided Jan. 23, 1986.\\n712 P.2d 1344.\\nGeoffrey L. Brazier, Dept, of Commerce, Helena, for appellant.\\nMichael P. Sand, Bozeman, for respondent.\", \"word_count\": \"1199\", \"char_count\": \"7447\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the Opinion of the Court.\\nThe Board of Nursing appeals from a judgment of the District Court, First Judicial District, Lewis and Clark County which reversed the decision of the Board of Nursing and ordered the Board to license the petitioner. We affirm.\\nThe Board of Nursing raises four issues on appeal. 1) Should Rudolph E. White be licensed as a practical nurse in Montana? 2) Did the District Court disregard uncontroverted credible and material evidence? 3) Did the District Court substitute its opinion for that of the agency as to the weight of the evidence? 4) Did the District Court erroneously construe the applicable statutes? We will treat all these issues together.\\nRudolph E. White applied to the Board of Nursing of Montana for a practical nurse license by endorsement pursuant to Section 37-8-417, MCA. He was denied that license. He requested the Board review the denial of his license. The Board considered the denial of his license at its meeting and again denied the license. White requested administrative review of the board's decision. A hearing was held, witnesses were heard and exhibits were introduced. The hearing examiner concluded that the Board should issue the license. The matter was referred back to the Board of Nursing which held another hearing. The Board reversed the decision of the hearing examiner and denied the license. White petitioned for judicial review. The District Court adopted the Findings of Fact and Conclusions of Law of the hearing examiner and ordered the Board to license White.\\nThe Board appeals.\\nAfter White graduated from high school in New York, he served as an army medic for six years. After being honorably discharged from the service, he worked as a laboratory technician in cancer research for eight years. He also attended medical assistant's school for a year.\\nWhite attended Onondaga Community College in Syracuse from the spring semester of 1975 through fall semester 1977 where he earned 57 credits of the required 62 credits toward a registered nurse degree. New York allows a candidate for a registered nurse degree to take the licensed practical nurse examination after completion of three semesters of the registered nurse program if their grades are satisfactory. In 1980, White successfully passed the National Standardized Practical Nursing Examination and was licensed as a practical nurse in New York. White worked as a practical nurse in New York until 1982 when he came to Montana. His New York license is still valid.\\nWhite applied for a license by endorsement in Montana under Section 37-8-417, MCA. That Section states:\\n\\\"The board may issue a license to practice as a licensed practical nurse, without examination, to an applicant who has been licensed or registered as a licensed practical nurse or person entitled to perform like services under a different title under the laws of another state or territory if, in the opinion of the board, the applicant meets the requirements for practical nurses in this state.\\\"\\nThe requirements for practical nurses in this state are set out in Section 37-8-415, MCA.\\n\\\"An applicant for a license to practice as a licensed practical nurse shall submit to the board written evidence, verified by oath, that the applicant:\\n\\\"(1) has successfully completed at least an approved 4-year high school course of study or the equivalent as determined by the office of the superintendent of public instruction;\\n\\\"(2) is a graduate of an approved practical nursing education program that is authorized to prepare persons for licensure as practical nurses; and\\n\\\"(3) meets other qualification requirements the board prescribes in its rules.\\\"\\nThe Board argues that White cannot be licensed by endorsement in Montana, nor will the Board allow him to take the Montana examination until he graduates from an approved practical nursing education program. They argue he did not graduate since he holds no diploma. They also argue that the school White went to while it is an approved school for registered nurses, is not an approved school for licensed practical nurses. Thus they argue White should enroll in a licensed practical nurse program in Montana and graduate before he can take the Montana exam.\\nWhite argues he completed the equivalent of graduation from a school of practical nursing. Under New York law, an applicant may take the examination if he graduates from a practical nursing program or if he competes the equivalent thereof. White qualified under the equivalent preparation section of New York law and passed the standardized, nationalized examination, which is used both in New York and in Montana. His score was sufficient to constitute passing in both New York and Montana. He argues that by refusing him a license in Montana, the Board is attempting to disapprove of the educational standards of New York.\\nWe first look to the standard of review of agency decisions under MAPA. Section 2-4-704, MCA states, \\\"The [district] court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:. . . (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.\\\" In this case, the District Court reversed the decision of the agency and found the decision was arbitrary, capricious and abusive of discretion and affected by other error of law. The District Court adopted in their entirety the Findings of Fact and Conclusions of Law of the hearing examiner. The District Court found the Board's interpretation of Section 37-8-417, MCA is \\\"hypertechnical, defeats the clear intention of the legislature and would deprive the public of the services of a well qualified, probably over-qualified, licensed practical nurse.\\\"\\nWe agree with the District Court that the Board's interpretation of the statute is hypertechnical. The statute should be interpreted to mean the applicant's education has been approved and authorized by the state in which he has been licensed. The District Court is also correct that the Board's interpretation of the statute defeats the intention of the legislature. The intention of the legislature is expressed in Section 37-8-101(2), MCA.\\n\\\"In order to safeguard life and health, any person practicing or offering to practice practical nursing in this state for compensation or personal gain shall be required to submit evidence that he or she is qualified to practice and shall be licensed as hereinafter provided.\\\" Denying this applicant a license frustrates the legislative intent of safeguarding life and health. Finally, the District Court is correct in holding that denying this applicant a license deprives the public of a well-qualified applicant. It has not been argued and cannot be ar gued that the applicant's qualifications are in any way deficient for the purpose of being a licensed practical nurse in Montana.\\nThe effect of the Board's decision is to deny to qualified applicants the right to practice in Montana. The District Court did not err. We affirm.\\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, WEBER and GULBRANDSON concur.\"}"

mont/2552668.json

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+"{\"id\": \"2552668\", \"name\": \"RAD LEE PAYNE, Plaintiff and Appellant, v. BILLIE BUECHLER, Defendant and Respondent\", \"name_abbreviation\": \"Payne v. Buechler\", \"decision_date\": \"1981-05-26\", \"docket_number\": \"No. 80-227\", \"first_page\": \"311\", \"last_page\": \"331\", \"citations\": \"192 Mont. 311\", \"volume\": \"192\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T23:32:01.030150+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. JUSTICES DALY, HARRISON and SHEEHY concur.\", \"parties\": \"RAD LEE PAYNE, Plaintiff and Appellant, v. BILLIE BUECHLER, Defendant and Respondent.\", \"head_matter\": \"RAD LEE PAYNE, Plaintiff and Appellant, v. BILLIE BUECHLER, Defendant and Respondent.\\nNo. 80-227.\\nSubmitted on Briefs Dec. 17, 1980.\\nDecided May 26, 1981.\\nDissenting Opinion May 27, 1981.\\n628 P.2d 646.\\nGerald J. Neely, Billings, for plaintiff and appellant.\\nBerger, Anderson, Sinclair & Murphy, Billings, for defendant and respondent.\", \"word_count\": \"6657\", \"char_count\": \"40069\", \"text\": \"MR. CHIEF JUSTICE HASWELL\\ndelivered the opinion of the Court.\\nThis is an action by a real estate broker to collect a commisison under a written contract granting him the exclusive right to sell the property. During the term of the listing, the property owner canceled the listing and sold the property herself. From a judgment of the District Court of Yellowstone County denying recovery of the commission, the broker appeals.\\nPlaintiff and appellant is Rad Lee Payne, a licensed real estate broker in Billings, Montana. Defendant and respondent is Billie Buechler, the owner of the Red Rooster Bar in Shepherd, Montana. On July 5, 1977 the owner and broker entered into a written agreement whereby the broker was employed to sell the owner's bar, liquor license, furniture and fixtures, a three-bedroom residence and four lots for $139,000 on a 10-year installment basis at 8V2% interest. The written agreement provided, among other things:\\n\\\"THIS LISTING IS AN EXCLUSIVE LISTING and you hereby are granted the absolute, sole and exclusive right to sell or exchange the said described property. In the event of any sale by me or any other person, or of exchange or transfer of said business, per sonal property, lease(s), if any, or any part thereof, during the term of your exclusive employment, or in case I withdraw the authority hereby given prior to said expiration date, I agree to pay you the said commission just the same as if a sale had actually been consummated by you.\\\"\\nThe agreement provided that the commission was 10% of the selling price. The expiration date of the agreement and listing was January 1, 1978. The agreement provided for reasonable attorney fees in case of suit on the contract.\\nThe broker proceeded to advertise the property in the Billings Gazette, prepared and mailed brochures including the property which went to approximately 3,000 potential out-of-state buyers, and showed the property to a number of people. He sent further information to those making inquiries and responded to telephone inquiries. He expended $1,120 in attempting to sell the property.\\nThereafter on September 15, 1977, the owner sent a letter to the broker as follows:\\n\\\"Dear Rad:\\n\\\"Having decided to keep the bar, I wish to take it off the market and cancel my listing.\\n\\\"If in the future I want to list it I will give you first chance.\\n\\\"Yours truly,\\n\\\"Billie Buechler\\n\\\"Red Rooster Bar\\n\\\"Shepherd, Mont. 59079\\\"\\nTwelve days later on September 27, the owner entered into an agreement to sell the bar to a third party for $120,000.\\nThe broker filed his complaint to collect his 10% commission, interest from the date of sale, attorney fees and costs. The owner answered denying the contract was exclusive and alleging that the broker's authority was terminated prior to sale and that the purchaser was not procured through any efforts of the broker.\\nPretrial discovery consisted of interrogatories and answers of the broker and owner, depositions of the broker, his father who was associated in business with him, and the owner.\\nThe case came on for trial on March 26, 1980 before the District Court sitting without a jury. Admitted in evidence without objection were the deposition and exhibits thereto of the broker; the deposition of his father; an exhibit concerning the broker's attorney fees; the letter from the owner to the broker canceling the listing; an exhibit relating to the broker's costs and expenses; the interrogatories and answers of the broker and the owner; and a real estate listing agreement on the bar between the owner and another broker. The broker also moved for admission in evidence of the deposition of the owner excepting therefrom certain parts which the broker contended were parol evidence and inadmissible; the owner sought admission in evidence of her entire deposition; and the court reserved a ruling on the admissibility of those parts objected to and admitted the rest.\\nAt the trial the broker, the owner and a Mr. Van Lueschene testified in person, albeit briefly.\\nThe District Court entered findings of fact, conclusions of law and judgment in favor of the owner. The substance of the court's findings was that the written agreement granting the broker the exclusive right to sell the bar was entered into by the broker and owner on July 5, 1977; that the owner did not intend to grant the broker the exclusive right to sell the bar as she had at least two other listings with other real estate agencies on the same property in effect on July 5, 1977; that no consideration flowed from the broker to the owner other than their mutual contemplation that the broker would attempt to attract prospective purchasers for his own benefit; that the owner advised the broker on September 15, 1977, that the agreement was canceled; and that the broker had nothing to do with attracting the subsequent purchasers to contract the owner or to buy the property.\\nFrom these findings the court concluded that the written contract of July 5 lacked consideration and mutuality and the owner had the right to revoke it at any time; that the agreement was not an exclusive agreement to sell the owner's property; and that the owner acted in good faith in terminating the written contract and did not perpetrate a fraud on the broker. Judgment for the owner was entered accordingly.\\nWe frame the issues on appeal in this manner:\\n(1) Did the written contract between the broker and owner lack consideration and mutuality?\\n(2) Was there sufficient evidence to support the finding that the written contract was not intended to and did not give the broker the exclusive right to sell the property?\\n(3) Did the owner have the right to cancel the written contract during its term without liability for the commission?\\nLack of consideration was not raised as a defense to the written contract by the owner but becomes an issue on appeal by reason of the District Court's findings and conclusions. It has been regularly held that a broker's expenditure of time and money to find a purchaser is sufficient consideration for the promise to pay a commission and upon such expenditure of time and money, the agreement becomes bilateral and binding upon the owner. Kimmel v. Skelly (1900), 130 Cal. 555, 62 P. 1067; Garrett v. Richardson (1962), 149 Colo. 449, 369 P.2d 566. Here the owner employed the broker on a commission basis and the broker's expenditure of his time and $1,120 of his money to attract a purchaser constituted consideration for the owner's agreement to pay a commission.\\nThe District Court further found that the agreement lacked mutuality. Mutuality of obligation was created by the efforts of the broker to find a purchaser for the property on the owner's terms and the broker's expenditure of time and money in this effort. Harris v. McPherson (1922), 97 Conn. 164, 115 A. 723, 24 A.L.R. 1530.\\nWe are next faced with the issue of whether the evidence is sufficient to support the court's finding that the owner did not intend to give the broker the exclusive right to sell the property and the written contract was not an exclusive agreement to sell. The written contract plainly states on its face that the broker is granted the ex- elusive right to sell the proeprty to the exclusion of the owner or any other person. The District Court's findings and conclusions to the contrary are clearly based on the testimony of the owner that she did not intend to give the broker an exclusive listing; that she had previously given listings to other agencies which were still in effect, one of which was produced and admitted in evidence; and that the broker had written \\\"nonexclusive\\\" on her copy of the contract. She also called a Mr. Van Lueschene who testified that \\\"nonexclusive\\\" was written on her copy of the agreement. Her copy of the written agreement was never produced; she testified that she had destroyed it after her home had been vandalized and molasses and ketchup had been poured on it. With the exception of the copy of a prior and existing listing on the property with another real estate agency, all this evidence was objected to under the parol evidence rule and the objection was taken under advisement by the court.\\nThe parol evidence rule generally provides that the terms of a written agreement cannot be altered or contradicted by oral testimony subject to certain well-recognized exceptions. See section 28-2-905, MCA. The written contract supersedes all oral negotiations or stipulations which preceded or accompanied its execution. Section 28-2-904, MCA. In accord, Danielson & Ward v. Danielson & Neu (1977), 172 Mont. 55, 560 P.2d 893; Batey Land & Livestock Co. v. Nixon (1977), 172 Mont. 99, 560 P.2d 1334; Larson v. Burnett (1972), 158 Mont. 421, 492 P.2d 921.\\nThe owner contends that the foregoing parol evidence is admissible pursuant to section 26-1-103, MCA, which provides:\\n\\\"Where the declaration, act, or omission forms part of a transaction which is itself the fact in dispute or evidence of that fact, such 'declaration, act, or omission is evidence as part of the transaction.\\\"\\nNot so. This statute is simply an exception to the hearsay rule, Callahan v. C B & Q Ry. Co. (1913), 47 Mont. 401, 133 P. 687. It has nothing to do with the parol evidence rule which is a rule of substantive law.\\nThe owner also asserts that Rule 106 of the Montana Rules of Evidence and Rule 32(a)(4), M.R.Civ.P., render this parol evidence admissible. These are rules on admissibility of evidence. Parol evidence cannot be introduced because as a matter of substantive law the written agreement constitutes the entire trans^ action between the parties.\\nThe owner also argues that the evidence is admissible under an exception to the parol evidence rule set forth in section 1-4-102, MCA:\\n\\\"For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown so that the judge be placed in the position of those whose language he is to interpret.\\\"\\nThis statute relates to construction and interpretation of written instruments but is irrelevant here. The language of the contract is plain and unambiguous. Under such circumstances, the language alone controls and there is nothing for the Court to interpret or construe. Section 28-3-401, MCA and section 28-3-303, MCA. The quoted statute only applies where an ambiguity exists in the language of the contract.\\nWe have examined the cases cited by the owner which she claims support the admissibility of parol evidence that she did not intend to give the broker an exclusive listing and did not give him such a listing. None support the admissibility of such parol evidence in this case. Brown v. Homestake Exploration Co. (1934), 98 Mont. 305, 39 P.2d 168, involved a lengthy written contract ambiguous on its face and parol evidence was admitted as an aid to interpretations, a clear exception to the parol evidence rule. In Platt v. Clark(1963), 141 Mont. 376, 378 P.2d 235, parol evidence was admitted, not to vary or alter the terms of a written contract, but to show that a condition precedent to an otherwise valid and binding lease had not occurred and therefore the written lease never became effective. See generally Anno.: Applicability of Parol Evidence Rule to Written Listing Agreement of Real Estate Broker, 38 A.L.R.2d 542.\\nHere the parol evidence directly contradicts the plain and unambiguous language of the written instrument; it does not fall within any recognized exception permitting its admission in evidence, and is clearly inadmissible. Although the District Court did not rule on the broker's objection to its admission in evidence, its findings and conclusions clearly reflect that the court based them on this inadmissible evidence. This was error.\\nThe last issue concerns whether the owner had the right to cancel the written listing agreement during its term and thereby deny the broker a commission. The written agreement plainly gave the broker an exclusive right to sell the property during the term of the agreement; provided that if the owner or any other person sold or transferred the property, the owner would pay the broker the commission; and finally provided that if the owner withdrew the broker's exclusive authority to sell the property, the owner would pay the broker the commission. The District Court held that the owner had the right to revoke the agreement at any time and denied the broker any commission.\\nAs we have previously indicated, once the broker began performance under the written agreement by expenditure of his time, efforts and money to attract a purchaser on the owner's terms, the written agreement became bilateral and binding on both parties. It could not be unilaterally terminated by the owner without payment of the broker's commission. Piatt & Heath Co. v. Wilmer (1930), 87 Mont. 382, 288 P. 1021; McDonald & Co. v. Fishtail Creek Ranch (1977), 175 Mont. 53, 572 P.2d 195; Anno.: 88 A.L.R.2d 938, 966.\\nFlinders v. Hunter (1922), 60 Utah 314, 208 P. 526 is cited by the owner for the proposition that an agency relationship is revocable by the owner unless the broker has an interest in the property. The broker's contention in this case is not that the owner lacks the right to terminate the broker's authority. The broker's contention is that if the owner does revoke, he is nonetheless liable for the broker's commission by the clear language of the written agreement. Flinders does not support the owner's contention that she is not liable for the commission.\\nIn summary, the District Court's findings and conclusions that the written agreement lacked consideration and mutuality and that the agreement was not an exclusive agreement to sell the property were error as a matter of law.\\nThe judgment of the District Court denying the broker his commission is reversed. The cause is remanded to the District Court for entry of judgment for plaintiff broker in the amount of 10% of the price at which the property was sold by defendant owner to Eugene F. Schaul and Karen M. Schaul, his wife, under the agreement dated September 27, 1977, plus reasonable attorney fees and costs.\\nMR. JUSTICES DALY, HARRISON and SHEEHY concur.\\nMR. JUSTICE SHEA dissents.\"}"

mont/2596947.json

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+"{\"id\": \"2596947\", \"name\": \"MONTANA BANKERS ASSOCIATION et al., Plaintiffs and Respondents, v. MONTANA DEPARTMENT OF REVENUE, Defendant and Appellant\", \"name_abbreviation\": \"Montana Bankers Ass'n v. Montana Department of Revenue\", \"decision_date\": \"1978-06-09\", \"docket_number\": \"No. 1377\", \"first_page\": \"112\", \"last_page\": \"118\", \"citations\": \"177 Mont. 112\", \"volume\": \"177\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:46.189508+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. JUSTICE HARRISON, andL. C. GULBRANDSON, District Judge, sitting in for the Court, concur.\", \"parties\": \"MONTANA BANKERS ASSOCIATION et al., Plaintiffs and Respondents, v. MONTANA DEPARTMENT OF REVENUE, Defendant and Appellant.\", \"head_matter\": \"MONTANA BANKERS ASSOCIATION et al., Plaintiffs and Respondents, v. MONTANA DEPARTMENT OF REVENUE, Defendant and Appellant.\\nNo. 1377.\\nSubmitted March 13, 1978.\\nDecided June 9, 1978.\\nRehearing Denied June 28, 1978.\\n580 P.2d 909.\\nR. Bruce McGinnis (argued), Helena, for defendant and appellant.\\nHughes, Bennett & Cain, Luxan, Murfit & Davis, Helena, Howard J. Luxan (argued), Helena, Gough, Shanahan, Johnson & Waterman, Helena, Ronald F. Waterman (argued), Helena, Church, Harris, Johnson & Willaims, Great Falls, for plaintiffs and responsdents.\", \"word_count\": \"1901\", \"char_count\": \"11968\", \"text\": \"MR. CHIEF JUSTICE HASWELL\\ndelivered the opinion of the Court.\\nThe Montana Department of Revenue (DOR) appeals from the judgment of the District Court, Lewis and Clark County, granting summary judgment and declaratory relief to the Montana Bankers Association (MBA), various member banks, and an individual shareholder. The substance of the judgment held that stocks, bonds, treasury notes and other obligations of the United States held by Montana b\\u00e1nks were exempt from taxation under the \\\"Montana Bank Shares Tax Act\\\", and implementing provisions of the Montana Administrative Code.\\nThe procedural history of this case commenced on May 3, 1976, when MBA petitioned DOR for amendment of section 42-2.22(20)-S22400 of the Montana Administrative Code (MAC) relating to computation of the value of bank stock by MBA would specifically provide a deduction of the value of bank shares for assessment purposes. We note parenthetically that on June 25, 1976, a similar amendment was granted by DOR to competing financial institutions, specifically building and loan associations, providing a deduction of the value of United States government obligations owned by them.\\nFollowing a public hearing on MBA's petition, the hearing officer for DOR denied the banks a similar amendment on the ground that the Montana Bank Shares Tax is a tax on the owners of the shares rather than a tax on the banks's assets, the bank simply being a collection agent for the tax with a right of recourse ag.ainst the shareholders in the amount of the tax. This decision was appealed to the State Tax Appeal Board which affirmed.\\nOn September 27, 1976, MBA filed a petition for judicial review and declatory judgment in the District Court of Lewis and Clark County. Following amendment, the petition of MBA sought (1) amendment of MAC section 42-2.22(20)-S22400, (2) a declaratory judgment allowing a deduction from the assessed value of bank shares in an amount equal to the value of bank-held United States obligations, and (3) reversal of the findings, conclusions and judgment of the State Tax Appeal Board to the contrary. The thrust of MBA's position was that taxation of obligations of the United States was prohibited by the federal exemption statute (31 U.S.C., \\u00a7 742) and state taxation of such obligations was unconstitutional and illegal under the \\\"borrowing\\\" and \\\"supremacy\\\" clauses of the United States Constitution.\\nDOR answered seeking a declaratory judgment in its favor. The substance of DOR's position was that the federal exemption statute was inapplicable, that Montana's Bank Shares Tax Act and implementing provisions of the Montana Administrative Code were valid, and that the tax as assessed was collectible. The District Court granted MBA's application for an injunction and stay of collection of the tax during the pendency of the litigation.\\nAll parties filed a written stipulation of facts with the District Court. MBA and DOR each filed a motion for summary judgment in its favor. The respective motions for summary judgment were submitted to the District Court as the basis of the agreed facts, briefs and oral argument.\\nOn January 27, 1977, the District Court entered its findings of fact, conclusions of law and judgment. It granted MBA's motion for summary judgment; denied DOR's motion for summary judgment; vacated the opinion and order of DOR's hearing officer denying amendment of MAC section 42-2.22(20-S22400; and reversed the conclusions of law of the State Tax Appeal Board. The essence of the District Court's judgment was that Montana banks were \\\" entitled as a matter of law to claim as a deduction and to deduct on its bank for assessment for the taxable year 1976 those federal obligations owned by it on assessment day The District Court's judgment was based on its conclusion that the federal obligations were exempt from state taxation unde the federal exemption statute; that a contrary interpretation of state law would violate such federal exemption statute; and that the federal exemption statute is paramount and controlling under the Supremacy Clause of the United States Constitution.\\nDOR has appealed from the District Court judgment.\\nThis appeal presents a single issue: Is a Montana bank entitled as a matter of law to claim and deduct for state \\\"Bank Shares Tax\\\" purposes those United States government obligations owned by it on tax assessment day?\\nIt is axiomatic that a state may not encroach upon the borrowing power of the United States government by taxing federal obligations. This principle is derived from the \\\"borrowing\\\" and \\\"supremacy\\\" clauses of the United States Constitution and from the constitutional doctrines announced by the United States Supreme Court in McCulloch v. Maryland (1819), 4 Wheat. 316, 4 L.Ed. 579. A statutory pronouncement of this rule is found in 31 U.S.C. \\u00a7 742:\\n\\\"742. Exemption from taxation.\\n\\\"Except as otherwise provided by law, all stock, bonds, Treasury notes, and other obligatins of the United States, shall be exempt from taxation by or under State or Municipal or local authority. This exemption extends to every form of taxation that would require that either the obligation or the interest thereon, or both, be considered, directly or indirectly, in the. computation of the tax . [subject to certain exceptions not relevant to the case of appeal\\\"] (Bracketed phrase substituted.)\\nThe first sentence of this statute comprised the entire statute prior to 1959. In 1959 the statute was amended by adding the second sentence.\\nAn exception to this principle exists where Congress has consented to the State's imposition of a tax upon stockholders' interests in a national bank, measured by corporate asset values, without making any deduction for federal obligation owned by the banks. 12 U.S.C. \\u00a7 548. Van Allen v. Assessors (1865), 3 Wall. 573, 18 L.Ed. 229; National Bank v. Commonwealth (1869), 9 Wall. 353, 19 L.Ed. 701; Des Moines National Bank v. Fairweather (1923), 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191.\\n\\\" This result was reached in part on the theory that the stockholders' interests in a corporation represent a separate property interest from the corporation's ownership of its assets, so that a tax on the stockholders' interest is not a tax on the federal obligations which are included in the corporate property. This rationale has been carried over to cases involving stock of state-created banks, and thus a tax on their shareholders, though measured by corporate assets which include federal obligations is held not to offend the rule immunizing such obligations from state taxation. (Citation omitted.) Further, in levying a tax on shareholders, a state may require its payment by the corporation, as a collecting agent. (Citation omitted.)\\\" Society for Sav. v. Bowers, (1955), 349 U.S. 143, 75 S.Ct. 607, 99 L.Ed. 950.\\nBowers established the criteria for determining whether state statutes authorize a valid bank shares tax:\\n(1) Whether there is a provision entitling the state to collect the bank shares tax from depositors?\\n(2) Whether the statute relieves the bank from having to pay the tax for a depositor who withdrew his account between tax assessment day and collection day, or it the bank is required to pay, is it entitled to reimbursement from the depositor?\\n(3) If the tax is on the depositor, does the bank have the right to make itself whole, i.e. is there an express or implied right of reimbursement?\\nWe conclude that Montana statutes imposing a bank shares tax comply with these guidelines in Bowers.\\nAll of the foregoing cases were decided before the 1959 amendment to 31 U.S.C. \\u00a7 742. That amendment added the following sentence to the federal exemption statute:\\n\\\"This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax [subject to certain exemptions not relevant to the case on appeal]\\\". (Bracketed phrase substituted.)\\nThe language of the 1959 amendment is clear, unambiguous, direct and certain. The plain language provides an exemption to every form of state taxation that requires United States obligations or interest to be considered directly or indirectly in the computation of the tax. The statute speaks for itself.\\nDOR argues that the federal exception statute must be construed strictly against the taxpayer, citing a line of cases holding that tax statutes granting exemptions and deductions must be strictly construed against the taxpayer claiming them. This rule of statutory construction, however, applies only to ambiguous statutes where legislative intent is not clear from the language of the statute and has no application where, as here, the meaning of the statute is clear from its language.\\nOur holding is further strengthened by House Report No. 1148, September 3, 1959 and Senate Report No. 909, September 5, 1959, U.S. Code Cong. & Admin.News 1959, p. 2769. The Senate Report and Conference Report on the 1959 amendment indicates five purposes of the amendment, one of which reads as follows:\\n\\\"Fourth, the bill makes it clear that both the principal and interest on U.S. obligations are exempt from all State taxes except nondiscriminatory franchise, etc., taxes.\\\"\\nIn more detail the Report continues with this language:\\n\\\"D. CLARIFYING EXEMPTION OF U.S. OBLIGATIONS FROM STATE OR LOCAL TAXATION\\n\\\"Present law provides that obligations of the United States are to be exempt from taxation by or under State or local authority. The Supreme Court has held that this includes the exemption of interest on U.S. obligations from taxation by or under State or local authority. It has been pointed out to your committee, however, that one State has taken the position that the statute as now worded does not prohibit a State from including interest on Federal obligations in computing 'gross income' upon which taxable net income is determined. The bill (sec. 105) makes it clear that the exemption for Federal obligations extends to every form of taxation that would require either the obligation, or the interest on it, or both to be considered directly or indirectly in the computation of the tax, except nondiscriminatory franchise taxes (or other nondiscriminatory nonproperty taxes imposed in lieu thereof) on corporation and except estate or inheritance taxes.\\\"\\nThus, it appears to us that Congress intended to prohibit state inroads on the federal exemption statute by enacting all-inclusive prohibition against any form of state taxation that requires United States obligations to be considered, directly or indirectly, in computing the state tax.\\nWe note that neither the applicable Montana statutes nor administrative regulations expressly authorize a deduction for the value of federal obligation in computing the bank shares tax. However, the Montana statute must be construed as permitting such, deduction and administrative regulations to the contrary must fall. Any other construction would violate the federal exemption statute and be unconstitutional under the Supremacy Clause of the United States Constitution.\\nThe judgment of the District Court is affirmed.\\nMR. JUSTICE HARRISON, andL. C. GULBRANDSON, District Judge, sitting in for the Court, concur.\"}"

mont/2597761.json

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+"{\"id\": \"2597761\", \"name\": \"The STATE OF MONTANA on the relation of RICHARD L. TURK, Relator, v. The District Court of the EIGHTH JUDICIAL DISTRICT of the STATE OF MONTANA, in and for The COUNTY OF CASCADE, and the HONORABLE TRUMAN G. BRADFORD, Presiding District Judge et al., Respondents\", \"name_abbreviation\": \"State ex rel. Turk v. District Court\", \"decision_date\": \"1978-07-10\", \"docket_number\": \"No. 14246\", \"first_page\": \"245\", \"last_page\": \"251\", \"citations\": \"177 Mont. 245\", \"volume\": \"177\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:46.189508+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and HARRISON concur.\", \"parties\": \"The STATE OF MONTANA on the relation of RICHARD L. TURK, Relator, v. The District Court of the EIGHTH JUDICIAL DISTRICT of the STATE OF MONTANA, in and for The COUNTY OF CASCADE, and the HONORABLE TRUMAN G. BRADFORD, Presiding District Judge et al., Respondents.\", \"head_matter\": \"The STATE OF MONTANA on the relation of RICHARD L. TURK, Relator, v. The District Court of the EIGHTH JUDICIAL DISTRICT of the STATE OF MONTANA, in and for The COUNTY OF CASCADE, and the HONORABLE TRUMAN G. BRADFORD, Presiding District Judge et al., Respondents.\\nNo. 14246.\\nSubmitted May 4, 1978.\\nDecided July 10, 1978.\\n581 P.2d 433\\nJoseph C. Engle III, argued, Butte, for relator.\\nMike Greely, Atty. Gen., Helena, Sheir K. Sprigg, Asst. Atty. Gen., argued, Helena J. Fred Bourdeau, County Atty., Great Falls, Dennis Lopach, Helena, for respondents.\", \"word_count\": \"2194\", \"char_count\": \"13059\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the opinion of the Court.\\nThis is an application by relator, Richard L. Turk, for a writ of supervisory control to be issued against respondent courts, arising from the prosecution of the relator for two alleged violations of the Motor Carrier Act sections 8-101 through 8-132, R.C.M.1947.\\nTurk is the owner of a certain Peterbilt motor tractor and semitrailer. On June 22, 1976, Turk, as lessor, entered into a written lease agreement for the use of the tractor and trailer with Montana Pole & Treating Plant of Butte, Montana. The written lease provides in essence that the lessor leases the tractor and trailer to the lessee for a period beginning in Butte, Montana and ending in Great Falls, Montana. The lessee is to hire and have exclusive direction of all drivers of said equipment and to pay the driver's wages arid expenses and other incidental payments, including unemployment payments and social security payments. The lessee is to furnish oil, fuel, and other items necessary to operate the motor vehicle equipment during the term of the lease with the lessor to bear the cost of any repairs due to mechanical failure or expenses necessary to keep the motor vehicle in operating condition. The lessee agrees to pay for insurance during the term of the lease, and to carry public liability cargo and property damage insurance and to assume the risk for liability to any persons arising during the trailer lease. Exclusive possession and control of the equipment is vested in the lessee. The amount of rental to be paid by the lessee, however, is left blank.\\nThere is no provision in the lease that the lessee assumes, full responsibility for all regulatory fees nor does it appear that the lease was certified by the Public Service Commission.\\nThe Public Service Commission of the State of Montana is charged with the duty of enforcing the Motor Carrier Act, section 8-103, R.C.M.1947. On June 23, 1976, its enforcement officer, Albert Calkins, inspected the tractor and trailer in Cascade County while it was enroute from Butte to Great Falls during the term of the written lease, carrying a load. As a result of the inspection, he issued a complaint and summons in the Justice of the Peace Court in Cascade County against the driver of the motor vehicle equipment, Turk, charging that Turk did unlawfully operate a motor vehicle for the transportation of property for hire without having a certificate of public convenience and necessity as required by section 8-102(b), R.C.M.1947.\\nIt is admitted by the State that this charge grew from the determination by Officer Calkins that the terms of the lease under which Montana Pcfle & Treating Plant was operating the vehicle, through the driver Turk, did not comply with the requirements of the Montana Motor Carrier Act.\\nOn August 24, 1976, trial was had in Justice Court before a jury on the charge against Turk, with Turk defending himself pro se. The State called Albert Calkins as its witness, and through him introduced two written exhibits, a truck check list, and the lease agreement with Montana Pole. Defendant Turk appeared as his own witness. After closing arguments and instructions to the jury, a verdict was returned finding defendant \\\"not guilty\\\" of the charge against defendant as we have quoted it above.\\nOn October 3, 1977, Turk again entered into a written lease agreement with Montana Pole & Treating Plant for the same motor equipment, identical in terms and conditions to the written lease of June 22, 1976, except for the date. Again, the vehicle was inspected on October 3 by Officer Albert Calkins, acting on behalf of the Public Service Commission and again, on October 20, 1977, a \\\"Notice to Appear and Complaint\\\" was issued to defendant, charging him with violation of the Motor Carrier Act in the same language used in the first summons and complaint. This time Turk, appearing through counsel, filed a motion to dismiss, which the Justice Court denied. Thereafter, Turk filed with the District Court of the Eighth Judicial District, Cascade County, application for a writ of supervisory control to be issued out of the District Court to the Justice of the Peace Court for dismissal of the latest charge against Turk. That application was denied by the District Court on December 22, 1977.\\nThe Justice Court then set the second cause against Turk for trial on April 20, 1978; however, Turk filed his application for a writ in this Court on April 6, 1978.\\nThis Court set the application for adversary hearing, and oral arguments have now been heard and considered by this Court.\\nTurk raises these issues in support of his application: (l)His remedy by appeal is inadequate; (2) the Justice Court is wrongfully disregarding the applicable law with respect to the second charge against Turk; (3)Turk is being subjected to extended and needless litigation; and (4)the second charge against Turk is barred by the doctrine of collateral estoppel.\\nRespondents counter that: (1) Appeal is the proper remedy and the only remedy in a criminal cause; (2) Turk has also available to him post-conviction relief if convicted, and habeas corpus; (3) the application was not timely filed; and (4) collateral estoppel is not a bar to the prosecution of a second charge.\\nWe turn first to the issue of the application of the doctrine of collateral estoppel. This doctrine is discussed in Gessell v. Jones, (1967), 149 Mont. 418, 421, 427 P.2d 295, 296:\\n\\\" 'Collateral estoppel' as raised by this case may be considered as a branch of the doctrine of res judicata but is distinguishable from the bar to litigation normally called res judicata. The distinction is that res judicata bars the same parties from relitigating the same cause of action while collateral estoppel bars the same parties from relitigating issues which were decided with respect to a different cause of action. See Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195, for a frequently cited discussion of this distinction. The bar that arises from collateral estoppel extends to all questions essential to the judgment and actually determined by a prior valid judgment. Nadeau v. Texas Co., 104 Mont. 558, 69 P.2d 586, 593, 111 A.L.R. 874; Restatement of Judgments, \\u00a7 68.\\\"\\nThus, if the identical issues were litigated in the first charge against Turk, it appears the doctrine of collateral estoppel should apply. Respondents argue, however, that the record is insufficient here to establish collateral estoppel because the first charge against Turk was tried in Justice Court, which is not a court of record. Thus, respondents argue that other issues may have determined the verdict of not guilty under the first charge; for example, whether or not Turk was in fact operating the vehicle, whether it was in fact a \\\"motor vehicle\\\" within the meaning of the Motor Carrier Act, whether he was actually operating the vehicle for the transportation of property, whether he was operating the vehicle for hire, or whether he did in fact have a certificate of public convenience and necessity.\\nIt is the duty of the party asserting collateral estoppel to present to the court evidence of the prior judgment or sufficient portions of the record to enable the court to reach the conclusion that collateral estoppel does apply. State Farm Fire & Casualty Co. v. Century Home Components, Inc., (1976), 275 Or. 97, 550 P.2d 1185, 1188. However, in this case, that is impossible for Turk because of a lack of record in a Justice of the Peace Court, other than the stenographer's notes as to the introduction of exhibits, to which we have already adverted. Nor are we aided by the language of the charges brought against Turk in each of the complaints filed against him, because in each instance he is charged with violating the provisions of section 8-102(b), R.C.M.1947. This code provision is simply a blanket section, making it unlawful to violate any portion of or to fail to comply with the provisions of the Motor Carrier Act.\\nWhile we agree with counsel for respondents that the record ought to reflect identity of issues in order to establish collateral estoppel, we are disinclined to do so here, and thus dismiss Turk's application, on two grounds:\\n(1) Under the peculiar circumstances of this case it is impossible for Turk to supply a full record;\\n(2) In following that route, we would be regarding form rather than substance, and there can be no doubt that the real issue in each of the charges filed against Turk is whether the operation of the motor vehicle equipment under the lease arrangements comes within the provisions of the Motor Carrier Act.\\nA strong argument presented by counsel for the State is that in a criminal case, the only review available is by appeal or by post-conviction relief. In State ex rel. LaFlesch v. District Court, (1984), 165 Mont. 302, 304, 529 P.2d 1403, we pointed out that section 95-2401, R.C.M.1947, provides that Chapter 24 of the Montana Code of Criminal Procedure governs appellate review in all criminal cases and all other existing methods of review in such cases are abolished. Moreover, it is provided in section 95-2601, R.C.M.1947, that any person adjudged guilty of an offense in a court of record who has no adequate remedy by appeal and who claims a violation of the Constitution, or lack of jurisdiction, may obtain a hearing in the post-conviction remedy provided by .Chapter 26 of the Montana Code of Criminal Procedure. Yet those provisions do not quite touch this case for if Turk is convicted in the Justice Court, on appeal his case will be tried de novo in the District Court. Section 95-2009, R.C.M. 1947. Moreover, his post-conviction rights would not accrue until he had been adjudged guilty in a court of record which means after his case has been tried and he has been found guilty in the District Court. Section 95-2601, R.C.M.1947.\\nThe situation confronting us here is novel. Turk, on the one hand, is convinced of the validity of his lease arrangement; yet he has not made out a case for supervisory control by us of the lower court so as to dismiss the second charge against him. Yet if we do not act, he may be subject to charge after charge, with each operation by him under the lease, until such time as his conviction is achieved, and only then will his remedy by appeal become effective. The Public Service Commission on the other hand is charged by law to enforce the provisions of the Motor Carrier Act. It has a duty to prevent the transportation of property for hire by noncertified carriers, if Turk fits in that category. The principal bone of contention, the validity of the lease agreement, requires a speedy determination by a court of record, yet a speedy determination is far in the offing as matters now sit. It does appear that there will be extended and needless litigation between the contending parties unless it is forestalled in some way.\\nThe Public Service Commission has other avenues of action open to it. Mandamus and injunction are available to compel compliance with valid regulations affecting the public. 13Am.Jur.2d, Carriers \\u00a7 32. Turk himself has an available remedy. He could proceed under the Uniform Declaratory Judgment Act and procure in a court of record a declaration of the legal status of the lease agreements. Section 93-8901, R.C.M.1947.\\nIf we regard this matter as coming to us from the District Court, we have the power under section 95-2402, R.C.M.1947, to suspend all rules relating to review in criminal cases, and to order such proceedings as may be necessary; even if section 95-2402 does not apply, our constitutionally-granted power of general supervisory control over all other courts (Article VII, Section 2, 1972 Montana Constitution) is sufficient for us to act.\\nAccordingly, we hold an order should issue out of this Court directed to the Justice Court of the Eighth Judicial District, State of Montana, in and for the County of Cascade, and to its presiding Justice of the Peace, directing and ordering said court and justice to grant a stay of proceedings with respect to the second charge filed against Turk, conditioned upon the filing by either of the contending parties, in a court of record and of competent jurisdiction, of an action to determine the validity of the lease agreements under which Turk is transporting property without certification, and the prompt prosecution of such action to a reasonably speedy termination.\\nMR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and HARRISON concur.\"}"

mont/2605731.json

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+"{\"id\": \"2605731\", \"name\": \"In the Matter of Declaring HEATHER MARIE FISH, a youth in need of care\", \"name_abbreviation\": \"In re Declaring Fish\", \"decision_date\": \"1977-09-27\", \"docket_number\": \"No. 13755\", \"first_page\": \"201\", \"last_page\": \"208\", \"citations\": \"174 Mont. 201\", \"volume\": \"174\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:13:51.006337+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE HATFIELD and JUSTICES HASWELL, DALY and SHEA concur.\", \"parties\": \"In the Matter of Declaring HEATHER MARIE FISH, a youth in need of care.\", \"head_matter\": \"In the Matter of Declaring HEATHER MARIE FISH, a youth in need of care.\\nNo. 13755.\\nSubmitted Sept. 13, 1977.\\nDecided Sept. 27, 1977.\\n569 P.2d 924.\\nWilliam E. Berger aruged, Lewistown, Steven L. Bunch argued, Helena for appellant.\\nJ. Fred Bourdeau, County Atty., Great Falls, Thomas H. Mahan argued, David S. Pauli argued, Helena, for respondent.\", \"word_count\": \"2429\", \"char_count\": \"14457\", \"text\": \"MR. JUSTICE HARRISON\\ndelivered the opinion of the Court.\\nThis is an appeal by the natural mother of a minor child from an order of the district court, Cascade County, awarding permanent custody of the child to the Division of Child Welfare Services of the Department of Social and Rehabilitation Services of the State of Montana, with authority to consent to adoption.\\nOn January 9, 1975, the Department of Social and Rehabilitation Services (hereinafter, SRS), through their office in Great Falls, petitioned the district court of Cascade County for permanent custody of the minor child, requesting that the child be declared dependent and neglected.\\nHearing on the petition was held on May 1, 1975. The district court, Honorable Truman G. Bradford presiding, ordered that the child be and remain in the temporary custody of SRS for at least six months, with leave to renew the petition for permanent custody.\\nThe petition was renewed by SRS and a second hearing held on December 12, 1975. The district court ordered that temporary custody of the child continue with SRS for another six months, again with leave to renew the petition.\\nOn October 1, 1976, the natural mother of the child moved to vacate the order of December 12, 1975, and for an order granting permanent custody of the child to her. A hearing on the motion was held on November 4, 1976. At the close of the hearing, the district court orally ordered that temporary custody remain in SRS and physical custody be in the mother or an experimental basis. On November 30, 1976, the district court issued a written order awarding permanent custody of the child to SRS, with authority to consent to the adoption of the child. From this order, the natural mother appeals.\\nHeather Marie Fish, the minor child, was born to Linda Fish on February 23, 1974. At the time of the birth, Linda Fish was unemployed, unmarried, and receiving funds from the Aid to Dependent Children program. Several weeks after the birth, Linda Fish was committed to Warm Springs State Hospital. During this time, the total responsibility for care of the child was placed, in the child's maternal grandmother.\\nLinda Fish returned to Great Falls in July, 1974, but returned voluntarily to Warm Springs in November, 1974. Soon thereafter, SRS filed its initial petition for permanent custody, alleging that Linda Fish was unable to provide adequate care for the child. Temporary custody was awarded to SRS by a May 1, 1975 order of the district court.\\nSince November 13, 1974, and pursuant to placement by SRS, the child has remained in the continuous custody of a foster family in the Great Falls area.\\nFollowing her second release from Warm Springs, Linda Fish has undertaken employment from time to time in various positions, such employment being interrupted by the birth of a second child. Linda Fish has been and presently remains unmarried.\\nHearing on the renewed petition of SRS was held on December 12, 1975. By an order issued that same day, the district court extended custody in SRS for an additional six months.\\nOn November 4, 1976, a hearing was held on the motion of Linda Fish to vacate the order of December 12, 1975, and to obtain an order awarding permanent custody of the child to her. At the time of the hearing, the child was approximately two years and nine months of age. Evidence at the hearing was concentrated on the fitness of Linda Fish as a parent. Testimony of witnesses for the natural mother, including a social worker and psychologist who maintained close working relationships with Linda Fish, revealed improvement in the desire and ability of Linda Fish to perform the duties of a parent. It was shown that Linda Fish at present has the second child in her sole care, and that the child is clean and well cared for. Linda Fish was shown to presently have increased financial resources for the care of the children.\\nThe remaining testimony, that which was offered by SRS, related to the relationship of the child with Linda Fish as evidenced by the child's behavior relative to visitation periods. The sole witness for SRS, a social worker who had supervised the bi-monthly visitation periods and the foster family situation, testified as to the close relationship between the child and the foster parents, and a somewhat negative reaction of the child to Linda Fish. The witness testified that, in her professional opinion, the child's development would be negatively affected by a transfer in physical custody.\\nAt the close of the hearing, the district court ordered that temporary custody remain in SRS, with physical custody in the natural mother on a trial basis. However, on November 30, 1976, the district court, without having found the child to be \\\"abused, dependent or neglected\\\", entered an order placing permanent custody in SRS, with authority to consent to adoption. No explanation has been offered as to why the second written order is at variance with the prior oral order.\\nIn this appeal, the natural mother seeks review of the actions of the district court in the context of three issues. In our view, the three issues constitute but one determinative inquiry: Did the district court abuse its discretion in awarding permanent custody to SRS while failing to find that the child was \\\"abused, dependent or neglected\\\" within the meaning of section 10-1301, R.C.M. 1947? We hold that it did.\\nThe natural mother argues that the evidence introduced at the hearing of November 4, 1976, clearly supports a finding that she is presently a fit and proper parent. Our attention is focused on the fact that the district court did at no time following the hearing make a finding of parental unfitness or that the child is abused, dependent or neglected. It is maintained that such findings are an indispensable prerequisite to termination of parental rights to the care, custody and control of her child by an award of permanent custody to SRS and, ultimately, to individuals who are not the natural parents of such child.\\nSRS, in contrast, asserts that the central inquiry in a case such as this is whether a permanent transfer of custody to the social agency is \\\"in the best interests of the child.\\\" It is submitted that the best interests of the child should prevail over the desire of the natural mother for custody in this case, and that it would be in the best interest of Heather Marie Fish that her custody be permanently transferred to SRS such that she may be adopted by the foster family.\\nWe have consistently recognized that the primary responsibility for determining the proper custody of a child rests with the district court. The reasoning behind such a rule appears in the language of this Court in the case of In the Matter of the Adoption of Biery, 164 Mont. 353, 522 P.2d 1377 (1974):\\n\\\"What is, or what is not in the best interest of the child depends upon the facts and circumstances of each case. The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except upon a clear showing of abuse of discretion, (citing cases).\\\" 164 Mont. at 356, 357, 522 P.2d at 1379.\\nThis alone, however, does not give a district court the power in a case arising under the Abused, Neglected and Dependent Children or Youth Act, sections 10-1300 et seq., R.C.M.1947. Here, the court neglected to make the threshold finding that the particular child is \\\"abused, neglected or dependent\\\" prior to transferring permanent custody to a nonparent. Indeed, the court failed to make any disposition to effect the perceived \\\"best interests of the child.\\\" Section 10-1312, R.C.M.1947, in part provides:\\n\\\"(1) In a hearing on a petition under section 10-1310, R.C.M. 1947, the court shall determine whether said youth is an abused, neglected or dependent child, and ascertain as far as possible, the cause thereof.\\\"\\nSection 10-1314, R.C.M.1947, clearly states in part:\\n\\\"(1) If a youth is found to be abused, neglected, or dependent, the court may enter its judgment making any of the following dispositions to protect the welfare of the youth:\\n<\\u00ab\\n\\\"(b) transfer legal custody to any of the following:\\n\\\"(i) department of social and rehabilitation services (Emphasis added.)\\nThe above statutes make plain that a finding of abuse, neglect or dependency is the jurisdictional prerequisite to any court ordered transfer of custody. It is then, and only then, that the \\\"best interests of the child\\\" standard has its application in the resolution of the question of custody. We reaffirm our position expressed in the recent Montana case involving an attempt to transfer custody from a parent to a nonparent:\\n\\\" It is important to note the mother was never declared to be unfit to have the custody of the children. This being so, the district court had no jurisdiction to take the children away from their natural mother.\\n\\\"The 'best interests of the child' test is correctly used to determine custody rights between natural parents in divorce proceedings. In this situation the 'equal rights' to custody which both the father and mother possess under section 61-105, R.C.M.1947, are weighed in relation to each parent's ability to provide best for the child's physical, mental, and emotional needs upon the breakdown of the marital relationship. 'Fitness' of each parent is determined only in relation to the other and not to society as a whole. However, where third parties seek custody, it has long been the law in Montana that the right of the natural parent prevails until a showing of a forfeiture of this right. (Citing cases.) The Uniform Marriage and Divorce Act does not change this law. This forfeiture can result only where the parent's conduct does not meet the minimum standards of the child abuse, neglect and dependency statutes.\\\" Henderson v. Henderson, 174 Mont. 1, 568 P.2d 177, 181, (1977).\\nIn the case before us, the district court patently failed to make the required findings. We hold that the district court was therefore without power to effect a permanent transfer of custody to SRS under section 10-1314 and abused its discretion in so doing.\\nTwo other matters have been brought to this Court's attention in this case, which present serious procedural problems in cases of proposed termination of parental custody rights in favor of a non-parent or social agency. We deem these matters to merit considered discussion and resolution.\\nThe first of these considerations involved the right of a child who is the subject of a custody proceeding to independent counsel in the representation of his or her \\\"best interests.\\\" In the case at bar, following the hearing of November 4, 1976, an attorney was, by stipulation, permitted to intervene ostensibly as the \\\"court appointed attorney for the child.\\\" In reality, such attorney was retained by and represented the interests of the foster parents seeking to ultimately adopt Heather Marie Fish.\\nAs we have indicated herein, once the finding of an abused, neglected and dependent child case has been made, one of the primary considerations in a custody determination of the nature involved in this case is protection and promotion of the \\\"best interests of the child.\\\" This being the case, we refer to the holding of this Court in Guardianship of Gullette, 173 Mont. 132, 566 P.2d 396, (1977):\\n\\\" wh^re custody is in serious dispute, the court shall appoint independent counsel for the child or make a finding stating the reasons that such appointment was unnecessary.\\\" 566 P.2d at 400, 34 St.Rep. at 282.\\nThe critical word appearing in the above holding, in our view, is the word \\\"independent\\\". Cases such as the one before us typically involve at least three central interests: those of the natural parent(s), the nonparent(s), and finally, the child. The first two interests are, in the usual case, in direct conflict with each other. The child's interest, however, may be consistent with one or the other, or in some cases neither of such interests. Hence, in cases where the potential for inconsistency of interests exists, as here, the child must be afforded counsel which is independent from and disinterested in the parental/nonparental interests. In this manner, development of facts and production of evidence relevant to the child's best interests, in addition to the. evidence offered by the parents or non-parents, is best assured.\\nThe second dilemma faced by this Court arises from the length of time the child has resided with the foster family as opposed to the natural mother. The court appointed attorney for the child argues, in effect, that the fact of a lengthy period of residence with the nonparents can itself operate to prevent custody from being revested in the natural mother in a given case. We do not adopt such a position under the facts of this case. A child cannot be adversely possessed as can a piece of real property.\\nFurther, and more importantly, to adopt such a position would be to ignore the reason for the period of nonparental custody: rehabilitation of the parent such that custody of the child may be regained on a permanent basis. Any efforts at rehabilitation would prove fruitless if a parent were to believe that the longer the period of counseling or treatment, the less would be the chance that the child would be returned to him or her on a permanent basis.\\nWe do not approve of such an argument. Nor should the district courts assist in' making possible such an argument under circumstances of this case.\\nPriority should be given by the district courts of this state to prompt resolution of custody proceedings under the Abused, Neglected or Dependent Children or Youth Act, such that the dilemma created by the delay necessarily inherent in the statutory scheme is minimized.\\nThe appellant is granted a right to file a supplemental brief. The order of the district court is vacated and the cause is remanded for rehearing in accordance with this opinion.\\nMR. CHIEF JUSTICE HATFIELD and JUSTICES HASWELL, DALY and SHEA concur.\"}"

mont/2615068.json

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+"{\"id\": \"2615068\", \"name\": \"The STATE OF MONTANA, Plaintiff and Respondent, .v ARNOLD YTTERDAHL, Defendant and Appellant\", \"name_abbreviation\": \"State v. Ytterdahl\", \"decision_date\": \"1986-07-15\", \"docket_number\": \"No. 86-31\", \"first_page\": \"258\", \"last_page\": \"262\", \"citations\": \"222 Mont. 258\", \"volume\": \"222\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:28:28.739032+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. JUSTICES HUNT, WEBER, GULBRANDSON and MORRISON concur.\", \"parties\": \"The STATE OF MONTANA, Plaintiff and Respondent, .v ARNOLD YTTERDAHL, Defendant and Appellant.\", \"head_matter\": \"The STATE OF MONTANA, Plaintiff and Respondent, .v ARNOLD YTTERDAHL, Defendant and Appellant.\\nNo. 86-31.\\nSubmitted on Briefs March 28, 1986.\\nDecided July 15, 1986.\\n721 P.2d 757.\\nNye & Meyer, Jerrold L. Nye, Billings, for defendant and appellant.\\nMike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, John L. Pratt, Co. Atty., Roundup, for plaintiff and respondent.\", \"word_count\": \"1361\", \"char_count\": \"8317\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the Opinion of the Court.\\nAppellant, Arnold Ytterdahl, appeals from the judgment of the District Court, Fourteenth Judicial District, County of Musselshell, affirming the judgment of the Justice Court of Musselshell County, finding Ytterdahl guilty of the offense of disorderly conduct in violation of Section 45-8-101(l)(g), MCA. We reverse and dismiss.\\nPrior to the incident described here, Musselshell County and Ytterdahl were parties to a civil action regarding an easement on Ytterdahl's property. On May 9, 1985, a judgment was entered in that action. Thereafter, the Musselshell County Commissioners sent a letter to Ytterdahl, asking him to meet with them at 10:00 a.m. on May 20, 1985, to discuss issues and problems arising from the judgment entered in the easement action.\\nYtterdahl came to the meeting as requested. Present at the meeting were the three county commissioners, the county attorney, the commissioner of public works, and Ytterdahl.\\nIt appears that the easement was never discussed at the commissioners' meeting. Ytterdahl arrived upset, because the county, without his permission, had bladed a roadway across his property to provide access to the fairgrounds during road repairs. The State contends that Ytterdahl was \\\"discourteous, bordering on the irrational, and was hollering and screaming at the commissioners.\\\" There is evidence to that effect. When the county attorney told the defendant he could initiate a lawsuit in regard to his new complaint of trespass, the defendant \\\"mumbled a bad word,\\\" got up, stomped out and slammed the door so hard that the glass in the room rattled. The commissioners then recessed their meeting to \\\"get their feelings settled down\\\" for a a period of 15 minutes. The District Court, in a bench trial for which the defendant waived a jury trial, determined that the defendant had violated the statute under which he was charged. The complaint filed in the Justice Court against Ytterdahl was that he had committed a misdemeanor, disorderly conduct, a violation of Section 45-8-101 (l)(g), MCA, in that he \\\"knowingly disturbed the peace by disturbing or disrupting any lawful assembly or public meeting, namely, a county commissioner's meeting, by getting up, storming out of the meeting, and slamming the door.\\\"\\nThe pertinent language of Section 45-8-101, MCA, follows:\\n\\\"Disorderly conduct. (1) A person commits the offense of disorderly conduct if he knowingly disturbs the peace by:\\n\\\"(g) disturbing or disrupting any lawful assembly or public meeting;\\\"\\nYtterdahl raises two issues for our review:\\n1. Whether Section 45-8-101(l)(g), MCA, is unconstitutionally vague;\\n2. Whether the evidence was sufficient to support Ytterdahl's conviction.\\nWith respect to the first issue, the State argues that Ytterdahl is barred from raising a question of the constitutionality of a statute because he failed to raise the issue in the District Court. The State relies on the provisions of Section 46-20-104(1), MCA, as supplemented by Section 46-20-702, MCA.\\nIt is true that under Section 46-20-702, MCA, it is provided that no claim on appeal alleging an error affecting jurisdictional or constitutional rights may be noticed by us if the error was not objected to as provided in Section 46-20-104, MCA, unless certain conditions exist which are not pertinent here. While a question might be raised as to whether any appellant may be prevented on appeal from raising jurisdictional or constitutional questions, it is not necessary for us to face that problem here. Because Ytterdahl raises the issue of the sufficiency of the evidence, it is necessary for us to examine the provisions of Section 45-8-101(l)(g), MCA, as to its proper interpretation in the light of this case.\\nIt is certain that from the provisions of our statute defining disorderly conduct, in this case, at least two conditions must be shown in the evidence; (1) that the defendant knowingly disturbed the peace; and, (2) that he disturbed it through disrupting a lawful assembly or public meeting.\\nThe gravamen of the statute defining the offense is \\\"knowingly disturbing the peace.\\\" It is noted in Fischbach v. Ohio State Racing Commission (Oh.App. 1955), 147 N.E.2d 258, that in legal textbooks there is no classification known as \\\"disturbing the peace\\\" and that reference is always made to \\\"breach of the peace.\\\" Montana's statute defining disorderly conduct appears to be a hybrid of the concepts of disorderly conduct and breach of the peace. It is stated in 12 Am.Jur.2d 664, Section 1:\\n\\\"The cases generally agree that disorderly conduct is a broader term than breach of the peace, so that a person who commits a breach of the peace is necessarily guilty of disorderly conduct, but all disorderly conduct is not necessarily a breach of the peace. It should be noted that both breach of the peace and affray were offenses under the common law, whereas disorderly conduct, at least by that name, is not an offense of common-law origin, but one created by statute or ordinance.\\\"\\nIn the sense of the foregoing quoted paragraph, we seem to run contra to the general run of cases. Although disorderly conduct is in the general sense a broader term than breach of the peace, in Montana, under the statute, the crime of disorderly conduct is not committed, unless the person so acting, \\\"knowingly disturbs the peace.\\\" We hold that disturbing the peace is synonymous with breaching the peace.\\nTo establish a misdemeanor under Section 45-8-101(l)(g), MCA, it is essential to show, as an element of the offense, a disturbance of public order and tranquillity by acts or conduct not merely amounting to unlawfulness, but tending to create public tumult and incite others to break the peace. 12 Am.Jur.2d 666, Section 4. The Restatement (Second) of Torts, Section 116, defines a breach of the peace as a public offense done by violence or one causing or likely to cause an immediate disturbance.\\nThe evidence in this case fails to show that the acts of the defendant for which he was charged tended to create public tumult, or to incite others to break the peace, or that it caused an immediate disturbance by others.\\nThere is another, more important reason, however, for holding that Ytterdahl, in the circumstances of this case, did not commit an offense. It is the necessity that we give a narrow judicial interpretation of criminal statutes affecting the right of speech in order to insure that they prohibit only speech which is not constitutionally protected. State v. John W. (Me.1980), 418 A.2d 1097, 14 A.L.R.4th 1238. As the Supreme Court of Maine pointed out, the interpretation of such a criminal statute must be restricted to the kind of speech that produces or is likely to produce a clear and present danger of the substantive evils that the state may constitutionally seek to prevent. See Schenck v. United States (1919), 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470; Annot., \\\"Supreme Court's Development of the Clear and Present Danger Rule,\\\" 38 L.Ed.2d 835 (1974); Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 842, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1, 12.\\nThe right of a citizen to protest an alleged unlawful act of his government is undoubted. His right of speech, even though distasteful, must also be unfettered unless the speech creates the evil of a breach of peace. In weighing, in this case, the necessity that we preserve Ytterdahl's right of protest and right of free speech, in the circumstances here described, as against the interests of the State in preserving the peace, we hold that under the evidence here, the actual conduct of Ytterdahl was not sufficient to constitute the offense of disorderly conduct.\\nAccordingly, the judgment and conviction of the defendant herein is reversed and the cause is remanded to the District Court with instructions to dismiss the cause.\\nMR. JUSTICES HUNT, WEBER, GULBRANDSON and MORRISON concur.\"}"

mont/2616228.json

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+"{\"id\": \"2616228\", \"name\": \"SARAH GARZA, Plaintiff and Respondent, v. DENISE S. PEPPARD, Defendant and Appellant\", \"name_abbreviation\": \"Garza v. Peppard\", \"decision_date\": \"1986-07-15\", \"docket_number\": \"No. 85-21\\u20185\", \"first_page\": \"244\", \"last_page\": \"250\", \"citations\": \"222 Mont. 244\", \"volume\": \"222\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:28:28.739032+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT concur.\", \"parties\": \"SARAH GARZA, Plaintiff and Respondent, v. DENISE S. PEPPARD, Defendant and Appellant.\", \"head_matter\": \"SARAH GARZA, Plaintiff and Respondent, v. DENISE S. PEPPARD, Defendant and Appellant.\\nNo. 85-21\\u20185.\\nSubmitted on Briefs March 28, 1986.\\nDecided July 15, 1986.\\n722 P.2d 610.\\nMclntee & Whisenand, Bruce 0. Bekkedahl, Williston, N.D., for defendant and appellant.\\nPhillip N. Carter, Sidney, for plaintiff and respondent.\", \"word_count\": \"2138\", \"char_count\": \"13111\", \"text\": \"MR. JUSTICE GULBRANDSON\\ndelivered the Opinion of the Court.\\nDenise S. Peppard, the defendant, appeals from a jury verdict and subsequent judgment for Sarah Garza, the plaintiff, entered in the Richland County District Court. She raises issues of whether the District Court improperly excluded medical evidence, whether she had a fair trial after the plaintiff's attorney questioned a prospective juror on his employment with an automobile insurance company, and whether the District Court erred in failing to rule on her motion for a new trial. We affirm.\\nThe defendant rear-ended a pick-up truck in which the plaintiff was a passenger in January 1981. In May 1982 the plaintiff filed an action against defendant for damages suffered as a result of the collision. Following trial, the jury returned a verdict in favor of defendant. The District Court, however, entered judgment notwithstanding the verdict for the plaintiff which was affirmed by this Court on appeal. Garza v. Peppard (Mont. 1984), [213 Mont., 25,] 689 P.2d 279, 41 St.Rep. 1922. In that decision, this Court found no error in the District Court's action because the defendant was negligent as a matter of law for failing to keep a proper lookout. Garza, 689 P.2d at 280, 41 St.Rep. at 1924. The case was remanded to the District Court for trial on the issues of proximate cause and damages.\\nThe second trial was held in February 1985. During voir dire, counsel for the plaintiff questioned a prospective juror, Henry J. Schepens, as follows:\\n\\\"MR. CARTER: And are you still employed?\\n\\\"MR. SCHEPENS: No. I am retired.\\n\\\"MR. CARTER: You are retired, and you used to be an insurance agent; were you not?\\n\\\"MR. SCHEPENS: Right.\\n\\\"MR. CARTER: You sold car insurance; didn't you?\\n\\\"MR. SCHEPENS: Yes.\\n\\\"MR. CARTER: Would that fact render your decision in this matter biased in anyway?\\n\\\"MR. SCHEPENS: It's possible.\\n\\\"MR. CARTER: Could you explain that?\\n\\\"MR. SCHEPENS: Well, I handled a lot of claims, you know, directly and indirectly, including whiplash, and so forth. \\\"MR. CARTER: Do you have a preconceived idea about the term 'whiplash'?\\n\\\"MR. SCHEPENS: I think I could tell you, yes, I have.\\\"\\nAt this point, on Mr. Carter's request, counsel approached the bench and went into chambers. Defense counsel then objected and moved for a mistrial based on the improper mention of insurance. The District Court denied the motion and instructed the jury that this was a proper area of inquiry to determine possible bias or prejudice and to disregard any reference to insurance in all other respects.\\nDuring the presentation of defendant's case, Dr. Ronald Wright, a chiropractor who treated the plaintiff, testified about her medical condition. Dr. Wright treated the plaintiff after purchasing a chiropractic practice from Dr. Richard Pokorny who had treated her previously. The plaintiff objected, on the basis of hearsay, to any evidence, testimony, or opinion by Dr. Wright utilizing Dr. Pokorny's records because Dr. Wright did not recall using Dr. Pokorny's records. She voiced her objection prior to Dr. Wright's testimony. In chambers, the District Court ruled that Dr. Wright's testimony would be limited to his own knowledge and that he could rely on Dr. Pokorny's records only to the extent he used them in examining and treating the plaintiff.\\nThe jury returned a verdict in favor of the plaintiff for $132,095.03. The defendant then filed a motion for a new trial. Although the parties briefed and argued this motion, the District Court did not have time to rule within the 45 day time limit set out in Rule 59(d), M.R.Civ.P.\\nOn appeal, the defendant raises three issues:\\n(1) Whether defendant received a fair trial after the plaintiff's attorney questioned a prospective juror on the juror's previous employment as an automobile insurance adjuster.\\n(2) Whether the District Court erroneously excluded medical evidence and testimony from Dr. Wright which relied on a prior treating chiropractor's records.\\n(3) Whether the District Court erred in failing to rule on defendant's motion for a new trial.\\nIn the first issue, the defendant argues that she was prejudiced when the plaintiffs attorney asked a prospective juror about his employment with an automobile insurance company. She claims that the specific questions asked were unnecessary and that general introductory questions concerning possible bias or prejudice which did not mention insurance would have been adequate. In Borkoski v. Yost (1979), 182 Mont. 28, 594 P.2d 688, this Court discussed to what extent counsel could ask prospective jurors about their business relationship with insurance companies and reviewed Montana case law on the subject. Prior to 1973, the general rule was that questioning a prospective juror on investments in or business relations with insurance companies was prohibited. Borkoski, 182 Mont. at 34, 594 P.2d at 691. In 1973, in Haynes v. County of Missoula (1973), 163 Mont. 270, 287-88, 517 P.2d 370, 380, this Court adopted a general rule that \\\"if counsel acts in good faith, he may question prospective jurors on voir dire respecting their interest in, or connection with liability insurance companies.\\\" The rationale for this rule is to allow counsel to look for bias or prejudice on the part of a prospective juror enabling intelligent exercise of challenges and thus securing a fair and impartial jury. Haynes, 163 Mont. at 287-88, 517 P.2d at 380. Here, counsel for plaintiff inquired about the prospective juror's former occupation without any suggestion that defendant had liability insurance. See Rule 411, M.R.Evid. He did not repeatedly inquire about insurance of each juror, a practice condemned in Avery v. City of Anaconda (1967), 149 Mont. 495, 428 P.2d 465. He used two brief questions to one prospective juror about his past work of selling insurance and then asked whether this would bias his decision. Such a limited inquiry serves the exact purpose of the general rule adopted in Haynes, supra. We hold that this brief questioning did not prejudice the defendant and did not prevent a fair trial.\\nWe question the timeliness of the defendant's objection, as well. Counsel made no objection at the time the questions were asked. Without proper objection, this Court will not find prejudicial error. Beeler v. Butte London Copper Development Co. (1910), 41 Mont. 465, 110 P. 528.\\nThe defendant claims that the District Court erroneously excluded certain medical evidence and testimony as the second issue. When Dr. Wright testified, he stated the following: (1) he purchased Dr. Pokorny's practice and patient files which included plaintiffs file; (2) he treated plaintiff on June 5, 1981; (3) at that time she complained of headaches and neck and shoulder pain; (4) his records did not show that she ever complained of any lower back problem; (5) his treatment was only in the neck area; (6) if she had complained of a lower back injury he would have run tests to diagnose the problem prior to any treatment; and (7) based on the information he had available, she did not suffer lower back problems at the time he treated her. On cross-examination, Dr. Wright admitted he did not recall plaintiff specifically, his only session with her lasted 10-15 minutes, he took no X-rays, she may have told him about other problems but he did not remember anything else, and that her upper back and neck injuries resulted from the collision.\\nThe defendant first argues that documents containing specific written information concerning treatment and statements of Dr. Pokorny with respect to diagnosis of the plaintiff could have been admitted. The questioned documents were brought to this Court's attention as part of an appendix to defendant's brief. They were never offered as exhibits at trial and thus are not in the record as refused exhibits. A review of the transcript shows no offer of proof to the District Court on what information the proposed exhibits contained. The Colorado Supreme Court discussed a similar problem in People In Interest of M.S.H. (Colo. 1983), 656 P.2d 1294, where the appellant had not designated a tape as an exhibit, had not made an offer of proof, and stated he had not heard the tape so he did not know its contents. The tape was not part of the record on appeal. The Colorado court presumed the trial court's exclusion of the tape was correct because \\\"[bjased on this record we are unable to evaluate the admissibility of the tape, and so cannot consider [appellant's] assertion that the trial court erred in excluding it from evidence.\\\" M.S.H.,656 P.2d at 1297. Similarly, this Court is unable to evaluate or rule on the admissibility of documents which were never offered into evidence or described in the record.\\nIn Farmers State Bank of Conrad v. Iverson (1973), 162 Mont. 130, 509 P.2d 839, we condemned counsel for attaching extraneous material in appendices in an attempt to introduce evidence through the \\\"back door.\\\" This Court will not consider such material on appeal and remind counsel again that such a practice will not be tolerated.\\nDefendant's second argument in this issue is that the District Court improperly limited that part of Dr. Wright's testimony which was based on Dr. Pokorny's records. The plaintiff objected to this testimony claiming that because Dr. Wright did not specifically recall using Dr. Pokorny's records in treating the plaintiff, the records were excludable as hearsay and not within any hearsay exception. Rule 803(4), M.R.Evid. provides that: \\\"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment\\\" are not excluded by the hearsay rule. Rule 703, M.R.Evid. allows an expert to testify based on facts or data not admissible in evidence if the data is reasonably relied on by experts when forming opinions or inferences on the subject. In Klaus v. Hilberry (1971), 157 Mont. 277, 485 P.2d 54, this Court allowed a doctor to testify from his case file which included reports and documents from another doctor. We noted that the situation presented was an exception to the hearsay rule. Here, Dr. Wright was continuing Dr. Pokorny's treatment of the plaintiff and utilized Dr. Pokorny's records in his case file. He stated that he would never treat Dr. Pokorny's patients without reviewing Dr. Pokorny's records. The foundation laid could place the excluded testimony within the hearsay exception, Rule 703, M.R.Evid., and the holding in Klaus, 157 Mont. at 286, 485 P.2d at 59. The District Court erred in excluding this testimony.\\nFurther, any error would have been harmless because the defendant was not prejudiced by the failure to allow this testimony. Where evidence has been improperly excluded, but goes to prove only facts established by other evidence, the ruling is harmless error. Wollaston v. Burlington Northern, Inc. (1980), 188 Mont. 192, 612 P.2d 1277. The excluded testimony, according to statements made by counsel in chambers, would have shown that Dr. Pokorny did not record any complaints from the plaintiff about lower back problems and did not treat the plaintiff's lower back. Presumably, the defendant would use this to argue that plaintiff did not complain about this problem, she would have complained if the problem existed in order to receive medical treatment, and therefore she did not suffer from lower back problems until after her visit to these chiropractors. At best, this is negative evidence with weak evidentiary value given possible explanations for the absence of a notation in Dr. Pokorny's records. In addition, Dr. Wright testified to this same information from his own records. Dr. Ise, an orthopedic surgeon, also testified that the medical records did not reflect a report of lower back problems until about 8-10 months after the accident. This included the time during which Dr. Pokorny and Dr. Wright treated the plaintiff. The excluded evidence would not have provided any different information than the jury received through the other testimony and evidence. We hold that the exclusion of this testimony from Dr. Wright based on Dr. Pokorny's records was harmless error.\\nThe last issue the defendant raises concerns the District Court's failure to rule on her motion for a new trial. When the District Court failed to rule on the motion which raised the same issues as in this appeal, it was deemed denied under Rule 52(c), M.R.Civ.P. Since the District Court's judgment is correct, there was no error in failing to grant a new trial.\\nThe verdict and judgment of the District Court are affirmed.\\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT concur.\"}"

mont/2617072.json

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+"{\"id\": \"2617072\", \"name\": \"RICHARD A. SHORS and Ann C. Shors, Plaintiffs and Respondents, v. JERRY L. BRANCH, d/b/a Jerry L. Branch, Consulting Geologist and Producer, Defendant and Appellant\", \"name_abbreviation\": \"Shors v. Branch\", \"decision_date\": \"1986-06-05\", \"docket_number\": \"No. 85-324\", \"first_page\": \"390\", \"last_page\": \"402\", \"citations\": \"221 Mont. 390\", \"volume\": \"221\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:40:23.934330+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. JUSTICES HUNT, MORRISON, HARRISON and GULBRANDSON concur.\", \"parties\": \"RICHARD A. SHORS and Ann C. Shors, Plaintiffs and Respondents, v. JERRY L. BRANCH, d/b/a Jerry L. Branch, Consulting Geologist and Producer, Defendant and Appellant.\", \"head_matter\": \"RICHARD A. SHORS and Ann C. Shors, Plaintiffs and Respondents, v. JERRY L. BRANCH, d/b/a Jerry L. Branch, Consulting Geologist and Producer, Defendant and Appellant.\\nNo. 85-324.\\nSubmitted on Briefs March 13, 1986.\\nDecided June 5, 1986.\\n720 P.2d 239.\\nHash, Jellison, O\\u2019Brien & Bartlett, Kenneth O\\u2019Brien, Kalispell, for defendant and appellant.\\nPeterson, Peterson, Burns & Shors, William L. Burns, Cut Bank, for plaintiffs and respondents.\", \"word_count\": \"3489\", \"char_count\": \"21120\", \"text\": \"MR. JUSTICE WEBER\\ndelivered the Opinion of the Court.\\nDefendant Mr. Branch appeals a judgment of the District Court for Flathead County. That court granted a total of $52,000 in actual and punitive damages against him, following a bench trial on plaintiffs complaint of defamation and violation of easement rights. We affirm.\\nMr. Branch raises fifteen separate issues which we restate as follows:\\n1. Is plaintiffs' claim for damages for interference with their easement rights barred by statute of limitation?\\n2. Did Mr. Branch's installation and maintenance of the gate on the road extinguish the plaintiffs' easement rights by adverse possession or establish a prescriptive right to the gate?\\n3. Did the trial court err in permitting testimony concerning: 1) an incident in which Mrs. Shors and her children were \\\"buzzed\\\" by the Branch children on a snowmobile; and 2) Mr. Branch's reference to the Shors as \\\"trouble-makers\\\" and \\\"hippies\\\" and his suggestion to third parties that the Shors cabin be burned down?\\n4. Is there substantial evidence to support the court's findings that: a) Mr. Branch did not complete construction of the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless disregard for the plaintiffs' rights in constructing the gate; and c) plaintiffs were entitled to $2,000 for the loss of use of the vehicle access road?\\n5. Was the communication of the letter to the Flathead County Sheriff's Office privileged?\\n6. Was there substantial evidence to support the court's findings that: a) Mr. Branch was inspired by malice and ill-will when he forwarded the alleged defamatory letter; b) the statements contained in the letter constitute libel or libel per se; and c) the plaintiff Richard Shors was entitled to $5,000 in special and general damages in the defamation action?\\n7. Did the trial judge have authority to award punitive damages and did he err in setting the amount of punitive damages at $20,000 in the defamation action and $15,000 in the action for interference with the easement?\\n8. Did the District Court err in admitting plaintiffs' statement of attorney fees into evidence and in awarding attorney fees?\\nMr. Branch also argues that the punitive damages violated the Eighth and Fourteenth Amendments to the United States Constitution. However, he did not raise this argument below and we will not consider it now. Rule 2, M.R.App.Civ.P.; Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244.\\nJerry Branch and Carl Disel subdivided property near Essex, Montana, in Flathead County. The property borders the Middle Fork of the Flathead River. The Declaration of Restrictions governing those tracts provided for access to the river for the purchasers of the lots as follows:\\n\\\". . . This access is a specific route access, via the sixteen foot East-West access road presently in existence along the south boundary of Lots 1, 2, 3, 4 and 5, then east to the top of the hill at the south turn of the existing trail-road. From this curve, an access trail-road will be constructed by the sellers, and will run northeast along the path of most practical construction and will reach the river beach within 150 feet of survey point number seven. Future maintenance of this northeast road will be the responsibility of the lot owners of the subject lands of H.E.S. 867.\\\"\\nThe access trail-road was understood and intended to be suitable for two-wheel-drive vehicles under normal weather conditions. The sub-dividers retained an easement over one of the lots for construction of the access road. In 1972, they had a trail-road constructed over the easement. At the time it was constructed, this road was unobstructed by a gate, fence, or other obstacle, and was passable in normal conditions with a two-wheel drive vehicle.\\nMr. Branch also retained a portion of the subdivided land for his own use. Access to the river from his land was achieved by way of a private logging road. A common road led to Mr. Branch's road and the lot owners' road. For several years, Mr. Branch kept a cable gate across the road to his land, beyond the turn-off for the lot owners' access road.\\nPlaintiffs constructed a cabin on their lot in 1975. At that time, the lot owners' road had sloughed off and become strewn with rocks and trees so that it was no longer passable with a vehicle. As a result, and in the absence of extensive maintenance, the road to Mr. Branch's land was the only means of vehicular access to the river for the lot owners.\\nIn about 1976, apparently to prevent continued use of his road by others, Mr. Branch installed a metal, lock-type gate on the road. He installed the gate ahead of the fork in the two roads, thereby effectively preventing plaintiffs and the other lot owners from using either road beyond the gate. Following installation of the metal gate, Mr. Branch discouraged lot owners from attempting to widen and improve their access road. In May 1983, Mr. Branch moved the gate and bulldozed a \\\"cul-de-sac\\\" road to allow for potential lot owner vehicular passage to the river. He left a substantial mound of gravel at the site of the old gate.\\nMr. Branch also erected \\\"no trespassing\\\" signs close to the river and on the road. Plaintiffs saw these signs as an additional indication of Mr. Branch's intention to keep them away from their access road, his property, and the river.\\nPartly as a result of the above actions, the relationship between the parties deteriorated. On occasion Mr. Branch referred to the Shors as \\\"hippies\\\" and \\\"troublemakers,\\\" and suggested to third parties that plaintiffs' cabin be burned down. Also, in 1982, Mr. Branch intentionally blocked the trail to plaintiffs' cabin with logs and other debris.\\nIn July of 1982, Mr. Branch discovered one of his \\\"no trespassing\\\" signs in the river, and erroneously concluded that plaintiff Mr. Shors had torn out that sign and two others. He sent a certified letter to Mr. Shors, and a copy of the letter to the Flathead County Sheriff's Department. In the letter, he stated that Mr. Shors had been observed tearing down three steel signs at the Branch property. He accused Mr. Shors and his guests of tearing down signs \\\"in a routine manner,\\\" and threatened to file charges against Mr. Shors if the signs were not repaired or replaced. In fact, on the day in question, Mr. Shors and his family were at home in Cut Bank, Montana.\\nMr. Shors, an attorney, brought suit against Mr. Branch for interference with his access to the river and for defamation. After a bench trial lasting several days, the court entered extensive findings and conclusions. The court ordered Mr. Branch to pay plaintiffs $2,000 for lost use and enjoyment of the vehicle access road for two years preceding the filing of their complaint; to pay $15,000 in punitive damages for obstruction of the access road; to pay $10,000 in attorney fees incurred in connection with interference with plaintiffs' access rights under the contract; and to pay court costs. It also awarded plaintiffs $5,000 in special and general damages for defamation and $20,000 in punitive damages for defamation. It further ordered Mr. Branch not to interfere with plaintiffs' right to reconstruct, repair, and maintain the original lot owners' road, and enjoined Mr. Branch from obstructing or interfering with plaintiffs in the exercise of their rights under the Declaration of Restrictions and the court's order.\\nI\\nIs plaintiffs' claim for damages for interference with their easement rights barred by statute of limitation?\\nMr. Branch argues that the two-year statute of limitation for interference with real property expired two years after the metal gate was constructed, or in 1978. This action was not brought until 1982. Mr. Branch argues that it is therefore barred by the statute of limitation.\\nThe District Court concluded that: \\\"The Defendant has unlawfully and unreasonably restricted Plaintiffs' right of access, in derogation of the Declaration of Restrictions, thereby diminishing the value of their property, and their use and enjoyment thereof. Specifically, he failed to construct a proper or reasonably permanent access road, suitable for vehicular use, and prohibited Plaintiffs' and other lot-owners' free access thereto by any means in 1976 and thereafter until the filing of Plaintiffs' Amended Complaint . . .\\\" The conclusion that Mr. Branch interfered with plaintiffs' easement right is based on both his failure to construct a proper or reasonably permanent access road and his interference with plaintiffs' and the other lot owners' access to the river. The failure to construct a proper access road sounds in contract, with an 8 year statute of limitation under Section 27-2-202, MCA.\\nAs to Mr. Branch's interference with access to the river, this Court has recognized as continuing torts those torts in which the tortious act can be readily abated. Haugen Trust v. Warner (Mont. 1983), [204 Mont. 508,] 665 P.2d 1132, 1135, 40 St.Rep. 1036, 1039. In a continuing tort, recovery may be had for damages accruing within the statutory period preceding commencement of the action. Haugen, 665 P.2d at 1135. We conclude that blockage of plaintiffs' access to the river by the gate was a continuing tort, because it was easily abated. The gate was, in fact, moved prior to trial. We hold, therefore, that the statute of limitation does not bar this action, and that damages accruing within 2 years of initiation of the suit were recoverable.\\nII\\nDid Mr. Branch's installation and maintenance of the gate on the road extinguish the plaintiffs' easement rights by adverse possession or establish a prescriptive right to the gate?\\nNeither of these theories were set forth in the pleadings or in the pretrial order. They were raised by motion to amend the pleadings at the close of trial. The trial court did not make specific findings as to either theory, apparently concluding that neither had been sufficiently proven.\\nBoth adverse possession and prescriptive easement require proof of open, notorious, exclusive, adverse, and continuous possession or use for the statutory period of five years. The evidence is insufficient on several of these elements. Mr. Branch did not consistently testify that he intended to keep plaintiffs from all access to their easement. He stated at one point that he would have given the lot owners keys to the gate, if they had wished to improve their access road, and testified that access on foot, snowmobile, or motorcycle could be achieved by going around the gate. During the entire time involved here, the Declaration of Restrictions remained on file with the Clerk and Recorder, publicly stating the right to the easement. Sometimes Mr. Branch's gate was left open. He did not affirmatively convey to the lot owners at any date certain his intention that they not go beyond the gate. Mr. Branch did not place his \\\"no trespassing\\\" signs near the gate until about 1980 or 1981. We conclude that there was insufficient proof of extinguishment of the easement rights by adverse possession or of a prescriptive right to the gate.\\nIll\\nDid the trial court err in permitting testimony concerning: 1) an incident in which Mrs. Shors and her children were \\\"buzzed\\\" by the Branch children on a snowmobile; and 2) Mr. Branch's reference to the Shors as \\\"trouble-makers\\\" and \\\"hippies\\\" and his suggestion to third parties that the Shors cabin be burned down?\\nMr. Branch objects to the admission of the above testimony on the basis of relevance. Rule 401, M.R.Evid. provides that evidence is relevant if it has \\\"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.\\\" We hold that the action of the Branch children in \\\"buzzing\\\" the Shors on snowmobiles is irrelevant to the issue of malice on the part of Mr. Branch, but that the testimony's admission into evidence was harmless, given the other independent evidence of malice. We hold that the statements by Mr. Branch were relevant as they relate to Mr. Branch's malice toward plaintiffs.\\nIV\\nIs there substantial evidence to support the court's findings that: a) Mr. Branch did not complete construction of the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless disregard for the plaintiffs' rights in constructing the gate; and c) plaintiffs were entitled to $2,000 for the loss of use of the vehicle access road?\\nMr. Branch argues that these three do not have support in the record. Our standard of review is whether substantial evidence exists to support the findings and conclusions of the District Court.\\nTestimony by several parties, including Mr. Branch, that the lot owners' access road began sloughing off almost immediately supports the District Court's conclusion that no proper or reasonably permanent access road was constructed. There was testimony that only a few of the lots had been sold at the time the access road was constructed. Only a few lot owners had access to a usable road, and only for the short time until the road eroded. The fact that Mr. Branch built a locked gate in front of the turnoff to the lot owners' access road supports a conclusion of reckless disregard for plaintiffs' rights. Additionally, we defer to the trial court's opportunity to judge the demeanor of the witnesses, including defendant. We conclude that there was substantial evidence to support the findings that no proper or reasonably permanent access road was constructed and that Mr. Branch acted with malice or a reckless disregard for plaintiffs' rights in constructing the gate.\\nThe award of $2,000 in damages for loss of access to the river is supported by plaintiffs' testimony that they purchased their lot partially because it was represented as having access to the river, and that their use of their cabin and access to the river was curtailed as a result of Mr. Branch's actions. We conclude that the award of $2,000 was within the court's discretion.\\nV\\nWas the communication of the letter to the Flathead County Sheriff's Office privileged?\\nMr. Branch argues that under Section 27-1-804(1), MCA, his letter was absolutely privileged as a publication made \\\"in the proper discharge of an official duty,\\\" because citizens have an obligation to communicate their knowledge of the commission of crimes to law enforcement officials. The statute he cites does not extend to this unsolicited complaint by a private citizen. Any duty Mr. Branch had to report the destruction of his \\\"no trespassing\\\" signs was a civic duty, not an official duty. We hold that the letter was not a privileged communication.\\nVI\\nWas there substantial evidence to support the court's findings that: a) Mr. Branch was inspired by malice and ill-will when he forwarded the alleged defamatory letter; b) the statements contained in the letter constitute libel or libel per se; and c) the plaintiff Richard Shors was entitled to $5,000 in special and general damages in the defamation action?\\nAt trial, Mr. Branch testified that he was \\\"only 80% sure\\\" that he had identified Mr. Shors on the opposite bank of the river, at the time he discovered the pulled up signs. Yet he mailed a letter to the sheriff's office, in which he stated that \\\"our signs have been consistently torn down over the past years by [Mr. Shors] and [his] guests in [the Shors] nearby cabin in a routine manner,\\\" and threatened to file \\\"appropriate\\\" charges and prosecute \\\"to the fullest extent\\\" if replacement or repair of the signs was not arranged. His characterizations of the Shors as \\\"hippies\\\" and \\\"troublemakers\\\" and his suggestion that their cabin be burned down also occurred prior to this time. We conclude that there was substantial evidence to support the court's conclusion that the letter was mailed with malice.\\nIn Montana, libel is defined as:\\n\\\". . . a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.'*\\nSection 27-1-802, MCA. Judge McPhillips testified that Mr. Shors' professional reputation was jeopardized by Mr. Branch's statements in the letter. Mr. Branch testified in his deposition that the damaged signs were worth over $150; therefore, he had accused Mr. Shors of a felony. We conclude that the District Court's finding that the statements in the letter constituted libel has substantial support in the evidence.\\nThe testimony of both Mr. and Mrs. Shors as to the mental anguish, worry, and loss of worktime caused to Mr. Shors by Mr. Branch's letter supports the award of damages. Mental anguish and suffering are actual harm, and determination of the amount of damages is within the fact-finder's discretion. Gallagher v. Johnson (1980), 188 Mont. 117, 611 P.2d 613, 617, 37 St.Rep. 940, 945. We hold that there was substantial support in the record for the court's award of $5,000 in actual damages on the libel issue.\\nVII\\nDid the trial judge have authority to award punitive damages, and did he err in setting the amount of punitive damages at $20,000 in the defamation action and $15,000 in the action for interference with the easement?\\nMr. Branch argues that under Section 27-1-221, MCA, only a jury may award punitive damages. We have upheld the award of punitive damages by a district court sitting as the trier of fact. The statute has been construed to mean the trier of fact may award punitive damages. Miller v. Fox (1977), 174 Mont. 504, 510, 571 P.2d 804, 808.\\nMr. Branch also maintains that the punitive damages awarded are disproportionate to the harm done and to his wealth. This court has rejected mathematical ratios for determining punitive damages. Butcher v. Petranek (1979), 181 Mont. 358, 364, 593 P.2d 743, 746. We will not disturb the award of punitive damages, because we conclude that the amount awarded is within the trial court's discretion.\\nVIII\\nDid the District Court err in admitting plaintiffs' statement of attorney fees into evidence and in awarding attorney fees?\\nMr. Branch objects to the admission into evidence of the statement of Mr. Shors' attorney fees, alleging that an insufficient foundation was laid. He also argues that a pro se attorney is not entitled to attorney fees, that plaintiff was not the prevailing party, and that there was no clear allocation of fees between the defamation issue and the easement issue.\\nMr. Shors testified to the truth and accuracy of his detailed written statement of hourly charges for legal services. He also testified to the reasonableness of his $60 hourly fee in this matter, as did Judge McPhillips, and to the reasonableness of the fees of his co-counsel, Mr. Epstein. Mr. Branch has cited nothing which would require additional foundation, and we conclude that sufficient foundation was laid to show that the fees claimed were reasonable.\\nThis Court has held that a pro se attorney is entitled to be paid for his legal services, in a case in which award of attorney fees is proper. Winer v. Jonal Corp. (1976), 169 Mont. 247, 545 P.2d 1094.\\nParagraph 7 of the Declaration of Restrictions provides that costs of suit may be awarded against a person \\\"found guilty of a breach of the provisions of this declaration.\\\" The trial court's conclusion #2 that \\\"[t]he Defendant has unlawfully and unreasonably restricted Plaintiff's right of access, in derogation of the Declaration of Restrictions,\\\" means that the plaintiffs were entitled to their attorney fees under the contract and were the prevailing party in the contract action. They also prevailed in the defamation action. Mr. Branch's position that plaintiffs did not prevail because he was not ordered to build them a new road is unfounded. We conclude that plaintiffs were properly awarded attorney fees.\\nPlaintiffs submitted an itemized statement of pretrial attorney fees of over $13,000. Additionally, two attorneys represented plaintiffs over three days of trial. Mr. Shors testified that over half the fees both before and during trial were attributable to the easement issue. This Court will not disturb an amount set as reasonable attorney fees absent abuse of discretion. Talmage v. Gruss (1983), 202 Mont. 410, 658 P.2d 419, 420, 40 St.Rep. 176, 177. We conclude that the court did not abuse its discretion in determining that $10,000 in attorney fees were \\\"reasonably and necessarily incurred\\\" by plaintiffs in litigating their easement claim.\\nMR. JUSTICES HUNT, MORRISON, HARRISON and GULBRANDSON concur.\"}"

mont/2632251.json

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+"{\"id\": \"2632251\", \"name\": \"J.L. HAMNER, Petitioner and Appellant, v. BUTTE/SILVER BOW COUNTY, a Political Subdivision of the State of Montana and Tim Clark, Butte/Silver Bow Personnel Director, Respondents\", \"name_abbreviation\": \"Hamner v. Butte/Silver Bow County\", \"decision_date\": \"1988-08-18\", \"docket_number\": \"No. 88-44\", \"first_page\": \"271\", \"last_page\": \"276\", \"citations\": \"233 Mont. 271\", \"volume\": \"233\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:50.640375+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. JUSTICES HARRISON, SHEEHY, WEBER and GULBRANDSON concur.\", \"parties\": \"J.L. HAMNER, Petitioner and Appellant, v. BUTTE/SILVER BOW COUNTY, a Political Subdivision of the State of Montana and Tim Clark, Butte/Silver Bow Personnel Director, Respondents.\", \"head_matter\": \"J.L. HAMNER, Petitioner and Appellant, v. BUTTE/SILVER BOW COUNTY, a Political Subdivision of the State of Montana and Tim Clark, Butte/Silver Bow Personnel Director, Respondents.\\nNo. 88-44.\\nSubmitted on Briefs June 30, 1988.\\nDecided Aug. 18, 1988.\\n760 P.2d 76.\\nJohn Leslie Hamner, Butte, for petitioner and appellant.\\nRobert McCarthy, County Atty., Brad Newman, Deputy County Atty., Butte, for respondents.\", \"word_count\": \"1483\", \"char_count\": \"9948\", \"text\": \"MR. JUSTICE McDONOUGH\\ndelivered the Opinion of the Court.\\nThis appeal from the Second Judicial District questions the validity of the District Court's declaratory judgment. Appellant Hamner claims that the lower court erred in declaring his rights under Montana laws relating to veteran's preferences and procurement of public defender legal services. We affirm.\\nISSUES\\nRespondent Butte-Silver Bow County's (County's) brief provides a more workable listing of issues than Hamner's brief. Hamner's brief provides several contentions which may be addressed under the issues presented by the County. Those issues are:\\n(1) Did the District Court err in holding that the contract in question herein, calling for the provision of certain legal services to the Butte-Silver Bow local government, created an independent contractor relationship?\\n(2) Did the District Court err in holding that Section 39-30-103(7)(g), MCA, exempted the contract in question herein from the statutory employment preference claimed by Hamner?\\n(3) Did the District Court err in holding that even if Hamner were entitled to claim statutory public employment preference, his qualifications to provide the legal services in question herein were not substantially equal to those of the law firm to which the contract was awarded?\\nThe relevant facts are as follows: The County advertised for proposals to provide legal services as follows:\\n\\\"REQUEST FOR PROPOSAL\\n\\\"The Butte-Silver Bow Local Government is currently accepting written proposals from qualified individuals and firms for the provision of certain legal services. These services are associated with the requirements imposed upon counties to provide for Juvenile Defender and the representation of the Butte-Silver Bow Welfare Department in legal proceedings (53-2-303 MCA.) In addition to the above two areas, Butte-Silver Bow also requires legal representation in certain personnel management functions.\\n\\\"This request for proposals requires qualified respondents to adequately provide for the representation of inidigent [sic] youths in Youth Court, representation of the Butte-Silver Bow Welfare Department in such proceedings as required by law, and representation of the local government as deemed necessary or appropriate in areas such as grievance and arbitration matters, labor negotiations, police and fire commission proceedings, and other similar matters.\\\"\\nHamner submitted a proposal, and informed the County that he qualified for a veteran's preference in County hiring. The County rated Hamner's proposal ninth out of nine proposals, and contracted the services to a Butte law firm. The County refused to consider Hamner's veteran's preference status. Hamner objected and filed this action.\\nIn the lower court, the County contended that the veteran's preference provided by Montana law does not apply to hiring independent contractors. Hamner contended that there was no independent contract.\\nThe County also argued that Hamner could not claim veteran's preference because his proposal for the position was not substantially equal to the proposal of Henningsen and Purcell, the law firm which received the contract. Hamner responded that the advertisement provided the criteria for judging whether an applicant's qualifications were substantially equal. The same arguments are made on appeal.\\nI.\\nThe District Court found that the express language of the contract provided independent contractor status for Henningsen and Purcell. The District Court also concluded that: the County had no right to control the firm, the firm is customarily engaged in an independent practice, and that the contract to provide legal services for the County was unnecessary for the firm to continue its business. These facts led the District Court to conclude that the County awarded an independent contract.\\nHamner attacks these findings arguing that the contract provision calling for monthly payments establishes an employment relationship. We disagree. The fact that payment occurs in monthly installments does not necessarily establish an employment relationship. We hold that the District Court correctly considered the facts relevant to determining the issue. See Standard Chemical Manufacturing v. Employment Security Division (1980), 185 Mont. 241, 605 P.2d 610. Thus, Hamner's argument on this issue fails.\\nII.\\nHamner contends that the District Court erred by failing to interpret the intent and effect of the words \\\"employment\\\", \\\"employ\\\", and \\\"salaried\\\", as used in Section 7-5-2107, MCA, Section 7-4-2708, MCA, and Section 46-8-202, MCA, in conjunction with veteran's preference and funding of public defenders under Section 3-5-901, MCA. See also Section 7-6-2351, MCA; Section 7-6-2511, MCA.\\nSection 7-5-2107, MCA, states that a board of county commissioners may \\\"employ such persons as it deems necessary to assist the board in the performance of its duties\\\". Section 7-4-2708, MCA, gives contracting authority to county commissioners, upon consent of the county attorney, to \\\"employ any other attorney licensed in Montana to perform any legal service in connection with the civil business of the county.\\\" Section 46-8-202, MCA, gives counties the authority to create a public defenders office, and Section 3-5-901, MCA, directs funding, to the extent money is appropriated, for indigent defense. Section 7-6-2351, MCA, and Section 7-6-2511, MCA, also concern district court funding.\\nHamner claims that the District Court failed to provide a proper declaratory judgment by not addressing these statutes in its memorandum. Hamner also contends that legislative intent, as well as the combined effect of these statutes, mandates application of veteran's preference laws for the position at issue. We disagree.\\nFirst, in regard to the contention that the District Court inadequately addressed these statutes, we note that the lower court concluded that:\\n\\\"Section 46-8-202, MCA 1985, does not require that the contract for provision of the legal services at issue herein be a 'salaried office of public employment.' \\\"\\n\\\"Pursuant to Section 7-1-102, MCA 1985, Butte-Silver Bow County may provide any services or perform any functions not expressly prohibited by state law. Butte-Silver Bow County's power and authority must be liberally construed. Section 7-1-106, MCA 1985. There is no express prohibition under Montana law precluding or preventing Butte-Silver Bow County from entering into an independent contractor relationship for provision of the legal services at issue herein.\\\" (Emphasis added.)\\nThis conclusion adequately addresses the contentions made by Hamner as to the meaning of the words in the statutes cited by Hamner. The import of the conclusion is that the statutes do not provide Hamner with the relief he requested.\\nSecond, we agree with the District Court that neither the legislative intent nor the combined effect of the statutory words singled out by Hamner constitutes an express prohibition of independent contracts to provide public defender services. Under the facts of this case, Hamner's claim in regard to these statutes fails without such a conclusion. See Section 39-30-103(7)(g), MCA; Section 7-1-106, MCA.\\nA further argument by Hamner is that funding for the contract pursuant to Section 46-8-202, MCA, mandates an employment relationship. The funding under the statute is for a salaried public defender. We also agree with the District Court on this point, and hold that the language in the statute does not constitute an express prohibition of independent contracts.\\nIn summary, the statutes cited by Hamner provide discretion to the County to establish employee positions. They do not mandate that the positions be established to the exclusion of independent contracts.\\nWe also reject Hamner's contention that the existence of prior identical contracts which created employment rather than independent contractor relationships proves an employment relationship here. The mere existence of the prior relationships is not enough under the facts of this case to sustain the contention.\\nIII.\\nMoreover, we agree with the District Court that even if Hamner could validly claim a veteran's preference, Hamner's proposal was not substantially equal. The County provided evidence showing that Henningsen and Purcell's proposal better matched the requirements of the position.\\nHamner contends, however, that the criteria for judging applicants for the position at issue is contained solely in the advertisement (set out above) soliciting proposals, and that the only criteria in the advertisement for judging applicants is that they be attorneys. We disagree. The advertisement solicits proposals demonstrating the applicant's ability to provide extensive legal services for the County. An analysis of that ability, rather than the advertisement itself, constitutes the criteria for judging an applicant's qualifications for the position. Here, substantial evidence supports the District Court's finding that the County correctly determined that Hamner's qualifications were not substantially equal to the firm awarded the contract. Thus, this contention fails.\\nHamner also argues that the lower court's adoption of the County's proposed findings and conclusions in this case constitutes error. We disagree. Under the facts and applicable law of this case, we hold that the District Court did not act improperly in adopting the findings and conclusions proposed by the County.\\nThus, we affirm all issues and contentions.\\nMR. JUSTICES HARRISON, SHEEHY, WEBER and GULBRANDSON concur.\"}"

mont/2642212.json

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+"{\"id\": \"2642212\", \"name\": \"DEPARTMENT OF REVENUE, State of Montana, Appellant, v. ESTATE OF MICHAEL D. DWYER, Respondent\", \"name_abbreviation\": \"Department of Revenue v. Estate of Dwyer\", \"decision_date\": \"1989-03-13\", \"docket_number\": \"No. 88-373\", \"first_page\": \"405\", \"last_page\": \"411\", \"citations\": \"236 Mont. 405\", \"volume\": \"236\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T19:18:56.805952+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HARRISON, McDONOUGH, HUNT and GULBRANDSON concur.\", \"parties\": \"DEPARTMENT OF REVENUE, State of Montana, Appellant, v. ESTATE OF MICHAEL D. DWYER, Respondent.\", \"head_matter\": \"DEPARTMENT OF REVENUE, State of Montana, Appellant, v. ESTATE OF MICHAEL D. DWYER, Respondent.\\nNo. 88-373.\\nSubmitted Feb. 9, 1989.\\nDecided March 13, 1989.\\n771 P.2d 93.\\nR. Bruce McGinnis, Dept, of Revenue, Legal Affairs, Helena, for appellant.\\nRobert T. O\\u2019Leary, Butte, for respondent.\", \"word_count\": \"2458\", \"char_count\": \"14498\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the Opinion of the Court.\\nWe decide in this case that when the owner of real or personal property in Montana creates a joint tenancy in such property between himself and another or others, more than three years before his death, the tax levied by our state on the transfer of his joint tenancy interest upon his death is measured by his interest in the joint tenancy, one-half or other proper fraction under the written instrument creating the same. Section 72-16-303(2), MCA.\\nThus, in this appeal, we affirm a like holding of the District Court of the Second Judicial District, Silver Bow County.\\nThe facts are agreed to by the parties. Michael D. Dwyer was a resident of Butte, Montana, at the time of his death on February 5, 1985. His death terminated certain joint tenancies in real and personal property with David F. Cunningham, who is the deceased's nephew, and of course, not a surviving spouse nor issue of the deceased.\\nThe deceased was the sole owner of real property which he conveyed into joint tenancy with Cunningham and himself by a grant deed on November 25, 1981, which was recorded December 29, 1981. The deed created a joint tenancy between the deceased and Cunningham with the right of survivorship. Cunningham neither paid consideration in monies nor money's worth for his interest in the property, nor made any contribution toward the acquisition of the property.\\nOn October 30, 1979, out of funds completely and solely owned by the deceased, two joint bank accounts with the right of survivorship were created at Prudential Savings and Loan Association of Butte, Montana. The deceased and Cunningham were both authorized signators on the accounts. Cunningham did not deposit or withdraw any of the funds in the accounts prior to the time of Mr. Dwyer's death.\\nOut of funds completely and solely owned by the deceased, on October 31, 1979, two joint bank accounts with right of survivorship were created at the Miner's Bank of Montana, Butte, Montana. The deceased and Cunningham were both signators on the accounts. Cunningham did not deposit or withdraw any funds on the accounts prior to the time of Mr. Dwyer's death.\\nDavid Cunningham, as personal representative of the Dwyer estate, filed a request for determination of state inheritance tax on September 16, 1985. The application showed a tax due in the amount of $1,917.00. The amount was calculated upon 50% of the value of the joint tenancy estate. The Department of Revenue issued a certificate showing a tax due in the amount of $6,458.04 based on the whole value of the estate. The personal representative paid the tax to prevent the accrual of interest, and to receive the 5% discount.\\nCunningham sued in the District Court, Second Judicial District, Silver Bow County, for a proper determination of the inheritance tax due and payable upon the joint tenancy estate. The District Court ordered the Department of Revenue to recompute the amount of inheritance tax due from the surviving joint tenant, David F. Cunningham, based upon one-half of the value of the property passing on the deceased's death. The Department appealed to this Court.\\nOn appeal, the Department contends that the District Court erred as a matter of law in holding that \\u00a7 72-16-303, MCA, does not provide for the taxation of the total value of the property passing to the surviving joint tenant when the joint tenancy property was not originally owned by the surviving joint tenant.\\nThe legislature amended \\u00a7 72-16-303, MCA, in 1977, and in 1979. The Department contends that prior to 1977, the inheritance tax on a joint tenancy interest passing to a surviving joint owner was one-half or other proper fraction of the joint property, unless the surviving joint tenant could show contribution. However, in 1977, the legislature limited the contribution rule to the circumstance when a surviving joint tenant was the spouse of a deceased, and in 1979, when the joint tenancy included issue of the decedent. Because the legislature added the following language to \\u00a7 72-16-303, the Department contends the legislature changed the tax treatment for non-spouses and non-issue of the deceased from being taxed on one-half of the property to being taxed on the full value of the property unless it can be shown that the surviving joint tenant originally owned the property:\\n\\\". . . In all other cases, the full value of the property shall be taxable, except the portion thereof that originally belonged to the survivor and as to which the decedent had made no contribution; if the decedent had made a contribution to the ownership of such property, the amount of the contribution shall be taxable.\\\"\\nThe Department contends that the statute, as written, is unambiguous, but if ambiguous, under the rule of executive interpretation of statutory provisions, any doubt as to the construction of the statute is to be resolved in favor of the Department because its regulations relating to this statute adopted after 1977 require a tax levied on the full value of joint tenancy property where the survivor made no contribution to the value of the joint tenancy property when it was created. A.R.M. 42.35.232 - 42.35.234. The Department relies on cases holding that the contemporaneous construction placed on a statute by the officers chargeable with the duty of administering it is entitled to great weight. State v. King Colony Ranch (1960), 137 Mont. 145, 350 P.2d 841; State ex rel. Ebel v. Schye (1956), 130 Mont. 537, 305 P.2d 350; State ex rel. Erwin v. Warren (1950), 124 Mont. 378, 224 P.2d 142; In In re Wilson's Estate (1936), 102 Mont. 178, 56 P.2d 733, 105 A.L.R. 367.\\nWe set out in full the pertinent portions of \\u00a7 72-16-301, MCA, as to the levy of the tax:\\n\\\"72-16-301. Taxable transfers generally \\u2014 contemplation of death. A tax shall be and is hereby imposed upon any transfer of property . . . except as hereinafter provided:\\n\\\"(3) when the transfer is of property made by a resident or by a nonresident when such nonresident's property is within the state or within its jurisdiction by deed, grant, bargain, sale or gift made in contemplation of the death of grantor, vendor, or donor, or intended to take effect in possession or enjoyment at or after such death. Every transfer by deed, grant, bargain, sale or gift made within 3 years prior to the death of the grantor, vendor, or donor of a material part of his estate or in the nature of a final disposition or distribution thereof and without a fair consideration and money or money's worth shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this section, but no such transfer by deed, grant, bargain, sale or gift made before such 3-year period shall be treated as having been made in contemplation of death . . .\\\"\\nThe following is the present language of \\u00a7 72-16-303, with the 1977 amendment enclosed in parentheses and the 1979 amendment enclosed in brackets:\\n\\\"Section 72-16-303, MCA. Joint estates \\u2014 transfer by right of survivorship taxable. (1) Whenever any property, however acquired, real or personal, tangible or intangible, including government bonds of the United States, is inscribed in co-ownership form, held by two or more persons in joint tenancy or as tenants by the entirety, or is deposited in any bank or other depository in the joint names of two or more persons and payable to the survivor or survivors of them upon the death of one of them, the right of the survivor or survivors to the immediate possession or ownership is a taxable transfer.\\n\\\"(2) The tax is upon the transfer of decedent's interest, one-half or other proper fraction, as evidenced by the written instrument creating the same, as though the property to which the transfer re lates belonged to the joint tenants, tenants by the entirety, joint depositors, holders in co-ownership form, or persons, as tenants in common had been, for inheritance tax purposes, bequeathed or devised to the survivor or survivors by will, except such part thereof as may be shown to have originally belonged to the survivor and never to have belonged to the decedent when (the surviving joint tenant is a spouse) [or issue] of the decedent. In all other cases, the full value of the property shall be taxable, except the portion thereof that originally belonged to the survivor and as to which the decedent had made no contribution; if the decedent had made a contribution to the ownership of the property, the amount of the contribution shall be taxable.\\n\\\"(3) This section shall not be construed to repeal or modify the provisions of 72-16-301(3). (Emphasis added.)\\\"\\nIn discussing the issues here, we ask the reader to assume that the discussion involves situations where the joint tenancies were created more than three years prior to the death of one of the joint tenants; that the decedent was the sole owner of the property at the time of the creation of each joint tenancy; and that no contribution to the property of the joint tenancy has been made by the surviving joint tenant.\\nThe position of the Department and the effect of its regulations are that the full value of the property in the joint tenancies so created is taxable, irrespective of the language in \\u00a7 72-16-301(3), MCA, that no such transfer made before such three year period shall be treated as having been made in contemplation of death. We cannot agree that such is the effect of the statutes involved, or was the intent of the legislature in making the amendments alluded to by the Department.\\nWhen a joint tenancy is created, whether in real or personal property or both, the joint interest is owned by the several persons in equal shares. Section 70-1-307, MCA. In the case of bank deposits held by joint tenants, however, the deposit, or any part thereof, may be paid by the bank to any of the persons named as joint tenants, without regard to equality of shares, and whether the other or others be living or not. Section 32-1-442, MCA. The bank is discharged by the receipt or acquittance of the person so paid.\\nWhen, during his lifetime, and at his death, the decedent and another or others, hold any estate property as joint tenants with the right of survivorship, \\u00a7 70-20-105, -310, MCA, the interest of the decedents at the moment of his death passes to the survivor or sur vivors of the joint tenancy. The incidents of joint tenancy property at common law were a single estate in the property owned by two or more persons under one instrument or act of the parties, an equal right in all to share in the enjoyment of the property during their lives, and on the death of a joint tenant, descent of the property to the survivor or survivors. Hennigh v. Hennigh (1957), 131 Mont. 372, 309 P.2d 1022. The effect of our statutes which permits the creation of joint tenancies is to include all incidents of a joint tenancy estate at common law. First Westside National Bank of Great Falls v. Llera (1978), 176 Mont. 481, 580 P.2d 100.\\nOn the death of a joint tenant, ownership of the joint tenancy property vests immediately in the survivor, so that the estate of a decedent does not include the joint tenancy property, nor is it subject to creditor's claims for debts of a decedent. Montana's tax statutes recognize this feature by providing especially for the determination of taxes on the termination of a joint tenancy by death where there is no other estate. Section 72-16-502, MCA, provides for a special procedure for tax purposes when a joint tenant dies leaving no property which requires the appointment of a personal representative.\\nUnder Montana's statutory law, a tax is imposed, subject always to exemptions and exceptions, upon the transfer by death of the person of any state property from a decedent to another by will or intestate laws. Section 72-16-301(1), (2), MCA. Without any argument, the transfer of the right to possession of the decedent's property owned by him at his death is a taxable event. If, however, in his lifetime, the decedent within three years of his death has transferred ownership of his property in contemplation of his death, the full value of the property transferred is also taxable upon his death. Section 72-16-301(3), MCA. A transfer of ownership within three years of his death is deemed to be in contemplation of death, and thus the value thereof is fully taxable.\\nIn the case before us, the joint tenancies were established by the decedent more than three years prior to his death. \\\"No such transfer of ownership made before such three year period shall be treated as having been made in contemplation of death.\\\" Section 72-16-301(3), MCA. Since there is a specific statutory direction in \\u00a7 72-16-303(3), MCA, that the section shall not be construed to repeal or modify the provisions of \\u00a7 72-16-301(3), the latter section must be given force and effect. The position of the Department robs that latter section of any force and effect.\\nWe hold it is our plain duty when interpreting statutes relating to the same subject to give effect to all, if possible, consonant with the intent of the legislature. Section 1-2-101, MCA. Montana's statutes do not provide a gift tax upon transfers of property made by a person during his lifetime except such gifts as are made in contemplation of death. The effect of the Department's interpretation of the statutes is to impose a tax upon such transfers although not levied until the grantor's or donor's death, whether or not made in contemplation of death. We do not agree with the Department that under \\u00a7 72-16-303(2), MCA, only wives and issue of the decedent may take advantage of the provisions of \\u00a7 72-16-301(3), MCA, which excludes from taxation transfers not made in contemplation of death, or made more than three years before the death of the grantor. We hold in this case that one-half of the values of the joint tenancy estate only is taxable. The regulations of the Department which would require a contrary conclusion are inconsistent with statutory law, and thus have no effect. Section 2-4-305(6)(a), MCA.\\nAccordingly, we affirm the District Court.\\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HARRISON, McDONOUGH, HUNT and GULBRANDSON concur.\"}"

mont/2662001.json

@@ -0,0 +1 @@
+"{\"id\": \"2662001\", \"name\": \"LINDA TREUTEL and Terry Treutel, Plaintiffs and Appellants, v. FRANCES JACOBS, Defendant and Respondent\", \"name_abbreviation\": \"Treutel v. Jacobs\", \"decision_date\": \"1989-12-28\", \"docket_number\": \"No. 89-420\", \"first_page\": \"405\", \"last_page\": \"408\", \"citations\": \"240 Mont. 405\", \"volume\": \"240\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:50.512845+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES WEBER, SHEEHY, McDONOUGH and BARZ concur.\", \"parties\": \"LINDA TREUTEL and Terry Treutel, Plaintiffs and Appellants, v. FRANCES JACOBS, Defendant and Respondent.\", \"head_matter\": \"LINDA TREUTEL and Terry Treutel, Plaintiffs and Appellants, v. FRANCES JACOBS, Defendant and Respondent.\\nNo. 89-420.\\nSubmitted on Briefs Nov. 21, 1989.\\nDecided Dec. 28, 1989.\\nRehearing Denied Jan. 29, 1990.\\n784 P.2d 915.\\nKim L. Ritter, Milodragovich, Dale & Dye, Missoula, for plaintiffs and appellants.\\nShelton C. Williams, Williams Law Firm, Missoula, for defendant and respondent.\", \"word_count\": \"1017\", \"char_count\": \"6234\", \"text\": \"JUSTICE HUNT\\ndelivered the Opinion of the Court.\\nLinda and Terry Treutel, plaintiffs and appellants, appeal from a summary judgment entered by the District Court of the Fourth Judicial District, Ravalli County, in favor of Frances Jacobs, defendant and respondent. We affirm.\\nThe sole issue raised on appeal is whether the District Court properly granted defendant's motion for summary judgment based on plaintiff's failure to state a claim on a legally recognizable theory upon which relief could be granted.\\nIn 1987, Linda Treutel and her family resided on property in Ravalli County held in trust. The property was formerly owned by Treutel's parents. The beneficiaries of the trust were Linda, her two siblings and her mother, Frances Jacobs. Mr. Jacobs, as trustee, procured a comprehensive personal liability insurance policy issued by Farmers Insurance Group on the property which remained in effect from April 3, 1987 to April 3, 1988.\\nOn April 5, 1987, Linda and her husband were repairing a fence on the property with a pair of pliers. A piece of metal chipped off the pliers injuring Linda's right eye. At the time of the accident, Jacobs was living in Alaska and was unaware that the fence was broken or that the Treutels intended to fix it.\\nLinda submitted a claim to Farmers for her medical expenses and lost income. Farmers paid out $7,024.30 on her claim. Linda's attorney contacted Farmers' claims adjuster, Gougler, who informed the attorney that coverage existed for the accident. Gougler then sent Linda's attorney a memo confirming the conversation and stating, \\\"We will look forward to discussing settlement possibilities at your earliest convenience.\\\"\\nSettlement negotiations subsequently failed, and on October 22, 1988, Linda filed a complaint alleging injury as a result of the accident that occurred on the trust property. The Treutels alleged damages for Linda's future medical expenses, pain and suffering, loss of customary way of life, cost of suit and other relief deemed just and proper and for Terry's loss of consortium. The complaint did not allege negligence nor wrongdoing on the part of Jacobs.\\nLinda filed a motion for partial summary judgment on February 24, 1989. Jacobs then filed a brief in opposition to plaintiff's motion for summary judgment and a motion for summary judgment on March 20, 1989. A hearing on the motions was held on June 7, 1989. On June 19, 1989, the District Court entered its order and judgment denying Linda's motion and granting Jacobs' motion. From the order, Linda appeals.\\nThe court granted Jacobs' motion for summary judgment based on its finding that Linda failed to state a legally recognizable claim upon which relief could be granted. Rule 8(a), M.R.Civ.P., provides in part:\\n\\\"A pleading which sets forth a claim for relief, . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which he deems himself entitled.\\\" (Emphasis added.)\\nWhile Linda's complaint sets forth the facts pertaining to the day of the accident and demands relief therefore, it does not allege that Jacobs was negligent in any manner nor does it allege that Jacobs breached any legal duty owed to Linda. While this Court has long recognized that a complaint is to be construed in the light most favorable to the plaintiff, Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324, we cannot say that Linda's complaint, even when viewed favorably to her position, set forth a claim upon which relief can be granted. As we stated in Rambur v. Diehl Lumber Co. (1963), 142 Mont. 175, 179, 382 P.2d 552, 554:\\n\\\". . .a complaint must state something more than facts which, at most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief.\\\"\\nJacobs' policy reads in pertinent part:\\n\\\"We shall pay all damages from an occurrence which an insured is legally liable to pay because of bodily injury or property damage covered by this policy.\\\" (Emphasis added.)\\nHere, Linda does not claim that Jacobs breached any legal duty owed to her nor was negligent in any manner. Thus, under the terms of the policy, Jacobs is not legally liable for her accident. Jacobs' insurance company is under no obligation to pay for that which she, herself, is not liable.\\nNonetheless, Linda claims that Farmers, through its adjuster, Gougler, admitted liability and are now bound by the admission. While it is true that during a telephone conversation, Gougler told Linda's attorney that Linda's accident was covered and then sent a memo confirming the conversation, the statement and memo were not admissible as evidence to prove liability.\\nIt is clear from the language of the memo that the statements were made as part of a settlement negotiation process. It read in part,\\n\\\"We will look forward to discussing settlement possibilities at your earliest convenience.\\\" (Emphasis added.) Rule 408, M.R.Evid., provides in that, \\\"Evidence of conduct or statements made in compromise negotiations is . . . not admissible.\\\" Further, under \\u00a7 33-15-504(3), MCA, an insurer does not waive policy provisions nor defenses by engaging in settlement negotiations.\\nAs evidence, the statement and memo are inadmissible as a matter of law. As we stated in Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509, a party moving for summary judgment must prove that he is entitled to summary judgment as a matter of law by demonstrating an absence of any genuine issue of material fact. Discarding the inadmissible evidence, there remains no genuine issue of material fact in this case. The District Court properly granted Jacobs' summary judgment.\\nAffirmed.\\nJUSTICES WEBER, SHEEHY, McDONOUGH and BARZ concur.\"}"

mont/2719556.json

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+"{\"id\": \"2719556\", \"name\": \"STATE OF MONTANA, Plaintiff and Respondent, v. JAMES LEE CAMERON, Defendant and Appellant\", \"name_abbreviation\": \"State v. Cameron\", \"decision_date\": \"1992-02-20\", \"docket_number\": \"No. 91-029\", \"first_page\": \"95\", \"last_page\": \"110\", \"citations\": \"253 Mont. 95\", \"volume\": \"253\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T01:14:50.657014+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.\", \"parties\": \"STATE OF MONTANA, Plaintiff and Respondent, v. JAMES LEE CAMERON, Defendant and Appellant.\", \"head_matter\": \"STATE OF MONTANA, Plaintiff and Respondent, v. JAMES LEE CAMERON, Defendant and Appellant.\\nNo. 91-029.\\nSubmitted on Briefs November 21, 1991.\\nDecided February 20, 1992.\\n49 St.Rep. 150.\\n253 Mont. 95.\\n830 P.2d 1284.\\nFor Appellant: Michael Donahoe, Helena.\\nFor Respondent: Marc Racicot, Attorney General; Joseph E. Thaggard; Mike McGrath, County Attorney, Helena.\", \"word_count\": \"5640\", \"char_count\": \"33709\", \"text\": \"JUSTICE WEBER\\ndelivered the Opinion of the Court.\\nDefendant, James Lee Cameron, was charged with two counts of felony sexual assault pursuant to \\u00a7 45-5-502, MCA. On September 4, 1990, in the District Court for the First Judicial District, Lewis and Clark County, defendant pled guilty to both counts pursuant to an Alford plea. Subsequently, defendant moved to withdraw his guilty plea. The District Court denied his motion and sentenced defendant to concurrent terms of twenty years imprisonment, with five years suspended on each count. Defendant appeals. We affirm.\\nThe issues for our review are:\\n1. Did the District Court abuse its discretion when it refused to allow the defendant to withdraw his pleas of guilty?\\n2. Did the defendant receive ineffective assistance of counsel with respect to his attorney's advice that he should enter Alford pleas to the charged offenses rather than proceeding to trial?\\n3. Did the District Court deny the defendant due process of law in violation of the Montana and United States Constitutions?\\n4. Did a sufficient factual basis exist for the District Court to accept the defendant's pleas of guilty?\\n5. Did the District Court commit reversible error by failing to arraign the defendant on the charges set forth in the amended information?\\nOn April 18,1990, the State charged the defendant by information with two counts of felony sexual assault, pursuant to \\u00a7 45-5-502, MCA. Count I arose from allegations that defendant had sexually molested his daughter, M.S., between 1985 and 1989. Count II arose from allegations that defendant sexually molested E.R, the daughter of a woman with whom defendant had an affair, between 1985 and 1989. Both victims were nine or ten years old at the time the State filed the information.\\nOriginally, defendant pled not guilty to both charges. Then, two weeks before the trial date, his attorney, Cort Harrington, moved the District Court for leave to withdraw as defendant's attorney. The motion was granted and the trial was postponed.\\nOn May 29, 1990, the District Court appointed Mayo Ashley as defense counsel. As the September trial date closed in, defendant became dissatisfied with Ashley's representation. About one week before trial defendant asked Cort Harrington to resume his defense. Harrington refused.\\nTwo days before trial, because he was feeling stressed, defendant met with Lynn Pillman, a licensed professional counselor. During the meeting defendant expressed to Ms. Pillman his disappointment with Ashley's representation and told Ms. Pillman that he did not wish to force the victims to testify in court. Ms. Pillman explained to defendant that, although she was not an attorney, she had previously counseled a client who pled guilty and later, after serving some time without illegal involvement, changed the plea to not guilty. She suggested defendant talk to his attorney about entering such a plea.\\nThe morning of trial defendant asked Ashley about an Alford plea. Later that morning, defendant decided to enter Alford pleas to both counts of the information.\\nPrior to entry of the pleas the District Court and defendant had the following exchange.\\nTHE COURT: You are entitled to have the amended information read to you in its entirety. Do you wish to have it read?\\nMR. CAMERON: No, Your Honor.\\nTHE COURT: I think we've gone over this once before, but, the maximum possible punishment for sexual assault is imprisonment in the state prison for a term not to exceed 20 years and a fine of not more than $50,000. Now, that's on each count. Now, these are separate offenses, and under Montana law, it is possible to make sentences run consecutively, that is, one after the other. So, the maximum amount of prison time that could be imposed would be 40 years in the state prison and a fine \\u2014 fines up to $100,000; do you understand that?\\nMR. CAMERON: Yes, Your Honor.\\nTHE COURT: Do you understand that you are entitled to trial by jury in this matter?\\nMR. CAMERON: Yes, Your Honor.\\nTHE COURT: Now, we had a discussion about the psychologist in chambers, but other than that, if you have witnesses that had relevant information, do you understand that you could have called them to testify, that is, anybody that might have been a witness to the situation. I'm not talking about somebody who did an independent evaluation or anything like that, we're talking about a witness to what went on; do you understand that?\\nMR. CAMERON: Yes.\\nTHE COURT: Now, if you went to trial and you were found guilty,you could appeal your conviction to the Montana Supreme Court. You would be represented by an attorney during that appeal, do you understand that?\\nMR. CAMERON: Yes.\\nTHE COURT: Now, you have \\u2014 you cannot be compelled to incriminate yourself. That means that you have a right to remain silent and that can't be used against you. Mr. McGrath couldn't argue to the jury that Cameron must be guilty just because he's sitting there not saying anything.He's not saying anything dif ferent than our witnesses. Do you understand he can't make that kind of an argument to the jury?\\nMR. CAMERON: Yes.\\nTHE COURT: How is your head today, is it clear?\\nMR. CAMERON: Pretty mixed up.\\nTHE COURT: But, you know what's going on?\\nMR. CAMERON: Yes, Your Honor.\\nTHE COURT: Now, you've had \\u2014 we were supposed to start trial about an hour and a half ago. You have had an opportunity to consult with \\u2014 I don't know who it was, but you made some phone calls and consulted with a person other than Mr. Ashley; is that correct?\\nMR. CAMERON: Yes, Your Honor.\\nTHE COURT: And you know what's going on?\\nMR. CAMERON: Yes.\\nTHE COURT: I understand from Mr. Ashley, that you wish to enter what's called an Alford plea. I think he's probably explained to you that's the name of the case o\\u00ed North Carolina versus Alford or Alford versus North Carolina, I can't remember. But, anyway, it's a United States Supreme Court case which essentially says you enter a plea without having to tell me specifically what happened. And do you generally understand what an Alford plea is?\\nMR. CAMERON: Yes, Your Honor.\\nTHE COURT: That's been explained to you. Do you have any questions about it?\\nMR. CAMERON: No, Your Honor.\\nTHE COURT: Now, if you enter a plea, even though it may be an Alford plea, do you understand that you can't later come in here and withdraw that plea and ask that that plea be withdrawn? Do you understand?\\nMR. CAMERON: Yes, Your Honor. (Emphasis supplied.)\\nFollowing this colloquy, defendant entered a plea of guilty to each count pursuant to the Alford case. Before accepting the plea, the District Court again\\nasked defendant if he understood the implications of an Alford plea. After the defendant said he did the District Court asked for an offer of proof and then accepted the plea. It also ordered that defendant undergo both a sex offender evaluation and a presentence investigation and set sentencing for November 1, 1990.\\nPrior to sentencing, defendant moved the District court for leave to withdraw his guilty pleas for the following reasons.\\n(1) \\\"Good cause'\\\" exists within the meaning of \\u00a746-16-105, MCA to allow the Defendant to withdraw his guilty plea because it will prevent the possibility of convicting an innocent man;\\n(2) The Defendant erroneously thought that despite his guilty plea he would have an opportunity to prove his innocence either before or after sentencing and the Defendant reached this conclusion based on advise he was given by his Court appointed counsel;\\n(3) The Court erred in not granting a continuance to allow the Defendant to obtain new counsel since no hearing was held to determine whether the Defendant's concerns about his Court appointed counsel were true;\\n(4) The Court erred in denying the Defendant's motion for an examination of the alleged victims by a defense psychologist and the denial of this motion deprived the Defendant of his rights to due process and equal protection under the Montana and United States constitutions.\\nAfter a hearing, the District Court denied defendant's motion for lack of good cause shown. Defendant appeals.\\nI\\nDid the District Court abuse its discretion when it refused to allow the defendant to withdraw his pleas of guilty?\\nDefendant argues that in entering an Alford plea he still maintained his innocence. He further contends that he was confused about the Alford plea and that his case is defensible.\\nThe State maintains that defendant voluntarily pled guilty and understood the consequences of a guilty plea. The State also contends that defendant's pleas of guilty were given intelligently and thus, the pleas were valid. We agree.\\nSection 46-16-105(2), MCA, provides:\\nAt any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. (Emphasis added).\\nDefendant has failed to show good cause for the withdrawal of his guilty pleas.\\nThe determination of good cause is a matter of discretion for the district court and absent an abuse of that discretion, this Court will uphold the district court's refusal to permit the withdrawal of a guilty plea. State v. Miller (Mont. 1991), [248 Mont. 194,] 810, P.2d 308, 310, 48 St.Rep. 389, 390. In Miller we stated:\\nWe recently reviewed the subject of a defendant's request to withdraw a guilty plea in Benjamin v. McCormick (1990), 243 Mont. 252, 792 P.2d 7. \\\"When a guilty plea is based upon a fundamental mistake or misunderstanding as to its consequences, the sentencing court, at its discretion, may allow the defendant to withdraw the plea.\\\" Benjamin, 792 P.2d at 10. We further noted:\\n\\\"A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered under some mistake or misapprehension. Each case must be examined on its own record .\\\"\\nMiller, 810 P.2d at 310.\\nThere is nothing in the record to establish that the defendant's plea was based upon a fundamental mistake or misunderstanding as to its consequences. In a similar manner, there is nothing in the record to indicate that the defendant was ignorant of his rights and the consequences of his act, or that he was unduly or improperly influenced by hope or by fear, or that his plea was entered under some mistake or misapprehension. As required in Miller, we have reviewed the record in this case and conclude that the District Court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. We affirm that action of the District Court.\\nA key conclusion on the part of the dissent is that defendant's attorney failed to explain that there was no possibility of a favorable sex offender evaluation if the defendant continued to maintain his innocence. It is that conclusion which leads the dissent to suggest that defendant should be allowed to withdraw his plea of guilty. The record in this case does not show that if the defendant maintained his innocence, there was no possibility of a favorable sex offender evaluation. That conclusion is reached by going outside the record. We therefore restate our previous conclusion that the record does not establish that the defendant's plea was based upon a fundamental mistake or misunderstanding as to its consequences.\\nII\\nDid the defendant receive ineffective assistance of counsel with respect to his attorney's advice that he should enter Alford pleas to the charged offenses rather than proceeding to trial?\\nDefendant maintains that Mr. Ashley did not provide him with effective assistance of counsel with respect to his Alford plea. He contends that there was nothing for him to gain by entering sea. Alford plea since he maintained his innocence. The State urges that defendant's claim is without merit and that he has failed to establish that Mr. Ashley's assistance was ineffective.\\nThe United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 687, set forth the test for determining when counsel is ineffective. The defendant must establish that: (1) the counsel's performance was deficient; and (2) the deficient performance so prejudiced the defendant as to deprive him of a fair trial. With regard to the Strickland test, this Court has stated:\\nUnder the two-pronged test set forth in Strickland, the defendant must first demonstrate that counsel's performance was deficient. To demonstrate that a counsel's performance was deficient, defendant must prove that counsel's performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must demonstrate that the counsel's deficiency was so prejudicial that the defendant was denied a fair trial. To satisfy this requirement, the defendant must demonstrate that but for counsel's deficient performance, it is reasonably probable that the result of the challenged proceeding would have been different. When a guilty plea is at issue rather than the result of a trial, the defendant must demonstrate that but for counsel's deficient performance, the defendant would not have pled guilty, and would have insisted on going to trial. (Citations omitted.)\\nState v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975; State v. Aills (Mont. 1991), [250 Mont. 533,] 822 P.2d 87, 48 St.Rep. 960.\\nDefendant has failed to meet the Strickland test. First, he has failed to demonstrate that Mr. Ashley's performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Mr. Ashley was prepared to go to trial. He testified he worked on the case from the time he got it until the day of trial, at a \\\"minimum of two to three hours a week\\\". The morning of the trial, defendant asked him about an Alford plea. Mr. Ashley explained an Alford plea to defendant and defendant understood it, as is clear from the interrogation of defendant by the trial judge before the pleas were accepted. Defendant attempts to argue that because he contends he is innocent, he should not have to pay the consequences of a plea of guilty. That argument is effectively rebutted by the previously quoted examination by the court where the maximum penalties were discussed, and where the defendant acknowledged that it was pos sible he could receive sentences totaling forty years in prison and $100,000 in fines.\\nWe conclude that defendant has failed to show in any respect that his counsel's performance was deficient. As a result we need not address the second prong of the test with regard to prejudice. We hold that the defendant did not receive ineffective assistance of counsel with respect to his attorney's advice that he should enter Alford pleas rather than proceeding to trial.\\nIll\\nDid the District Court deny the defendant due process of law in violation of the Montana and United States Constitutions?\\nDefendant contends that the District Court denied him due process because the court should have informed him that to admit to the offenses would probably require him to attend an inpatient's sex offender treatment program at the State Prison, and continued assertion of innocence would prevent him from completing that program. The record does not contain any information on these contentions on the part of the defendant.\\nAfter a presentence hearing and prior to the sentencing of the defendant, the District Court stated:\\nTHE COURT: Is there any legal reason why sentence should not now be pronounced?\\nMR. DONAHOE: No, Your Honor.\\nMR. McGRATH: No, Your Honor.\\nTHE COURT: Mr. Cameron, you have been convicted by your pleas of guilty of two offenses of sexual assault. For sexual assault in count one, it is the judgment of this Court that you be sentenced to Montana State Prison for a term of 20 years.\\nIn count two, for the offense of sexual assault, it is the judgment of this Court that you be sentenced to the Montana State Prison for a term of 20 years. Those terms will run concurrently, and that I'm also going to suspend five of those years on certain conditions.\\nI've also considered the information contained in the presentence report. Mr. McGrath was correct, this has been an emotional case right from the start. Everybody has been caught up in that emotion. As Mr. McGrath wanted a much longer sentence, under the circumstances I think this is appropriate. I believe that certain conditions are needed in this case. Those conditions that I just laid down. If I did not suspend any of your sentence, you wouldn't have any conditions. I could fine you, like Judge Davis did yesterday, but my understanding of the law is that unless a portion of the sentence is suspended, that I don't retain any jurisdiction to lay down conditions. That's up to the parole board.\\nThe record contains no evidence to establish that the District Court misled the defendant in any way with regard to his claim of violation of due process of law.\\nWe hold that the District Court did not deny defendant due process of law in violation of the Montana and United States Constitutions.\\nIV\\nDid a sufficient factual basis exist for the District Court to accept the defendant's pleas of guilty?\\nDefendant maintains that there was an insufficient factual basis for the District Court to accept his guilty pleas.\\nAgain, the defendant's argument lacks merit. In interpreting North Carolina v. Alford this Court has held that \\\"there is no constitutional prohibition against accepting the guilty plea of a defendant who denied his actual guilt\\\". In the Matter of Brown (1980), 185 Mont. 200, 204, 605 P.2d 185, 187.\\nWith regard to the factual basis for the plea, the following is a portion of the statement made by the prosecuting attorney in the District Court prior to sentencing:\\nIf we went to trial, the State is prepared to present both the young victims as witnesses. [M.S.] would testify that she is the daughter of Jim Cameron, that over a period of years, over a period of the past five years, that he subjected her to various types of sexual assault, including beginning with game \\u2014 playing tickle game, such as that advanced to more sophisticated games where she was required to touch his penis and genital area and he would touch her vaginal area and touch her on the breasts. She would also testify that over a period of years, that that kind of sexual activity occurred on a regular basis when she had visitation with him. That included him touching her with his penis and that she would also testify that she observed Mr. Cameron attempting to have intercourse with [E. R] while the three of them were sleeping in the same bed in Mr. Cameron's residence in Lewis and Clark County. [E.P.] would testify to similar events. She is the daughter of a woman that Mr. Cameron had an affair with . She would testify that over a period of years, that she was involved in various forms of sexual assault with Mr. Cameron, including, . tickle games, pornographic films, touching. He'd have her touch his penis, his genitals and vice versa, that he attempted to insert his fingers inside her vagina and occasionally insert his penis inside her vagina.\\nIn addition to the testimony from the girls, we would have testimony from Dr. Elizabeth Gunderson who examined \\u2014 performed physical examinations on both of these girls, would testify that, in fact, [E.R] was so frightened that she refused to have Dr. Gunderson physically examine her, and that she had to undergo \\u2014 be placed under anesthesia out at St. Peter's hospital before Dr. Gunderson could examine her.\\nThat in Dr. Gunderson's many years of experience, she had never had a victim that refused an examination and had to be placed under anesthesia. That in the course of the physical examination of [E.P.], Dr. Gunderson concluded that, in fact, there was a considerable manipulation and healing, and that it is her opinion that [E.P.] has been sexually molested.\\nShe would also testify that she examined [M.S.], that she took a history from (M.S.], and she also took a history from [E.P.]. Both girls indicated that they had been touched and penetrated by Mr. Cameron.\\nWe would also have testimony from Debbie Huigen who is a certified licensed counselor who's been seeing [E.P.] and [her] mother, and Ms. Huigen would testify to a number of things regarding the dynamics of victims of sexual assault and would conclude her testimony by saying that in her opinion, [E.P.] is, indeed, the victim of sexual assault and has been sexually abused.\\nTom Walstad, also a certified licensed counselor, would testify that he has, over the period of months, been counselling with [M.S.], that she has exhibited considerable symptoms of a victim of sexual assault, including a seizure disorder that Dr. Gunderson was prepared to testify about as well; that the seizures, in fact, stopped after the disclosure in this case and [M.S.] was assured that she would no longer have to visit with Mr. Cameron; and that in Mr. Walstad's opinion, [M.S.] is, indeed, a victim of sexual abuse.\\nWe hold that the State's offer of proof established an adequate factual basis for the District Court to accept defendant's pleas.\\nV\\nDid the District Court commit reversible error by failing to arraign the defendant on the charges set forth in the amended information?\\nDefendant urges that the District Court violated \\u00a7 46-ll-403(l)(d), MCA, when it did not arraign him on the amended information. The State maintains that the District Court substantially complied with the arraignment procedures set forth in \\u00a7 46-12-201 and 46-12-202, MCA. The State also urges that defendant waived any such error when he pled guilty to the charged offenses without objecting to said irregularities in the arraignment.\\nThe only difference between the original and the amended information was the addition of the requisite mental states in the amended information. The charges were the same. Section 46-11-205(3), MCA, provides:\\nThe court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. (Emphasis added.)\\nHere, the substantial rights of the defendant were not prejudiced when the District Court accepted the amended information but did not arraign him on it. In addition, as previously quoted, the court pointed out to the defendant that he was entitled to have the amended information read in its entirety and asked if he wished to have it read, to which the defendant responded \\\"no.\\\" When an amended information makes substantive changes in the charges, he should be arraigned. Here the amendment was not substantial and the charges remained the same.\\nWe hold that the District Court did not commit reversible error by failing to arraign the defendant on the charges set forth in the amended information.\\nAffirmed.\\nCHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.\"}"

mont/287392.json

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+"{\"id\": \"287392\", \"name\": \"STATE OF MONTANA, Plaintiff, vs. CARLTON H. SCRANTON, Defendant\", \"name_abbreviation\": \"State v. Scranton\", \"decision_date\": \"2002-11-14\", \"docket_number\": \"No. ADC-2001-242\", \"first_page\": \"76\", \"last_page\": \"77\", \"citations\": \"313 Mont. 76\", \"volume\": \"313\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:33:17.630659+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF MONTANA, Plaintiff, vs. CARLTON H. SCRANTON, Defendant.\", \"head_matter\": \"From: The District Court of the 1st Judicial District. County of Lewis and Clark.\\nSTATE OF MONTANA, Plaintiff, vs. CARLTON H. SCRANTON, Defendant.\\nNo. ADC-2001-242 Decision\", \"word_count\": \"275\", \"char_count\": \"1699\", \"text\": \"On July 3, 2002, the defendant was sentenced to fifteen (15) years in the Montana State Prison, with five (5) years suspended, for Assault with a Weapon, a felony.\\nOn November 14, 2002, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.\\nThe defendant was present and was represented by Randi Hood. The state was not represented.\\nBefore hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.\\nRule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that \\\"the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless itis deemed clearly inadequate or excessive.\\\" (\\u00a746-18-904(3), MCA).\\nThe Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.\\nTherefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.\\nDone in open Court this 14th day of November, 2002.\\nDATED this 11th day of December, 2002.\\nChairman, Hon. David Cybulski; Member, Hon. Katherine R. Curtis and Member, Hon. Marc Buyske.\"}"

mont/2902019.json

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+"{\"id\": \"2902019\", \"name\": \"MARILYN HOLLISTER, Plaintiff and Appellant, v. JOHN FORSYTHE, a public officer, and ROSEBUD COUNTY, a Montana Political Subdivision, Defendants and Respondents\", \"name_abbreviation\": \"Hollister v. Forsythe\", \"decision_date\": \"1996-06-17\", \"docket_number\": \"No. 95-537\", \"first_page\": \"23\", \"last_page\": \"32\", \"citations\": \"277 Mont. 23\", \"volume\": \"277\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T23:07:21.149042+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES ERDMANN, GRAY and NELSON concur.\", \"parties\": \"MARILYN HOLLISTER, Plaintiff and Appellant, v. JOHN FORSYTHE, a public officer, and ROSEBUD COUNTY, a Montana Political Subdivision, Defendants and Respondents.\", \"head_matter\": \"MARILYN HOLLISTER, Plaintiff and Appellant, v. JOHN FORSYTHE, a public officer, and ROSEBUD COUNTY, a Montana Political Subdivision, Defendants and Respondents.\\nNo. 95-537.\\nSubmitted on Briefs March 14, 1996.\\nRehearing Denied July 11, 1996.\\nDecided June 17, 1996.\\n53 St.Rep. 524.\\n277 Mont. 23.\\n918 P.2d 665.\\nFor Appellant: K.D. Peterson; Peterson & Schofield, Billings.\\nFor Respondents: K. Kent Koolen, Nancy Bennett; Moulton, Bellingham, Longo & Mather, Billings; Steven J. Lehman; Crowley, Haughey, Hanson, Toole & Dietrich, Billings.\", \"word_count\": \"3109\", \"char_count\": \"19012\", \"text\": \"JUSTICE LEAPHART\\ndelivered the Opinion of the Court.\\nMarilyn Hollister (Hollister) appeals from the Rosebud County, Sixteenth Judicial District Court's dismissal of her 42 U.S.C. \\u00a7 1983 claim against Rosebud County and John Forsythe (collectively \\\"Forsythe\\\"). We affirm.\\nThe sole issue before us is whether the District Court erred in dismissing Hollister's 42 U.S.C. \\u00a7 1983 claim based on res judicata.\\nBACKGROUND\\nThe background facts of this case are presented in Hollister v. Forsythe (1995), 270 Mont. 91, 92-93, 889 P.2d 1205, 1206. Hollister initially filed a complaint for deprivation of rights in the United States District Court for Montana. The United States District Court granted Forsythe's motion for partial summary judgment and dismissed Hollister's federal claims with prejudice. She appealed the United States District Court's judgment. The Ninth Circuit Court of Appeals affirmed in Hollister v. Forsythe (9th Cir. 1994), 22 F.3d 950. She then filed a complaint for wrongful discharge and other torts in Montana state district court. Pursuant to Forsythe's motion to dismiss, the state district court dismissed her suit based on the statute of limitations. We reversed in Hollister, 889 P.2d 1205.\\nIn Hollister, we held that Hollister's claims in state court were not barred by the statute of limitations because:\\nunder Montana's renewal statute, \\u00a7 27-2-407, MCA, use of the word \\\"termination\\\" refers to the ultimate termination which occurs after final appellate action. Accordingly, the one-year period begins to run from the date that the time for appeal expires or, in the event of an appeal, from the date of the remittitur or judgment of the appellate court.\\nHollister, 889 P.2d at 1208. Because her state court complaint was filed within one year of the Ninth Circuit's decision on appeal, it was within the statutory period.\\nOn remand, Montana's Sixteenth Judicial District Court considered the remaining issues in Forsythe's motion to dismiss. Under Rule 12(b)(6), M.R.Civ.R, Forsythe moved for dismissal for failure to state a claim upon which relief can be granted. Forsythe's motion to dismiss raised the following issues: Whether Hollister's claims outside the Montana Wrongful Discharge from Employment Act (WDFEA), \\u00a7 39-2-901 through -915, MCA, were preempted by WDFEA and, whether her 42 U.S.C. \\u00a7 1983 claim was barred by res judicata. The court dismissed all claims outside of WDFEA and ordered the case to proceed only on Hollister's claim of wrongful discharge under WDFEA. In the present appeal, we are called upon to review the Sixteenth Judicial District Court's holding that Hollister's claim under 42 U.S.C. \\u00a7 1983 was barred by the Ninth Circuit's holding that Hollister had no property interest in her job thus there could be no constitutional violation and no claim under 42 U.S.C. \\u00a7 1983. Hollister, 22 F.3d 950.\\nIn the mean time, in federal court, Hollister filed a Rule 60, Fed.R.Civ.P., Motion for Relief from Judgment based on our decision in Boreen v. Christensen (1994), 267 Mont. 405, 884 P.2d 761. In Boreen, we disagreed with the Ninth Circuit's reasoning regarding Hollister's potential property right in her employment with Rosebud County. Boreen, 884 P.2d at 769; see Hollister, 22 F.3d at 953. The federal district court denied her motion and the matter is currently pending before the Ninth Circuit Court of Appeals.\\nSTANDARD OF REVIEW\\nA complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317.\\nAmotion to dismiss under Rule 12(b)(6), M.R.Civ.R, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.\\nLockwood, 900 P.2d at 317 (quoting Boreen, 884 P.2d at 762). The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Lockwood, 900 P.2d at 317.\\nDISCUSSION\\nDid the District Court err in dismissing Hollister's 42 U.S.C.\\n\\u00a7 1983 claim based on res judicata?\\nThe doctrine of res judicata prevents a party from re-litigating a matter that the party has already had an opportunity to litigate. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161; Greenwood v. Steve Nelson Trucking, Inc. (1995), 270 Mont. 216, 219, 890 P.2d 765, 767. Res judicata is based on the public policy that there must be some end to litigation. Loney, 905 P.2d at 161; Wellman v. Wellman (1983), 205 Mont. 504, 508, 668 P.2d 1060, 1062. The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. State ex rel. Harlem Irrigation Dist. v. Montana Seventeenth Judicial Dist. Court (1995), 271 Mont. 129, 132, 894 P.2d 943, 944-45; Meagher County Newlan Creek Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850, 852.\\nA claim is res judicata when four criteria are met: the parties or their privies are the same; the subject matter of the claim is the same; the issues are the same and relate to the same subject matter; and the capacities of the persons are the same in reference to the subject matter and the issues. Loney, 905 P.2d at 161; In re Marriage of Blair (1995), 271 Mont. 196, 203, 894 P.2d 958, 963. The most important of the four criteria for res judicata is the identity of issues. Marriage of Blair, 894 P.2d at 963; In re Marriage of Harris (1980), 189 Mont. 509, 513,6 16 P.2d 1099, 1101. Additionally, the doctrine of res judicata bars not only issues which were previously litigated, but also issues which could have been litigated in the prior proceeding. Loney, 905 P.2d at 161; see Harlem, 894 P.2d at 946.\\nHollister concedes that the first and fourth criteria of res judicata are met. However, she argues that the second and third criteria are not met. She alleges that the issue is not the same because the federal courts only addressed the threshold question of whether Hollister had a property interest in her county employment. She alleges that in light of our decision in Boreen, 884 P.2d 761, the federal courts erred in concluding that, under Montana law, Hollister did not have a property interest in her employment. Because the court did not proceed beyond that threshold question, Hollister also argues that her claims have not been judged on their merits.\\nForsythe counters that the issue in Hollister's state court action is identical to the issue previously raised and decided by the federal court. We agree. In federal court, Hollister alleged that Forsythe's termination of her employment violated her constitutional rights to substantive and procedural due process. In state court, Hollister realleges the same claim and seeks the same remedy. Forsythe argues that Boreen does not alter the fundamental issue in Hollister's state court \\u00a7 1983 action, that is, whether there is a property interest in employment. Boreen, 884 P.2d at 762-63. Moreover, even if the federal court erroneously determined that there is no property interest in employment under Montana law, res judicata still applies. Mills v. Lincoln County (1993), 262 Mont. 283, 285, 864 P.2d 1265, 1267; Brennan v. Jones (1936), 101 Mont. 550, 565, 55 P.2d 697, 701.\\nHollister argues that the subject matter presented to the courts differs because the instant case involves her civil rights, constitutional rights and tort claims, not whether she has a property interest in her employment. However, the subject matter in both actions is the termination of Hollister's employment as a secretary for Rosebud County. In Harlem, we held that the same subject matter that gave rise to the initial complaint was also the basis for the subsequent causes of action. Harlem, 894 P.2d at 945. The same is true here, the underlying subject matter in both federal and state forums is Hollister's termination from employment.\\nBeyond the criteria of res judicata, Hollister argues that she has a right to have the merits of her case heard and that in granting summary judgment to Forsythe, the United States District Court did not decide the merits of her civil rights, constitutional rights and tort claims. In federal court, Hollister alleged federal question jurisdiction pursuant to 28 U.S.C. \\u00a7 1331 and 42 U.S.C. \\u00a7 1983. In determining the threshold issue of federal jurisdiction, the federal court first examined Hollister's \\u00a7 1983 claim. The federal court determined that, to bring a \\u00a7 1983 claim based on a violation of procedural due process, Hollister had to first establish that a property interest protected by the Fourteenth Amendment was affected by Forsythe's termination decision. The federal court held that Hollister had not established a property interest in her employment, thus the court granted summary judgment to Forsythe on the issue of Hollister's \\u00a7 1983 claim. Having found no federal question jurisdiction, the federal court dismissed Hollister's federal claims with prejudice and dismissed her pendant state claims without prejudice stating \\\"the parties may simply resubmit the remaining issues to the appropriate state court.\\\" Hollister contends that because the federal court found, at the threshold, that she could not establish a property interest in her employment, her claims have not been decided on their merits.\\nIn Smith v. Schweigert (1990), 241 Mont. 54, 59, 785 P.2d 195, 198, we held that summary judgment is a decision on the merits because it is a conclusive determination of a legal issue presented by the facts of a case. See Harlem, 894 P.2d at 945. In Mills, we reaffirmed this proposition that summary judgment is, indeed, a final judgment on the merits and that the res judicata bar is, therefore, applicable. 864 P.2d at 1267.\\nInMiiis, the United States District Court granted Lincoln County's motion for summary judgment based on immunity under \\u00a7 2-9-111, MCA. Soon thereafter, the legislature significantly amended \\u00a7 2-9-111, MCA, such that the county's immunity defense would be negated. Mills did not file a motion for reconsideration in federal court, instead she filed a complaint against the county in state district court. The case came to trial and the jury found that the county was not negligent. Sua sponte, the district court ordered a new trial. On appeal, we held that Mills' state court action was barred by res judicata.\\nThe point to be noted is that, right or wrong, the federal court entered summary judgment against Mills; that judgment became final by Mills' failure to pursue the available remedy in federal court; and she is now bound by that judgment.\\nMills, 864 P.2d at 1267 (emphasis added).\\nThroughout her appeal, Hollister argues that the federal court's holding that she has no property interest in employment is wrong. She bases her contention on our decision in Boreen, 884 P.2d 761. In Boreen, we discussed Hollister, 22 F.3d 950, in which the Ninth Circuit concluded that Montana's Wrongful Discharge from Employment Act does not create, in at-will employees, a property interest in their jobs. Hollister, 22 F.3d at 953. We stated \\\"we simply do not agree with the court's application of our prior case law to the facts in Hollister.\\\" Boreen, 884 P.2d at 769. Despite our disagreement with the Ninth Circuit's conclusion regarding Hollister's potential property interest in her employment, we are in no position to change the Ninth Circuit's decision. As previously stated in Mills, Hollister is bound by the judgment, right or wrong, of the federal court in which she brought her claim. Mills, 864 P.2d at 1267. If parties are allowed to commence new lawsuits on litigated claims and issues every time a subsequent change in the law might, arguably, alter the result of the first litigation, it is safe to say that there will be few \\\"final judgments\\\" ever entered. Mills, 864 P.2d at 1267-68.\\nHollister, in federal district court, litigated the question of whether she had a property interest sufficient to sustain a \\u00a7 1983 claim. The federal district court ruled that she did not, and that decision was affirmed by the Ninth Circuit. Hollister, 22 F.3d 950. Although, in Boreen, we subsequently disagreed with the conclusions reached by the federal courts, the doctrine of res judicata bars us from considering this litigated claim. Mills, 864 P.2d at 1267. As is her right, Hollister has sought Rule 60, Fed.R.Civ.R, relief in federal court in light of our decision in Boreen. That matter is pending appeal to the Ninth Circuit. The outcome of that appeal, however, will not affect the application of the res judicata principles which we now find controlling of the state court claim under \\u00a7 1983.\\nIn the instant case, as in Mills, we hold that the federal court summary judgment was a final judgment on the merits and that res judicata bars Hollister's state court action under \\u00a7 1983.\\nAffirmed.\\nJUSTICES ERDMANN, GRAY and NELSON concur.\"}"

mont/36306.json

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+"{\"id\": \"36306\", \"name\": \"TERRITORY OF MONTANA, Appellant, v. J. D. JINKS, Respondent; TERRITORY OF MONTANA, Appellant, v. BERNHEIM, Respondent\", \"name_abbreviation\": \"Territory of Montana v. Jinks\", \"decision_date\": \"1888-07\", \"docket_number\": \"\", \"first_page\": \"135\", \"last_page\": \"139\", \"citations\": \"8 Mont. 135\", \"volume\": \"8\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:59:27.022257+00:00\", \"provenance\": \"CAP\", \"judges\": \"McConnell, C. J., and Bach, J., concur.\", \"parties\": \"TERRITORY OF MONTANA, Appellant, v. J. D. JINKS, Respondent. TERRITORY OF MONTANA, Appellant, v. BERNHEIM, Respondent.\", \"head_matter\": \"TERRITORY OF MONTANA, Appellant, v. J. D. JINKS, Respondent. TERRITORY OF MONTANA, Appellant, v. BERNHEIM, Respondent.\\nCriminal Law\\u2014 Offering game for sede \\u2014 Appeal from Justice to District Court\\u2014 Exceptions before justice in criminal su.it \\u2014 Jurisdiction__The defendant was tried \\\"before a magistrate, upon an agreed statement of facts, on a charge of unlawfully offering game for sale. Said statement was as follows: The accused offered prairie chickens for sale in the Territory of Montana, which had been killed and bought by him in the State of Kansas. The prosecution was under sectionll47, division 5, Compiled Statutes. The magistrate discharged the defendant, stating in the judgment that he was guilty of no offense. Ho bill of exceptions was taken to the ruling of the magistrate. The county attorney appealed the case to the District Court, where it was tried without a jury, upon the same statement of facts. A judgment rendered on the merits acquitted the defendant. The county attorney after the decision of the District Court prepared and filed a bill of exceptions to the same, for the reason that \\u201cthe public offense as charged in the complaint is fully supported by the facts appearing in the statement.\\u201d Held, that under sections 526 and 527, division 3, Compiled Statutes, unless a bill of exceptions has been taken to some ruling of a magistrate on a question of law, as prescribed by section 340, division 3, Compiled Statutes, the Territory has no right to appeal a case to the District Court; and that no bill of exceptions having been taken in this case upon the trial before the justice, the District Court had no jurisdiction to hear the appeal. Held, also, that the record in this case shows that both the judgment of the justice of the peace and that of the District Court were upon the merits.\\nAppeal from the Second Judicial District, Silver Bow County.\\nSTATEMENT.\\nTwo appeals of the Territory from judgments of the District Court affirming judgments of a justice of the peace, discharging defendants. The defendant Jinks had been arrested and tried for offering for sale, and selling within the Territory, prairie chickens, which had been killed outside of the Territory; and the defendant Bernheim was tried at the same time for a similar alleged offense.\\nThe prosecutions were instituted under section 1147, division 5, Compiled Statutes, which is as follows: \\u201c That any person or persons who shall wilfully shoot or kill, or cause to be killed, any grouse, prairie chicken, pheasant, fool hen, sage hen, partridge, or quail, between the fifteenth day of November and the fifteenth day of August of the next ensuing year, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not less than twenty-five dollars, nor more than fifty dollars; and all persons are hereby prohibited at all times from killing any of the birds in this section for speculative purposes, or for market, or for sale, and any person or persons who shall hereafter kill for speculative purposes, or offer for sale, any of the kinds named in this section, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than twenty-five dollars, nor more than fifty dollars, for each offense committed.\\nW E. Gallen, Attorney-General, for Appellant.\\nThese two cases may be considered together. Do the facts bring the defendants within the provisions of section 1147 of the fifth division of the Compiled Statutes? There can be no question that it would be entirely competent for the legislature to forbid the sale of these birds in the Territory, and by the unambiguous language of the section cited, it seems to have done so. Giving the language employed in the section its full scope and meaning, it cannot be limited in its application to birds of the kind named, killed within the Territory. The object of the legislation is doubtless the protection of game birds, fish, and fur-bearing animals within the Territory; and this may be in part accomplished by forbidding the sale, in the Territory of Montana, of game birds wherever killed.\\nJ. J. McMatton, for Respondents.\\nThe purpose of the law, as expressed by the title, and the law itself, is to protect the game of the Territory; and it does not appear by the language of the statute that the sale of game brought from outside of the Territory is prohibited; and taking into consideration the fact that the legislature could not pass a law which would have any effect beyond the territorial limits, it must be concluded that the sale of game which is prohibited by the law is game of the Territory. To hold that the sale by a person of game within the Territory was sufficient to convict him of a violation of the game law, would be to change the rules of practice and evidence, and compel him to show his innocence by proof that the birds were killed outside of the Territory. The Territory must prove that they were birds of this Territory, and killed within the same, as well as offered for sale herein. The law under which these respondents were charged cannot, as applied to cases like these, be held valid as a police regulation; for such extend only to sanitary laws for the protection of life, liberty, health, or property, and reasonable quarantine and inspection laws, which do not interfere with inter-state commerce. (See Salzenstein v. Marvis, 91 111. 391.) Finally, we submit that the law can have no application to the facts of these cases, and if it was the intent of the legislature to apply it to cases of this character, that in so tar as such cases are concerned it is clearly unconstitutional, being in conflict with that portion of the eighth section, first article of the Constitution of the United States, which provides that Congress shall have power to \\u201cregulate commerce with foreign nations and among the several States, and with the Indian tribes,\\u201d which confers exclusive power upon Congress. A consideration of the authorities cited below will, we think, show that these cases are brought by their facts clearly within said provision; and therefore the Territory cannot legislate to affect them. (See Railroad Company v. Musen, 95 U. S. 465; Robins v. Shelby County Taxing District, 120 U. S. 489, and authorities cited.)\\nW.E. Cullen, Attorney-General, in reply to Respondents\\u2019 brief.\\nWhile it is true that the transportation of the bodies of game birds may not be prohibited by the legislature of a State for the reason that such transportation is a matter of inter-state commerce, which Congress alone may regulate (as decided in Railroad v. Husen, 95 U. S. 465), it seems well settled on principle and authority, that when they have once been brought into the Territory from another State or country, their sale may as properly be prohibited as if they were killed within the Territory. (Magnet' v. People, 97 111. 320; Phelps v. Raoey, 60 N. Y. 10; 19 Am. Rep. 140; State v. Randolph, 1 Mo. App. 15; State v. Judy, 7 Mo. App. 524.) There is no question in these cases save and except, is the exposure for sale of the bodies of these game birds within the statute? The language of the statute is explicit; it is a rightful subject of legislation, and if the court shall be of opinion that it was the intention to include imported birds in its prohibition, then the case falls clearly within the rule established in Phelps v. Raoey, supra.\", \"word_count\": \"1918\", \"char_count\": \"11200\", \"text\": \"Liddell, J.\\nThe defendant was arrested and tried before a magistrate upon an affidavit charging him with unlawfully offering grouse for sale in the city of Butte and county aforesaid. The prosecution and defense agreed that the accused offered prairie chickens for sale, but that they were killed in the State of Kansas, where they were bought by the defendant. \\\"Upon this agreed statement of the material facts, the case was tried, and the magistrate incontinently discharged the accused, because, as stated in his judgment, the defendant was not guilty of the offense charged, or of any other; whereupon the county attorney, without even having reserved any bill of exceptions to a ruling of the magistrate, in accordance with the requirements of section 527 of the Criminal Practice Act, appealed the case to the District Court, where it was again tried, without a jury, upon the same agreed statement of facts, and a judgment rendered on the merits discharging the defendant. After the acquittal of the accused, the county attorney prepared and filed a bill of exceptions to the judgment of the District Court, for the reason that \\\"the public offense, as charged in the complaint, is fully supported by the facts appearing in the statement.\\\" We have carefully examined the judgments of both the magistrate and District Court, and conclude that they are both judgments upon the merits, and in which no question of law, pure and simple, was presented for their consideration. Unless a bill of exceptions had been taken to some ruling of the magistrate on a question of law, the Territory had no right to appeal the case to the District Court. Section 527 of the Criminal Practice Act in terms says: \\\"When the district attorney, or any attorney acting as prosecutor, has taken exceptions to the ruling of the court on any question of law, the Territory may appeal the same to the District Court.\\\" And in section 526 we find the manner of taking such exceptions to be the same as in trials in the District Court. Manifestly these sections limit the right of appeal on the part of the Territory to questions of law reserved by bill of exceptions to rulings of the court, as in the practice in the District Court. Section 340 of the Criminal Practice Act points out the manner of excepting, and the character of the ruling or decision of the court which may be excepted to and appealed from. . It particularly says that the prosecution \\\" may except to any decision of the court upon a question of law, in admitting or rejecting witnesses, or testimony, or in deciding any question of law not a matter of discretion, or in giving or refusing any instructions to the jury when the case is finally submitted to them.\\\" We know of no law which gives the Territory the right to appeal a case from the magistrate's to the District Court, unless a question of law has been reserved by bill of exceptions in the manner prescribed by law. ISTor have we been referred to any authority whatever which allows the Territory to take a bill of exceptions to the judgment of the District Court on the merits in favor of the defendant. Uo bill of exceptions having been taken by the Territory to any decision or ruling of the magistrate on a question of law, as prescribed by section 340 of the Criminal Practice Act, no right of appeal existed in favor of the Territory, and the District Court was without any jurisdiction to review the judgment of the magistrate's court. Inasmuch as the District Court is without jurisdiction, we are without authority to entertain the appeal, which is hereby dismissed, at cost of appellant. This decision disposes of the case of Territory v. Bernheim, on appeal from Silver Bow County, now pending in this court.\\nJudgment affirmed.\\nMcConnell, C. J., and Bach, J., concur.\"}"

mont/3662396.json

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+"{\"id\": \"3662396\", \"name\": \"IN THE MATTER OF THE ESTATE OF MARY JANICE ANDERSON-FEELEY, Deceased\", \"name_abbreviation\": \"In re the Estate of Anderson-Feeley\", \"decision_date\": \"2007-12-19\", \"docket_number\": \"No. DA 06-0442\", \"first_page\": \"352\", \"last_page\": \"356\", \"citations\": \"340 Mont. 352\", \"volume\": \"340\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T21:34:53.022594+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE GRAY, JUSTICES LEAPHART, COTTER, NELSON, WARNER and MORRIS concur.\", \"parties\": \"IN THE MATTER OF THE ESTATE OF MARY JANICE ANDERSON-FEELEY, Deceased.\", \"head_matter\": \"IN THE MATTER OF THE ESTATE OF MARY JANICE ANDERSON-FEELEY, Deceased.\\nNo. DA 06-0442.\\nSubmitted on Briefs February 22, 2007.\\nDecided December 19, 2007.\\n2007 MT 354.\\n340 Mont. 352.\\n174 P.3d 512.\\nFor Appellant: Mark D. Parker, Parker, Heitz & Cosgrove, PLLC, Billings; Richard W. Heard, Heard & Howard, PLLP, Columbus.\\nFor Appellee: David L. Charles, Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Billings.\", \"word_count\": \"1621\", \"char_count\": \"10026\", \"text\": \"JUSTICE RICE\\ndelivered the Opinion of the Court.\\n\\u00b61 William Feeley (Feeley) appeals from the order of the Twenty-Second Judicial District Court, Carbon County, removing him as personal representative of the estate of Mary Janice Anderson-Feeley (Jan) and appointing James Hadachek (Hadachek) as personal representative.\\n\\u00b62 Feeley raises the following issue on appeal: Did the District Court abuse its discretion in concluding that good cause existed for the removal of Feeley as personal representative of Jan's estate? We affirm.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b63 Jan married Feeley in early 1998. Jan was sixty-nine years old when she married Feeley, who was in his early forties. Jan prepared a will in 1997, leaving three quarters of her estate to her three children while leaving the final one quarter to Feeley. She also designated Feeley as her attorney-in-fact. At the time Jan executed her will, she had assets in excess of four million dollars. Jan's will also provided that Feeley would serve as the personal representative of the estate and that if Feeley was not able to serve, Hadachek (Jan's son) would act as personal representative. At the time of Jan's death, on February 18, 2003, the size of her estate had dissipated substantially. Feeley was appointed to act as personal representative for Jan's estate on March 14,2003. Hadachek later learned that \\\"essentially all of the assets and money [Jan] had had disappeared before she passed away.\\\" Specifically, the value of Jan's estate at the time of her death was less than $30,000.\\n\\u00b64 Hadachek and his siblings filed suit against Feeley, and others, in the Thirteenth Judicial District Court, Yellowstone County, asserting claims of undue influence, breach of fiduciary duty, breach of express trust, constructive trust/unjust enrichment, and conversion. Feeley moved to dismiss the claims, arguing that only Jan's estate could bring such claims. In response, Hadachek moved to remove Feeley as the personal representative of Jan's estate. The District Court, after hearing oral argument and reviewing the parties' briefs, granted Hadachek's motion, removed Feeley as personal representative, and appointed Hadachek as the personal representative of Jan's estate. Specifically, the court pointed to the following evidence in respect to Hadachek's claims against Feeley: (1) Jan expressed a clear desire to have each of her children receive one quarter of her estate; (2) at the time her will was prepared, Jan's estate was estimated to be in excess of four million dollars; (3) Feeley had a power of attorney to act for Jan, which created a fiduciary duty; (4) Feeley and Jan were married shortly before Jan's sixty-ninth birthday; (5) Jan's medical records suggest that Jan may have suffered from cognitive impairment as well as physical infirmities during the time her estate was depleted; and (6) Feeley obtained significant transfers of assets from Jan, resulting in her estate containing less than $30,000 at the time of her death.\\n\\u00b65 Feeley appeals. Additional facts will be discussed herein as necessary.\\nSTANDARD OF REVIEW\\n\\u00b66 We review a district court's decision regarding the removal of an estate's personal representative to determine whether the court abused its discretion. In re Estate of Kuralt, 2001 MT 153, \\u00b6 11, 306 Mont. 73, \\u00b6 11, 30 P.3d 345, \\u00b6 11; In re Estate of Peterson, 265 Mont. 104, 108, 874 P.2d 1230, 1232 (1994); In re Estate of Obstarczyk, 141 Mont. 346, 352-53, 377 P.2d 531, 534-35 (1963).\\nDISCUSSION\\n\\u00b67 Did the District Court abuse its discretion in concluding that good cause existed for the removal of Feeley as personal representative of Jan's estate?\\n\\u00b68 In his petition for removal of Feeley as personal representative of Jan's estate, Hadachek argued that Feeley has a conflict of interest in that Feeley will not pursue claims against himself, contrary to the best interests of the estate. After a hearing on May 31, 2006, to determine whether Feeley should be removed as personal representative of Jan's estate, the District Court determined that Feeley had a conflict of interest which would not serve the best interests of the estate. The court expressed no views on Hadachek's claims against Feeley, focusing solely on the issue of whether Feeley should be removed as personal representative of Jan's estate. Based on the evidence presented, which revealed Feeley's conflict of interest, the District Court removed Feeley as personal representative of Jan's estate.\\n\\u00b69 A personal representative may be removed for cause in certain situations under \\u00a7 72-3-526, MCA, which provides in pertinent part:\\n72-3-526. Termination of appointment-removal for cause. (1) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative and to other persons as the court may order....\\n(2) Cause for removal exists:\\n(a) when removal would be in the best interests of the estate', or\\n(b) if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.\\n(Emphasis added.) Removal of a personal representative for cause pursuant to \\u00a7 72-3-526, MCA, is within the discretion of the district court, and we will not overturn a removal unless there is clear abuse of discretion. Peterson, 265 Mont. at 108, 874 P.2d at 1232 (citing In re the Estate of Nelson, 243 Mont. 276, 278, 794 P.2d 677, 678 (1990)).\\n\\u00b610 In Peterson, we held that the district court did not abuse its discretion in the removal of the estate's personal representative and explained that \\\"[a] conflict of interest is sufficient for removal of the personal representative for cause under \\u00a7 72-3-526, MCA.\\\" Peterson, 265 Mont, at 109, 874 P.2d at 1233. There, the decedent, Justin Peterson, was rendered a quadriplegic as a result of a swimming accident. Justin retained Ernest F. Boschert and Michael J. Whalen to represent him in his personal injury action against the owners of the property on which he was swimming. Justin signed a contingency agreement providing Mr. Boschert and Mr. Whalen with 40 percent of any recovery if the case was set for trial or was tried. Peterson, 265 Mont, at 106, 874 P.2d at 1231. Mr. Boschert and Mr. Whalen filed a two-page complaint against the owners of the property, requested and acquired a trial date from the court, and then settled the case. As a result, Mr. Boschert and Mr. Whalen were entitled to 40 percent of Justin's $3,125,000 recovery pursuant to the contingency agreement. Peterson, 265 Mont, at 106-07, 874 P.2d at 1231.\\n\\u00b611 Following Justin's death, Mr. Whalen was appointed as Justin's personal representative pursuant to a will he had drafted for Justin shortly after the settlement. Justin's brother, David Peterson, thereafter filed a petition to have Mr. Whalen removed as personal representative, alleging that the attorney fees Mr. Whalen and his co-counsel received were excessive in relation to the amount of work done in connection with Justin's personal injury claim. Peterson, 265 Mont. at 107, 874 P.2d at 1232. We affirmed the District Court's determination that Mr. Whalen should be removed for cause since he could not be expected to pursue a claim against himself on behalf of Justin's estate. We held that the potential claim against Mr. Whalen was sufficient to create a conflict of interest, and such conflict of interest was sufficient for removal of Mr. Whalen as personal representative. Peterson, 265 Mont. at 109, 874 P.2d at 1233.\\n\\u00b612 Here, the District Court pointed to evidence that Feeley may have transferred significant assets from Jan for his personal benefit, as Jan's estate had been devalued from over four million dollars to less than thirty thousand dollars. Moreover, the court took note of the power of attorney between Jan and Feeley, which created a fiduciary duty on the part of Feeley towards Jan. Finally, the District Court pointed out the differences between Jan's and Feeleys respective ages at the time of their marriage and that Jan's cognitive and physical condition had deteriorated at the time she was transferring assets into Feeley's name.\\n\\u00b613 Based on our review of the record and the findings of the District Court, it is clear that sufficient evidence of a conflict of interest existed to justify removal of Feeley as personal representative of Jan's estate, pursuant to \\u00a7 72-3-526, MCA. The existence of a potential claim against Feeley is sufficient to create a conflict of interest, and such conflict of interest is sufficient for removal of Feeley as personal representative of Jan's estate. Peterson, 265 Mont. at 109, 874 P.2d at 1233. Like the District Court, we are making no determination as to the merit of Hadachek's underlying claims against Feeley. Rather, we simply agree with the District Court that Hadachek has presented sufficient evidence that a claim or claims against Feeley may exist. Applying the standard set forth in Peterson, we conclude the District Court did not abuse its discretion in removing Feeley as personal representative of Jan's estate.\\n\\u00b614 The judgment of the District Court is affirmed.\\nCHIEF JUSTICE GRAY, JUSTICES LEAPHART, COTTER, NELSON, WARNER and MORRIS concur.\"}"

mont/3737410.json

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+"{\"id\": \"3737410\", \"name\": \"STATE OF MONTANA, Plaintiff, vs. DARIN GUCKEEN, Defendant\", \"name_abbreviation\": \"State v. Guckeen\", \"decision_date\": \"2009-03-23\", \"docket_number\": \"CAUSE NO. CDC-07-106\", \"first_page\": \"8\", \"last_page\": \"8\", \"citations\": \"354 Mont. 8\", \"volume\": \"354\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:35:05.320023+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hon. Richard Simonton, District Court Judge\", \"parties\": \"STATE OF MONTANA, Plaintiff, vs. DARIN GUCKEEN, Defendant,\", \"head_matter\": \"From: The District Court of the 8th Judicial District. County of Cascade.\\nSTATE OF MONTANA, Plaintiff, vs. DARIN GUCKEEN, Defendant,\\nCAUSE NO. CDC-07-106 AMENDED JUDGMENT AND COMMITMENT\", \"word_count\": \"213\", \"char_count\": \"1353\", \"text\": \"On November 25, 2008, the defendant was sentenced to five (5) years in the Montana State Prison for violation of the conditions of a suspended sentence for the offense of Assault with a Weapon, a felony. The Court recommended that the Defendant phased into Connections Corrections prior to release.\\nOn February 12,2009, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.\\nThe defendant was present and was represented by Eric Olson. The state was not represented.\\nThe Defendant having been duly informed ofthe amendedjudgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon,\\nIT IS ORDERED, ADJUDGED AND DECREED that the term of the sentence shall be affirmed. However, the Sentence Review Division recommends the sentence be modified so that the defendant be committed to the Department of Corrections for a period of five (5) years to allow the Department of Corrections to consider medical and safety issues in any type of placement.\\nDATED this 23rd day of March, 2009.\\nHon. Richard Simonton, District Court Judge\"}"

mont/3742507.json

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+"{\"id\": \"3742507\", \"name\": \"STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL ANDREWS, JR., Defendant and Appellant\", \"name_abbreviation\": \"State v. Andrews\", \"decision_date\": \"2010-07-14\", \"docket_number\": \"No. DA 09-0209\", \"first_page\": \"52\", \"last_page\": \"60\", \"citations\": \"357 Mont. 52\", \"volume\": \"357\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T18:13:20.682142+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES MORRIS, RICE and DISTRICT JUDGE SEELEY, sitting for RETIRED JUSTICE WARNER concur.\", \"parties\": \"STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL ANDREWS, JR., Defendant and Appellant.\", \"head_matter\": \"STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL ANDREWS, JR., Defendant and Appellant.\\nNo. DA 09-0209.\\nArgued December 9, 2009. Submitted December 22, 2009.\\nDecided July 14, 2010.\\n2010 MT 154.\\n357 Mont. 52.\\n236 P.3d 574.\\nFor Appellant: Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender (argued), Helena.\\nFor Appellee: Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General (argued), Helena; Mitch Young, Lake County Attorney, Poison.\", \"word_count\": \"3564\", \"char_count\": \"21302\", \"text\": \"CHIEF JUSTICE McGRATH\\ndelivered the Opinion of the Court.\\n\\u00b61 Andrews appeals from the District Court's order denying his motion to withdraw his Alford plea to a charge of felony criminal possession of dangerous drugs with intent to distribute. We affirm.\\n\\u00b62 The issue on appeal is whether the District Court properly denied Andrews' motion to withdraw his plea.\\nPROCEDURAL AND FACTUAL BACKGROUND\\n\\u00b63 In March, 2007, agents working with the Northwest Drug Task Force investigated several individuals suspected of selling drugs, using an informant who made drug purchases as part of the investigation. On March 11 Judy Harlow contacted the informant to report that she had drugs to sell. The informant called Harlow who told him to go to her residence and speak to Andrews, who would make the sale.\\n\\u00b64 The informant went to Harlow's residence, met Andrews, and gave him money to purchase methamphetamine. Andrews left with a woman named Sonya Bullcalf and returned 20 minutes later. The informant left Harlow's residence and reported to the Task Force agent, giving him a bag of powder he had obtained from Andrews. The informant reported that Andrews gave him the powder, that he gave the money to Andrews, and that Andrews gave the money to Bullcalf. Task Force agents monitored and recorded the informant's conversations with Andrews through a hidden transmitter worn by the informant. The agents did not have a search warrant authorizing the electronic surveillance.\\n\\u00b65 Agents returned to Harlow's residence with a search warrant. They found methamphetamine in Harlow's purse and a spoon with oxycodone residue in a desk in Andrews' room. Andrews admitted to using methadone and admitted that the spoon belonged to him.\\n\\u00b66 On October 2,2007, the State charged Andrews with one count of criminal distribution of dangerous drugs and one count of criminal possession of dangerous drugs. On July 3,2008, Andrews entered into an Acknowledgement of Rights and Plea Agreement in which he agreed to enter an Alford plea to one count of felony criminal possession with intent to distribute and the State agreed to dismiss the possession charge. Andrews agreed that the facts contained in the affidavit in support of the motion for leave to file the information established a factual basis to support the plea. Andrews and the State agreed to jointly recommend that he be committed to the Department of Corrections for seven years, with five years suspended to be served on conditions proposed in the presentence investigation report.\\n\\u00b67 The plea agreement acknowledged that Andrews had the opportunity to examine the charges against him along with the investigative file, that he consulted with his attorney and that he was advised of and understood his rights. In the agreement Andrews acknowledged and waived his right to object to and to move to suppress \\\"any evidence that may have been obtained in violation of the law or constitution.\\\" Finally, Andrews stated in the agreement that his plea was voluntary and that he fully understood the terms and conditions.\\n\\u00b68 The District Court held a hearing on Andrews' plea, reviewing the rights that he was waiving by entering the plea. Andrews testified that he had reviewed the evidence against him with his attorney, including the audio recordings, police report and the allegations of the information and affidavit in support. Andrews testified that he believed it was in his best interest to enter the plea, and that he was certain that the State had enough evidence to prove his guilt beyond a reasonable doubt. The District Court found that Andrews was acting under the advice of competent counsel, that he understood his rights, that he understood the charges and possible punishments, and that he was not acting under any defect or disability. The District Court accepted the plea and found Andrews guilty of the amended charge. Andrews concedes that he entered the plea agreement voluntarily.\\n\\u00b69 On August 20, 2008, after Andrews was adjudged guilty but before he was sentenced, this Court announced its decision in State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489. Goetz held that electronic monitoring and recording of a defendant's conversations in his home with an informant constitute a search subject to the warrant requirement of the Montana Constitution, despite consent of the informant. On October 21, 2008 Andrews moved to withdraw his plea because the Goetz case cast doubt on whether the results of the electronic monitoring could have been used against him.\\n\\u00b610 The District Court held a hearing on Andrews' motion to withdraw his plea. Both the prosecution and the defense agreed that there was no need for the District Court to receive any evidence to decide the motion. Andrews argued that if Goetz had been decided before his plea he could have successfully suppressed the results of the electronic monitoring, would not have entered the plea agreement, and would have proceeded to trial. The District Court denied Andrews' motion, concluding that he had received the benefits of the plea agreement and that even if Goetz required suppression of the electronic monitoring the State still had sufficient evidence to convict.\\nSTANDARD OF REVIEW\\n\\u00b611 The comb may permit a defendant to withdraw a plea to a criminal charge upon a showing of \\\"good cause.\\\" Section 46-16-105(2), MCA; State v. Wise, 2009 MT 32, \\u00b6 9, 349 Mont. 187, 203 P.3d 741. Good cause for withdrawing a plea can be found in reasons other than voluntariness of the plea. Wise, \\u00b6 9. This Court reviews de novo a defendant's motion to withdraw a guilty plea. State v. Usrey, 2009 MT 227, \\u00b6 12, 351 Mont. 341, 212 P.3d 279.\\nDISCUSSION\\n\\u00b612 A voluntary plea is made in light of the law applicable at the time the plea is accepted by the court and does not become vulnerable because of a later judicial decision that changes the law. In Brady v. U.S., 397 U.S. 742, 90 S. Ct. 1463 (1970), the defendant pled to a kidnapping charge that exposed him to the death penalty, but only if he were convicted by a jury. Years after Brady was convicted and sentenced the Supreme Court invalidated the procedure that allowed a jury but not a judge to impose the death penalty. Brady attacked the validity of his plea based upon the change in the law. The Supreme Court held that \\\"a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.\\\" Brady, 397 U.S. at 757, 90 S. Ct. at 1473. The Supreme Court further explained:\\nThe fact that Brady did not anticipate [a change in the law] does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admission in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.\\nBrady, 397 U.S. at 757, 90 S. Ct. at 1473-74. A defendant who waives his state court remedies and enters a plea to the charges against him \\\"does so under the law then existing.\\\" McMann v. Richardson, 397 U.S. 759, 774, 90 S. Ct. 1441, 1450 (1970). A favorable change in the law does not entitle a defendant to withdraw a knowing and voluntary plea. U.S. v. Cortez-Arias, 425 F.3d 547, 548 (9th Cir. 2005); U.S. v. Johnson, 67 F.3d 200, 202 (9th Cir. 1995). Later developments in the law that expand a right a defendant has waived in a plea agreement does not \\\"make the plea involuntary or unknowing or otherwise undo its binding nature.\\\" U.S. v. Quinlan, 473 F.3d 273, 279 (6th Cir. 2007).\\n\\u00b613 While some courts have allowed withdrawal of a plea when a subsequent change in the law were such that the conduct was no longer a crime, see U.S. v. Andrade, 83 F.3d 729, 731 (5th Cir. 1996), the Goetz case did not de-criminalize Andrews' conduct. Moreover, as the District Court stated at the plea withdrawal hearing, even if Goetz required suppression of the electronic monitoring recordings, the State still had evidence available to convict. The informant and investigating officers could still testify and make a case against Andrews.\\n\\u00b614 Other states follow the rule of the Brady case and hold that a post-plea change in the law does not invalidate the plea. People v. Trank, 872 N.Y.S.2d 595, 596-97 (N.Y. App. 2009); State v. Brazer, 751 N.W.2d 619, 630 (Neb. 2008); Sims v. Commonwealth, 233 S.W.3d 731, 733 (Ky. App. 2007); and State v. Reid, 894 A.2d 963, 978-79 (Conn. 2006).\\n\\u00b615 Having entered his plea agreement knowingly and voluntarily, Andrews failed to make a showing of good cause to allow him to withdraw the plea as required by \\u00a7 46-16-105(2), MCA, based upon the subsequent decision in the Goetz case. The District Court properly denied Andrews' motion to withdraw his plea.\\n\\u00b616 Affirmed.\\nJUSTICES MORRIS, RICE and DISTRICT JUDGE SEELEY, sitting for RETIRED JUSTICE WARNER concur.\"}"

mont/3743672.json

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+"{\"id\": \"3743672\", \"name\": \"PETRA MARCELLA POLASEK, n/k/a PETRA MARCELLA CASEY, Petitioner and Appellant, v. ALEXANDER KENJI OMURA, Respondent and Respondent. IN RE THE GRANDPARENT-GRANDCHILD CONTACT OF DANIELA and PETER POLASEK, Respondents and Respondents\", \"name_abbreviation\": \"Polasek v. Omura\", \"decision_date\": \"2006-05-09\", \"docket_number\": \"No. 05-107\", \"first_page\": \"157\", \"last_page\": \"163\", \"citations\": \"332 Mont. 157\", \"volume\": \"332\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T20:54:07.851308+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES NELSON, LEAPHART, WARNER and MORRIS concur.\", \"parties\": \"PETRA MARCELLA POLASEK, n/k/a PETRA MARCELLA CASEY, Petitioner and Appellant, v. ALEXANDER KENJI OMURA, Respondent and Respondent. IN RE THE GRANDPARENT-GRANDCHILD CONTACT OF DANIELA and PETER POLASEK, Respondents and Respondents.\", \"head_matter\": \"PETRA MARCELLA POLASEK, n/k/a PETRA MARCELLA CASEY, Petitioner and Appellant, v. ALEXANDER KENJI OMURA, Respondent and Respondent. IN RE THE GRANDPARENT-GRANDCHILD CONTACT OF DANIELA and PETER POLASEK, Respondents and Respondents.\\nNo. 05-107.\\nSubmitted on Briefs December 21, 2005.\\nDecided May 9, 2006.\\n2006 MT 103.\\n332 Mont. 157.\\n136 P.3d 519.\\nFor Appellant: James Goetz and Trent Gardner, Goetz, Gallik & Baldwin, Bozeman; Mark F. Higgins, Ugrin, Alexander, Zadick & Higgins, Great Falls.\\nFor Respondents: David A. Hopkins, Attorney at Law, Great Falls.\", \"word_count\": \"2353\", \"char_count\": \"14519\", \"text\": \"JUSTICE RICE\\ndelivered the Opinion of the Court.\\n\\u00b61 Petra Casey (Petra) appeals the order entered in the Eighth Judicial District Court, Cascade County, awarding Petra's parents, Peter and Daniela Polasek (Polaseks), contact with Petra's daughter, Olivia Omura (Olivia). We reverse and remand for further proceedings.\\n\\u00b62 The following issues are dispositive on appeal:\\n\\u00b63 Did the District Court err in granting the Polaseks' petition for contact with their grandchild, Olivia?\\n\\u00b64 Does Petra's failure to timely notify the Attorney General of her challenge to the District Court's application of \\u00a7 40-9-102(2), MCA, procedurally bar her appeal?\\nBACKGROUND\\n\\u00b65 Petra and Alexander Omura (Alexander), Olivia's father, were married in 1996, and they subsequently divorced in 1997 when Olivia was six months old. After the divorce, Petra became the primary custodial parent, and she and Olivia moved from Montana to Grosse Point, Michigan, to live with the Polaseks. Petra and Olivia stayed with the Polaseks for three to five months before they moved into their own house. They later moved from Grosse Point to Rochester, Minnesota, in the fall of 1999. Daniela Polasek stayed with Petra and Olivia in October and November 1999 to assist in the transition. However, sometime in November Petra and Daniela had a falling out, resulting in Daniela returning to Grosse Point.\\n\\u00b66 From the time of Petra's divorce in August 1997 until November 1999, the Polaseks provided substantial care for Olivia while Petra, a physician, worked and studied for her Boards. Despite Polaseks' submission of affidavits on Petra's behalf in a later custody dispute with Alexander, and despite Petra's assurances-including a written promise-that she would permit future visits between her parents and Olivia, the relationship did not improve. Eventually, Petra forbade all contact between the Polaseks and Olivia, including communication by telephone and mail.\\n\\u00b67 As Intervenors in the dissolution action between Alexander and Petra, the Polaseks filed a petition for contact with Olivia on February 2, 2004, pursuant to \\u00a7 40-9-101 et seq., MCA. Following a bench trial, the District Court entered its findings of fact, conclusions of law, and an order on February 9, 2005, granting the Polaseks unsupervised contact with Olivia on the third weekend of every other month and for two weeks every summer. In addition, the Polaseks were granted the right of telephone contact once per week and of correspondence by mail. The District Court also ordered the parties to attend trans-parenting classes. From this order Petra appeals.\\nSTANDARD OF REVIEW\\n\\u00b68 \\\"We review a district court's interpretation and application of statutes for correctness.\\\" In re T.H., 2005 MT 237, \\u00b6 35, 328 Mont. 428, \\u00b6 35, 121 P.3d 541, \\u00b6 35.\\nDISCUSSION\\n\\u00b69 Did the District Court err in granting the Polaseks' petition for contact with their grandchild, Olivia?\\n\\u00b610 Petra argues that, in light of the United States Supreme Court's holding in Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, in order to determine the \\\"best interest of the child\\\" as required in \\u00a7 40-9-102(2), MCA, a court must first determine whether the child's custodial parent is unfit or abusive or whether the child is dependent or neglected. Absent such a finding, Petra contends, the court must conclude that the parent's wishes regarding grandparent contact comprise the \\\"best interest\\\" of the child. Alternatively, Petra argues that Troocel requires a court considering a grandparent contact petition to assign \\\"special weight\\\" to a fit parent's wishes when determining what is in a child's best interest.\\n\\u00b611 The Polaseks respond that Troocel does not require grandparent contact to be awarded only where a parent is unfit or abusive or where the child is dependent or neglected. They contend that the District Court properly applied the \\\"best interest\\\" standard.\\n\\u00b612 In Troxel, the United States Supreme Court considered whether a Washington nonparental visitation statute infringed upon a parent's fundamental right \\\"to make decisions concerning the care, custody, and control\\\" of her children. Troxel, 530 U.S. at 66, 120 S.Ct. at 2060, 147 L.Ed.2d at 57. The plurality opinion written by Justice O'Connor and joined by three other justices described the statute at issue:\\nAccording to the statute's text, \\\"any person may petition the court for visitation rights at any time,\\\" and the court may grant such visitation rights whenever \\\"visitation may serve the best interest of the child.\\\" . [I]n practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.\\nTroxel, 530 U.S. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d at 57-58 (emphasis in original).\\n\\u00b613 The Troxels, paternal grandparents to Granville's two daughters, petitioned for visitation with their grandchildren. Granville had been willing to provide the Troxels some visitation with her children but not as much as the Troxels sought. The trial court granted the Troxels' petition, but the Washington Court of Appeals reversed that decision. The Washington Supreme Court affirmed the Court of Appeals, concluding that the visitation statute as written violated the United States Constitution. The United States Supreme Court affirmed the Washington Supreme Court under a different rationale. The plurality concluded that the statute-as applied to Granville, rather than as written-was unconstitutional, reasoning that: the language emphasized in the above quotation made the statute \\\"breathtakingly broad,\\\" Troxel, 530 U.S. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d at 57; the trial court failed to give any special weight to the fit parent's wishes, Troxel, 530 U.S. at 69, 120 S.Ct. at 2062, 147 L.Ed.2d at 58; and, the trial court improperly apphed a \\\"presumption in favor of grandparent visitation,\\\" Troxel, 530 U.S. at 72, 120 S.Ct. at 2063, 147 L.Ed.2d at 60. The plurality emphasized that \\\"the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children,\\\" Troxel, 530 U.S. at 66, 120 S.Ct. at 2060, 147 L.Ed.2d at 57, and concluded:\\n[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. See, e.g., Flores, 507 U.S. at 304.\\nThe problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughters'best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption.\\nTroxel, 530 U.S. at 68-69, 120 S.Ct. at 2061-62, 147 L.Ed.2d at 58.\\n\\u00b614 The Troxel plurality opinion is consistent with our jurisprudence and helps guide our construction of the \\\"best interest of the child\\\" standard contained in Montana's grandparent contact statute. Troxel held that parents have a fundamental constitutional right \\\"to make decisions concerning the care, custody, and control of their children,\\\" Troxel, 530 U.S. at 66, 120 S.Ct. at 2060, 147 L.Ed.2d at 57, and we have likewise held that \\\"[i]t is well-established that a natural parent's right to care and custody of his or her child is a fundamental liberty interest .\\\"In re C.R.O., 2002 MT 50, \\u00b6 10, 309 Mont. 48, \\u00b6 10, 43 P.3d 913, \\u00b6 10. Further, parents are presumed to act in their child's best interest. Troxel, 530 U.S. at 68, 120 S.Ct. at 2061, 147 L.Ed.2d at 58 (citing Parham v. J.R. (1979), 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101).\\n\\u00b615 Thus, Troxel instructs that when a grandparent petitions for contact with a grandchild, a court must first inquire whether the child's parent is fit; that is, the court must determine whether the parent \\\"adequately cares for his or her children.\\\" Troxel, 530 U.S. at 68, 120 S.Ct. at 2061, 147 L.Ed.2d at 58. If the parent is fit, a presumption arises in favor of the parent's wishes because \\\"the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better' decision could be made.\\\" Troxel, 530 U.S. at 72-73, 120 S.Ct. at 2064, 147 L.Ed.2d at 61. If the parent is not fit, no presumption arises and the parent's wishes are due no deference. The close scrutiny that we apply to any infringement on a person's right to parent a child, see In re Guardianship of Aschenbrenner (1979), 182 Mont. 540, 544-45, 597 P.2d 1156, 1160, and Pierce v. Pierce (1982), 198 Mont. 255, 260, 645 P.2d 1353, 1356, requires that the petitioning grandparent prove by clear and convincing evidence that it is in the child's best interest to have contact with the grandparent, and, in the case of an objecting fit parent, that the presumption in favor of the parent's wishes has been rebutted. See Evans v. McTaggart (Alaska 2004), 88 P.3d 1078 (holding that requiring a petitioner to establish by clear and convincing evidence that visitation is in the best interests of the child would provide effective protection for a parent's choice, except where the choice is plainly contrary to a child's best interests); cf. In re Custody & Parental Rights of P.M., 1998 MT 264, \\u00b6 12, 291 Mont. 297, \\u00b6 12, 967 P.2d 792, \\u00b6 12 (a party seeking termination of parental rights must demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied).\\n\\u00b616 Here, there is no indication that the District Court inquired into Petra's fitness as a parent. Moreover, the District Court failed to accord Petra's wishes any deference. To the contrary, in its findings of fact the District Court referred to her wishes only dismissively:\\nOther than Petra and Dr. Allen's [Olivia's clinical psychologist] concern that the grandparents may impart something negative about the mother, there is not a scintilla of evidence in this case that unfettered visitation between grandparents and child would be in anyway [sic] harmful to the child.\\n\\u00b617 We express no opinion regarding Petra's fitness as a-parent or on the weight of the evidence in the case. However, because the District Court did not apply the correct analysis, as outlined above, we reverse the District Court's ruling and remand for further proceedings.\\n\\u00b618 Does Petra's failure to notify the Attorney General of her challenge to the District Court's interpretation and application of \\u00a7 40-9-102(2), MCA, procedurally bar her appeal?\\n\\u00b619 The Polaseks contend that this Court should not consider Petra's appeal because she failed to notify the Attorney General of her challenge to the District Court's application of \\u00a7 40-9-102(2), MCA-which they argue is an attack upon the statute's constitutionality-as required by Rule 24(d), M.R.Civ.P., and Rule 38, M.R.App.P. Petra replies that Rule 24(d), M.R.Civ.P., requires notice to the Attorney General only when a party brings a facial constitutional challenge to a statute, not when a party challenges a court's unconstitutional application of a statute, as she contends that she does here. In any event, Petra maintains, notice was given to the Attorney General in accordance with Rule 38, M.R.App.P., albeit belatedly, and the Attorney General has not intervened, which Petra argues cures any failure to notify that office pursuant to Rule 24(d), M.R.Civ.P.\\n\\u00b620 We need not address the merits of either argument. The issue raised by Petra and briefed in this appeal is not whether the best interest standard for grandparent-grandchild contact set forth in \\u00a7 40-9-102(2), MCA, is unconstitutional. Indeed, Troxel does not mandate that the statute be rendered unconstitutional, and we have not declared it to be. Rather, the issue Petra has raised is whether use of the statute's best interest standard, without first considering the requirements of Troxel, violated her due process rights. Our decision today requires that grandparent proceedings must begin, in accordance with Troxel, with the presumption that a fit parent acts in the child's best interest. From that point of beginning, the statute's best interest standard, as enacted, remains intact as the standard by which a grandparent's request for contact must be judged. Although arguably an \\\"as applied\\\" challenge to the statute, Petra's appeal, in reality, is a request for proper delineation of parental rights which must precede application of the grandparent visitation statute and the best interest standard stated therein.\\n\\u00b621 Reversed and remanded for further proceedings.\\nJUSTICES NELSON, LEAPHART, WARNER and MORRIS concur.\\nThe caption of the case has been changed to conform to the requirements of \\u00a7 40-9-101(2), MCA.\\nSection 40-9-102(2), MCA, reads as follows: \\\"Grandparent-grandchild contact granted under this section may be granted only upon a finding by the court, after a hearing, that the contact would be in the best interest of the child.\\\"\\nThe Polaseks also argue that Petra's violation of her written promise that they would be permitted contact with Olivia constitutes a breach of contract. However, no breach of contract theory was raised below, and we will not consider it here. In re Estate of Kinds father, 2005 MT 51, \\u00b6 34, 326 Mont. 192, \\u00b6 34, 108 P.3d 487, \\u00b6 34 (\\\"This Court has long held that it will not address either as issue raised for the first time on appeal or a party's change in legal theory.\\\").\\nJustices Souter and Thomas filed separate concurring opinions.\\nWe express no opinion about what implications, if any, a determination in a grandparent contact proceeding that a parent is not fit may have in other contexts.\"}"

mont/3762597.json

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+"{\"id\": \"3762597\", \"name\": \"STATE OF MONTANA, Plaintiff and Appellee, v. THOMAS DANIEL BROTHERS, Defendant and Appellant\", \"name_abbreviation\": \"State v. Thomas Daniel Bros.\", \"decision_date\": \"2013-08-13\", \"docket_number\": \"No. DA 12-0547\", \"first_page\": \"254\", \"last_page\": \"258\", \"citations\": \"371 Mont. 254\", \"volume\": \"371\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-11T00:48:22.403397+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICES COTTER, MORRIS, BAKER and RICE concur.\", \"parties\": \"STATE OF MONTANA, Plaintiff and Appellee, v. THOMAS DANIEL BROTHERS, Defendant and Appellant.\", \"head_matter\": \"STATE OF MONTANA, Plaintiff and Appellee, v. THOMAS DANIEL BROTHERS, Defendant and Appellant.\\nNo. DA 12-0547.\\nSubmitted on Briefs June 12, 2013.\\nDecided August 13, 2013.\\n2013 MT 222.\\n371 Mont. 254.\\n307 P.3d 306.\\nFor Appellant: Wade Zolynski, Chief Appellate Defender, Jonathan King, Assistant Appellate Defender; Helena.\\nFor Appellee: Timothy C. Fox, Montana Attorney General, Miche\\u00e1l S. Wellenstein, Assistant Attorney General; Helena; Ed Corrigan, Flathead County Attorney, Kalispell.\", \"word_count\": \"1332\", \"char_count\": \"8105\", \"text\": \"JUSTICE WHEAT\\ndelivered the Opinion of the Court.\\n\\u00b61 Defendant and Appellant Thomas Brothers (Brothers) appeals the Eleventh Judicial District Court's award of $1,069.02 in restitution to the State. We reverse.\\nISSUE\\n\\u00b62 We restate the sole issue on appeal as follows:\\n\\u00b63 Did the District Court err by ordering Brothers to pay restitution to the State?\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b64 Brothers was charged with sexual assault, incest, and indecent exposure by information on September 1, 2010. The District Court issued a warrant and Brothers was arrested in New Mexico on January 10, 2011. Brothers pled guilty to one count of sexual assault on February 24, 2012, as part of a plea agreement. The agreement recommended a 15-year prison sentence with 10 years suspended. The agreement allowed Brothers to withdraw his plea if the District Court imposed a different sentence. The Court accepted Brothers' plea and conducted a sentencing hearing on July 5, 2012.\\n\\u00b65 At the sentencing hearing, the State requested that Brothers pay $1,069.02 in restitution to reimburse the State for the cost of extraditing Brothers from New Mexico. The State did not provide an affidavit or any testimony in support of this request. Brothers objected, claiming that the restitution was 'just brought up.\\\" The Court eventually ordered $1,069.02 in restitution without either receiving an affidavit or testimony from the State to determine the proper amount. The Court also deviated from the plea agreement's sentencing recommendation, imposing a term of 20 years in Montana State Prison with 10 years suspended.\\n\\u00b66 Brothers subsequently withdrew his guilty plea due to the Court's imposition of a sentence longer than that recommended by the plea agreement. Brothers and the State thereafter filed a motion stipulating to an amendment of the judgment and sentence. The parties recommended the Court reconsider the July 5, 2012 sentence and impose the plea's recommended 15-year sentence with 10 suspended.\\n\\u00b67 The District Court held a hearing on the parties' stipulation to amend the judgment and sentence on July 11, 2012. The Court noted that the parties requested that Brothers be re-sentenced to Montana State Prison for a term of 15 years, 10 suspended \\\"pursuant to the same conditions as previously were imposed last week[.]\\\" The Court then re-sentenced Brothers to the requested term and noted that it was also imposing \\\"the restitution that was previously ordered for your return-your extradition costs[.]\\\" Brothers appeals the imposition of restitution without the State producing either an affidavit or testimony describing the costs of his extradition.\\nSTANDARD OF REVIEW\\n\\u00b68 Pursuant to \\u00a7 46-18-201(5), MCA, if a person has been found guilty of an offense, whether by a verdict of guilty or by a plea of guilty or nolo contendr\\u00e9, and the sentencing judge finds that a \\\"victim\\\" has sustained a \\\"pecuniary loss,\\\" as the terms are defined in \\u00a746-18-243, MCA, then the sentencing judge shall, as part of the sentence, require payment of full restitution to the \\\"victim,\\\" as provided in \\u00a746-18-241 through -249, MCA. State v. Jent, 2013 MT 93, \\u00b6 9, 369 Mont. 468, 299 P.3d 332. Such analysis requires the sentencing judge to apply the statutory definition of'Victim\\\" to the factual circumstances of the case. Jent, \\u00b6 9. This constitutes a mixed question of law and fact. Jent, \\u00b6 9 (citing State v. Warclub, 2005 MT 149, \\u00b6 21, 327 Mont. 352, 114 P.3d 254).\\n\\u00b69 In our review on appeal, we will not disturb factual findings unless they are clearly erroneous, and whether those facts satisfy the legal standard is reviewed de novo. Jent, \\u00b6 10 (citing Warclub, \\u00b6 23). We also review de novo whether a district court had statutory authority to impose the sentence, whether the sentence falls within the applicable sentencing parameters, and whether the court adhered to mandates of the applicable sentencing statutes. State v. Johnson, 2011 MT 116, \\u00b6 12, 360 Mont. 443, 254 P.3d 578.\\nDISCUSSION\\n\\u00b610 Both the State and Brothers agree that the District Court lacked the authority to impose restitution because it failed to follow the statutory mandate that a victim's pecuniary loss be substantiated in an affidavit or through live testimony. However, while neither party has raised the specific argument on appeal, we conclude that the District Court lacked the authority to impose restitution because the State is not a 'Victim\\\" as required by \\u00a746-18-201(5), MCA, and defined in \\u00a746-18-243(2)(a), MCA.\\n\\u00b6 11 Sentencing courts are required to impose a sentence that includes payment of full restitution whenever the court finds the \\\"victim\\\" of an offense has sustained a pecuniary loss. Section 46-18-201(5), MCA; Johnson, \\u00b6 16; State v. Hunt, 2009 MT 265, \\u00b6 16, 352 Mont. 70, 214 P.3d 1234. A \\\"victim\\\" is defined as:\\n(i) a person who suffers loss of property, bodily injury, or death as a result of:\\n(A) the commission of an offense;\\n(B) the good faith effort to prevent the commission of an offense; or\\n(C) the good faith effort to apprehend a person reasonably suspected of committing an offense;\\n(ii) the estate of a deceased or incapacitated victim or a member of the immediate family of a homicide victim;\\n(iii) a governmental entity that suffers loss of property as a result of the commission of an offense in this state or that incurs costs or losses during the commission or investigation of an escape, as defined in 45-7-306, or during the apprehension or attempted apprehension of the escapee',\\n(iv) an insurer or surety with a right of subrogation to the extent it has reimbursed the victim of the offense for pecuniary loss;\\n(v) the crime victims compensation and assistance program established under Title 53, chapter 9, part 1, to the extent that it has reimbursed a victim for pecuniary loss; and\\n(vi) any person or entity whom the offender has voluntarily agreed to reimburse as part of a voluntary plea bargain.\\nSection 46-18-243(2)(a), MCA (emphasis added).\\n\\u00b612 We recently considered when the State can be a \\\"victim\\\" for the purposes of the restitution statutes in State v. Jay, 2013 MT 79, 369 Mont. 332, 298 P.3d 396. There, the district court ordered the defendant to pay $600 in restitution to the State for expenses incurred in interviewing an expert defense witness. Jay, \\u00b6 14. We concluded that a \\\"victim\\\"under \\u00a746-18-243(2)(a), MCA, included a governmental entity \\\"only when that entity suffers property damage in the commission of a crime, or incurs costs in the investigation or apprehension of an escaped person.\\\" Jay, \\u00b6 48. We then found neither situation to be present, as the State had incurred expenses only by interviewing a defense witness. Jay, \\u00b6 48. Thus, we concluded that the State was not a 'Victim\\\" entitled to restitution under \\u00a746-18- 201(5), MCA. Jay, \\u00b6 48.\\n\\u00b613 The same reasoning applies here. The State sought restitution for expenses incurred extraditing Brothers from New Mexico. Like Jay, the expenses were not the result of property damage suffered during the commission of a crime or of the investigation or apprehension of an escapee. According to \\u00a746-18-243(2)(a), MCA, and Jay, the State is therefore not a \\\"victim\\\" and is not entitled to seek restitution from Brothers. We accordingly vacate the $1,069.02 in restitution awarded to the State.\\nCONCLUSION\\n\\u00b614 Because we conclude that the State was not a 'Victim\\\" for the purposes of the restitution statutes, we conclude that the District Court lacked the authority to award restitution to the State.\\n\\u00b615 Reversed and remanded for entry of an amended judgment consistent herewith.\\nJUSTICES COTTER, MORRIS, BAKER and RICE concur.\"}"

mont/3852517.json

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+"{\"id\": \"3852517\", \"name\": \"IN THE MATTER OF STEVEN T. POTTS, an Attorney at Law\", \"name_abbreviation\": \"In re Potts\", \"decision_date\": \"2007-03-22\", \"docket_number\": \"No. 04-562\", \"first_page\": \"517\", \"last_page\": \"538\", \"citations\": \"336 Mont. 517\", \"volume\": \"336\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T23:54:53.217200+00:00\", \"provenance\": \"CAP\", \"judges\": \"/S/ DISTRICT JUDGE JEFFREY M. SHERLOCK, sitting for JUSTICE LEAPHART\", \"parties\": \"IN THE MATTER OF STEVEN T. POTTS, an Attorney at Law.\", \"head_matter\": \"IN THE MATTER OF STEVEN T. POTTS, an Attorney at Law.\\nNo. 04-562.\\nDecided March 22, 2007.\\n2007 MT 81.\\n158 P.3d 418.\\n336 Mont. 517.\", \"word_count\": \"8024\", \"char_count\": \"50614\", \"text\": \"OPINION AND ORDER\\n\\u00b61 The Commission on Practice of the Supreme Court of the State of Montana (the Commission) entered its Findings of Fact, Conclusions of Law, and Recommendations on January 5, 2006, regarding a complaint filed against Steven T. Potts (Potts), an attorney licensed to practice law in the State of Montana. The Commission concluded that Potts violated Rules 1.2(d) and 3.3(a)(2) of the Montana Rules of Professional Conduct (M.R.P.C.) during bis representation of heirs in a will contest. We adopt the Commission's Findings of Fact and Conclusions of Law. We order Potts to appear before this Court for public censure.\\n\\u00b62 Potts presents the following issues for review:\\n\\u00b63 1. Whether Rule 1.6, M.R.P.C., required Potts to maintain his clients' confidences to the exclusion of being candid with opposing counsel and candid with the tribunal.\\n\\u00b64 2. Whether Potts violated Rule 1.2(d), M.R.P.C.\\n\\u00b65 3. Whether Potts violated Rule 3.3(a)(2), M.R.P.C.\\n\\u00b66 4. Whether the Commission improperly excluded Potts's proposed expert witness testimony.\\n\\u00b67 5. Whether the Commission improperly excluded a portion of Potts's testimony as inadmissible hearsay.\\n\\u00b68 6. Whether the Commission's proposed sanctions are appropriate.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b69 This disciplinary action arises from Potts's representation in a will contest involving the estate of Ernestine Stukey (Ernestine). Ernestine died March 8, 2001. Ernestine was survived by her daughter, Evon Leistiko (Evon), her six grandchildren, including Tyson Leistiko (Tyson), and her mece, Charlene Howard (Charlene).\\n\\u00b610 Ernestine executed a will on January 14,1998, disinheriting Evon and bequeathing most of her estate to Charlene. The will designated Charlene and Ernestine's friend, Verna Kessner (Verna), as co-personal representatives of her estate.\\n\\u00b611 Ernestine's mental health deteriorated over the next two years, and she was involuntarily committed to the Montana State Hospital at Warm Springs. Evon petitioned the Third Judicial District, Deer Lodge County, to become Ernestine's conservator. The district court appointed Evon as conservator. The law firm of Church, Harris, Johnson & Williams, P.C. (Ernestine's attorneys) represented Ernestine's interests throughout the conservatorship proceedings.\\n\\u00b612 Evon filed an initial inventory (initial inventory) with the district court in the conservatorship proceedings, reporting Ernestine's net worth as $1,254,795. The initial inventory included several accounts with a total worth of approximately $270,000, that Evon held in joint tenancy ownership with Ernestine or in which Evon was named as a beneficiary to the accounts (joint tenancy accounts). Ernestine established these joint tenancy accounts with Evon in 1967 and 1991.\\n\\u00b613 As Ernestine's conservator and guardian, Evon petitioned the court to distribute gift money totaling $160,000 from Ernestine's estate to family members. The district court denied the petition on January 24, 2001, and authorized Ernestine's attorneys to investigate Evon's conduct as conservator. Ernestine's attorneys petitioned the court to remove Evon as conservator as a result of the investigation. Ernestine's attorneys later filed an action seeking recovery of monetary damages for Evon's alleged breach of fiduciary duty and self dealing related to the conservatorship proceedings. Ernestine's attorneys alleged that Evon had misappropriated $10,000 of Ernestine's money and engaged in other mismanagement of Ernestine's funds while Ernestine was incapacitated.\\n\\u00b614 Without notifying the district court or Ernestine's attorneys, Evon moved Ernestine to an assisted living facility in the state of Washington. Ernestine purportedly executed a second will (second will) with assistance of Washington counsel on February 12, 2001, while staying in the Alzheimer's Unit of the facility. The second will appointed Evon as personal representative and bequeathed the bulk of the estate to Evon and Evon's family.\\n\\u00b615 Ernestine died on March 8, 2001. A will contest ensued. Ernestine's attorneys filed a petition in the Eighth Judicial District, Cascade County, on March 13,2001, to probate Ernestine's 1998 will. Evon filed a competing petition to probate Ernestine's second will in Chelan County, Washington, on March 23, 2001.\\n\\u00b616 Evon also filed a second inventory (second inventory) with her petition to probate Ernestine's second will in Chelan County, Washington. This second inventory reported $1,253,000 as the gross value of Ernestine's estate. Evon's report of the estate's total value in the second inventory comported with the total estate value in the initial inventory that she had filed in the conservatorship proceeding in the Third Judicial District, Deer Lodge County. It also matched the total estate value that she reported in the final inventory (final inventory) to the Third Judicial District, filed May 10, 2001, in the conservatorship proceedings. All three inventories filed by Evon listed all of Ernestine's assets and included the joint tenancy accounts. None of the three inventories distinguished between probate assets and nonprobate assets, such as the joint tenancy accounts.\\n\\u00b617 Evon retained Potts to represent her and the six grandchildren, including Tyson, in the will contest in the Eighth Judicial District, Cascade County. Evon's attorney in the conservatorship proceeding provided Potts with Evon's legal file. These files included the hearing transcript regarding the unauthorized gifts, the accountings, the inventories, and the wills.\\n\\u00b618 Attorney Ward E. Taleff (Taleff) represented Charlene. Attorney Sue Ann Love (Love) represented the University of Wisconsin, a beneficiary under Ernestine's 1998 will. Attorney Greg Hatley (Hatley) represented a church holding a charitable interest in Ernestine's estate under the 1998 will. Attorneys from Church, Harris, Johnson & Williams, P.C., represented Ernestine's estate.\\n\\u00b619 The parties agreed to mediate all disputes concerning the will contest and Evon's alleged misconduct in the conservatorship proceedings. Ernestine's attorneys filed a confidential settlement brochure that indicated the parties assumed a total estate value of $1.2 million, as Evon had reported in the three inventories, as the basis for settlement.\\n\\u00b620 Potts attended the settlement conference on November 12 and 13, 2001, with his clients, Evon and Tyson. At that time, Evon already had claimed a fraction of the joint tenancy accounts and was working to obtain the rest of the $270,000. Evon never disclosed this fact at the mediation, even though the other parties apparently assumed that they were negotiating based on the $1.2 million total estate value that included the joint tenancy accounts. Potts also remained silent as to whether the settlement included the joint tenancy accounts.\\n\\u00b621 The parties reached an agreement during the second day of the mediation. They drafted a memorandum of understanding (memorandum) before departing the mediation to memorialize the terms of their settlement. The memorandum purported to resolve both the will contest and conservatorship dispute. It called for portions of Ernestine's estate to go to specific beneficiaries and for fifty percent of the remainder to go to Charlene and for fifty percent of the remainder to go to Evon and Ernestine's grandchildren. The memorandum referred to the division of \\\"the Estate,\\\" but failed to assign a particular dollar value to the total settlement. The memorandum also made no mention of the three separate inventories that Evon had filed in the conservatorship and probate proceedings as representing the value of \\\"the Estate.\\\" The memorandum further stated that the parties would stipulate to the dismissal of the conservatorship action filed against Evon and the Washington probate proceeding. Glenn Tremper (Tremper), one of the attorneys representing Ernestine's estate from Church, Harris, Johnson & Williams, P.C., signed the memorandum along with attorneys Taleff, Love, and Potts. Evon, Tyson, Charlene, and Verna also signed the memorandum.\\n\\u00b622 In the week following the settlement conference, Tremper suspected that Evon was attempting to secure the joint tenancy accounts. Tremper telephoned Potts to discuss the matter on November 20, 2001. Tremper wrote a letter to Potts on the same day as the telephone conversation, asking Potts to confirm that the parties had reached the settlement in the mediation \\\"based upon the good faith assumption that Ernestine's estate includes the assets identified by Evon as belonging to Ernestine in her proposed Final Accounting before Judge Mizner,\\\" in the conservatorship proceeding. The final accounting of the conservatorship proceeding before Judge Mizner included the joint tenancy accounts and valued the total estate at $1.2 million. Tremper's letter requested that Potts let him know \\\"immediately' if his clients had a different understanding of the settlement.\\n\\u00b623 Potts showed Tremper's letter to his client, Tyson. Potts testified that he advised Tyson that any questions concerning what assets were included in the estate \\\"will get cleared up,\\\" but that he would prefer to resolve any such dispute \\\"sooner rather than later.\\\" Tyson instructed Potts not to respond because he wanted to deal only with a personal representative to be appointed later by the court. Potts did not answer the letter. Tremper construed Potts's silence as confirmation that the parties had based the settlement on the $1.2 million total estate value that Evon had reported to the courts in the initial, second, and final inventories.\\n\\u00b624 One week later, Potts drafted and circulated a stipulation that purported to resolve \\\"all\\\" disputes regarding the division of Ernestine's \\\"estate\\\" as stated in the memorandum. The stipulation called for the appointment of attorney R. William Walsh (Walsh) to serve as personal representative of Ernestine's estate. The stipulation also dismissed the probate proceedings in Chelan County, Washington, and dismissed the conservatorship action against Evon in the Third Judicial District, Deer Lodge County. Potts, Taleff, Hatley, and Love signed the stipulation filed in the Eighth Judicial District, Cascade County on November 28, 2001. Attorney Dan Shannon of Church, Harris, Johnson & Williams, P.C., signed the stipulation on behalf of Tremper in representation of Verna and Charlene.\\n\\u00b625 A battle soon erupted over the meaning and effect of the stipulation and the memorandum. Walsh filed a petition in the Eighth Judicial District on September 3,2002, asking for the court's direction on distribution of the joint tenancy accounts. Charlene argued in response that Evon was not entitled to claim the joint tenancy accounts outside the settlement agreement. The district court held a hearing on February 3, 2003, and determined that Evon had no right to the joint tenancy accounts because the parties had relied on the $1.2 million total estate value, as she had reported in the final inventory in the conservatorship proceeding, as the basis of the settlement. We affirmed the district court's determination that, although the memorandum was ambiguous, the parties intended the $1.2 minion total estate value, including the joint tenancy accounts, to be included in the memorandum and the settlement. In Re Estate of Stukey, 2004 MT 279, \\u00b6 75-76, 323 Mont. 241, \\u00b6 75-76, 100 P.3d 114, \\u00b6 75-76. (Stukey I). We later affirmed the personal representative's request to distribute the estate according to the formula set forth in Stukey I. See In Re Estate of Stukey, 2005 MT 349N, 330 Mont. 401, 126 P.3d 507. (Stukey II).\\n\\u00b626 The Office of Disciplinary Counsel of the State of Montana (ODC) received a complaint regarding Potts's conduct surrounding the settlement. ODC investigated and filed a formal complaint against Potts on August 19,2004, alleging that Potts committed two counts of professional misconduct. The first count alleges that Potts engaged in or assisted in client fraud, a violation of Rule 1.2(d), M.R.P.C., by following his client's instructions not to disclose material information to opposing counsel. The second count charges that Potts breached the duty of candor to the tribunal, a violation of Rule 3.3(a)(2), M.R.P.C., by faffing to disclose material information to the district court presiding over the contested will action.\\n\\u00b627 The Commission heard the matter on July 27 and 28, 2005. Tremper testified before the Commission that \\\"the estate\\\" encompassed the $1.2 million total value of Ernestine's estate, as Evon had reported to the courts in the initial, second, and final inventories. Tremper admitted that he knew Evon had asserted an interest in at least some of the joint tenancy accounts. He testified that he believed, based on discussions at the mediation, however, that the settlement included the joint tenancy accounts to satisfy both the will contest and the claim for damages related to Evon's alleged mishandling of funds while Ernestine had been incapacitated. Tremper also testified that Potts assured him in their telephone conversation shortly after the mediation that the settlement encompassed the $1.2 million total value of the estate. Potts denied having made the statement.\\n\\u00b628 Potts testified that he believed the settlement conference included only probate assets and not the joint tenancy accounts that Evon held with Ernestine. He further testified that he was \\\"confused\\\" by Evon's conduct regarding the joint tenancy accounts. Evon contradicted Potts, however, in testimony given at a February 3, 2003, hearing in the Eighth Judicial District to determine the basis of the settlement as stated in the memorandum. Evon testified that her lawyer knew, before the November mediation, that she had planned to obtain the joint tenancy accounts. The Commission admitted Evon's previous testimony at the disciplinary hearing. Potts does not contest here the Commission's decision to admit Evon's previous testimony on this point. Potts also admitted that Tyson had told him as early as four months before the mediation that Evon planned to obtain jointly held property regardless of the outcome of any settlement.\\n\\u00b629 The Commission determined that the parties to the mediation had negotiated the settlement based on the $1.2 million total value of the estate as Evon had reported to the courts in three separate inventories and two petitions. The Commission found that Potts's clients, Evon and Tyson, had informed him well in advance of the mediation that Evon had intended to take the joint tenancy accounts outside of any settlement agreement. The Commission further found that Potts failed to answer Tremper's specific inquiry as to whether the joint tenancy accounts were included in the settlement. Potts instead had drafted and circulated the stipulation declaring that all disputes had been settled. The Commission found that Potts had failed to inform the district court and the other parties that the value of the settlement remained at issue.\\n\\u00b630 The Commission concluded that, based on these findings, clear and convincing evidence supported the conclusion that Potts knew that his clients were using his services to perpetuate fraud in violation of Rules 1.2(d) and 3.3(a)(2), M.R.P.C., as the rules existed in 2001. The Commission concluded that Potts's clients had negotiated a settlement based on Ernestine's $1.2 million estate and then improperly had taken money outside the settlement agreement. The Commission concluded that Potts had an ethical obligation to inform his clients that he would not actively or passively assist in their fraudulent conduct. As a result, the Commission determined that clear and convincing evidence supported the finding that Potts had failed to fulfill this ethical obligation, a violation of Rule 1.2(d), M.R.P.C. The Commission also determined that the duty of candor toward the tribunal under Rule 3.3(a)(2), M.R.P.C., superseded Potts's duty of confidentiality under Rule 1.6, M.R.P.C. Finally, the Commission determined that Potts violated his duty of candor toward the tribunal when he failed to disclose material facts to the district court. The Commission recommended that Potts be censured publicly, be suspended from the practice of law for a period of thirty days, and be required to pay the costs of the disciplinary proceedings. Potts objects.\\nSTANDARD OF REVIEW\\n\\u00b631 This Court \\\"possesses original and exclusive jurisdiction and responsibility under Article VII, Section 2(3) of the 1972 Montana Constitution and the provisions of Chapter 61, Title 37, Montana Code Annotated, in addition to its inherent jurisdiction, in all matters involving admission of persons to practice law in the State of Montana, and the conduct and disciplining of such persons.\\\" See Introduction, Montana Rules for Lawyer Disciplinary Enforcement (MRLDE). We created the Commission in 1965 to act under the aegis of this Court for the purpose of receiving, investigating, and reporting on allegations of misconduct of lawyers in the State of Montana. Matter of Goldman, 179 Mont. 526, 529, 588 P.2d 964, 966 (1978).\\n\\u00b632 As a result, our review of the Commission's decisions differs from the scope of review applicable in an appeal of a decision by an agency-selected hearings examiner, wherein such factual findings are difficult to overturn. Goldstein v. Commission on Practice, 2000 MT 8, \\u00b6 30, 297 Mont. 493, \\u00b6 30, 995 P.2d 923, \\u00b6 30. Instead, we review de novo the Commission's findings of fact, conclusions of law, and recommendations. Goldstein, \\u00b6 30. Our duty includes weighing the evidence upon which the Commission's findings rest. Goldman, 179 Mont. at 545, 588 P.2d at 974. Even in light of our duty to weigh the evidence, we remain reluctant to reverse the decision of the Commission when its findings rest on testimonial evidence. We recognize that the Commission stands in a better position to evaluate conflicting statements after observing the character of the witnesses and their statements. Goldman, 179 Mont. at 545, 588 P.2d at 975.\\nDISCUSSION\\n\\u00b633 Whether Rule 1.6, M.R.P. C., required Potts to maintain his clients' confidences to the exclusion of being candid with opposing counsel and candid with the tribunal.\\n\\u00b634 Potts argues that Rule 1.6, M.R.P.C., prevented him from disclosing his clients' allegedly fraudulent conduct to anyone, including the court. Rule 1.6, M.R.P.C., prohibits a lawyer from revealing \\\"information relating to representation of a client unless the client consents after consultation .\\\" Potts contends that his clients never consented to revealing such information. Potts further points out that Rule 1.6, M.R.P.C., sets out a few exceptions to the duty of confidentiality, but provides no exception for reporting or disclosing client fraud. Potts contends that the Commission erred by failing to consider the duty of confidentiality under Rule 1.6, M.R.P.C., in its analysis of Rule 1.2(d), M.R.P.C., in which the Commission concluded that Potts had assisted in client fraud.\\n\\u00b635 Rule 3.3(a)(2) sets forth the duty of candor toward the tribunal and prohibits a lawyer from failing \\\"to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.\\\" Once Potts made representations to the court in the signed stipulation, the duty of candor to the tribunal as stated in Rule 3.3(a)(2), M.R.P.C., trumped any duty of confidentiality that he owed to his clients. See State Bar of Montana Advisory Ethics Opinion 87-0326. Regardless of the duty of confidentiality as stated in Rule 1.6, M.R.P.C., Potts had an affirmative duty to be truthful in his statements to the court as mandated by Rule 3.3(a)(2), M.R.P.C.\\n\\u00b636 Alternatively, Rule 1.6, M.R.P.C., may have absolved Potts from disclosing any information relating to the representation of his clients even if they had engaged in fraudulent conduct. Under Rule 1.6(b)(1), M.R.P.C., a lawyer may disclose information relating to client representation only if the client consents to a disclosure or to prevent a client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm. The rule provides no exception for disclosing fraudulent conduct of a client to prevent, rectify, or mitigate fraud. Potts could not have disclosed his clients' confidences under Rule 1.6, M.R.P.C.\\n\\u00b637 Rule 1.6, M.R.P.C., does not stand alone, however, and thus our analysis does not end here. Ride 1.2(d), M.R.P.C., prohibits the lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent. Under certain circumstances, a lawyer's nondisclosure of a material fact can be taken too far even in light of the duty of confidentiality. Nondisclosure of client information \\\"can amount to a misrepresentation in some circumstances and can also have the effect of assisting a criminal or fraudulent act by a client, thus implicating the lawyer in the client's wrongdoing.\\\" ABA Center for Professional Responsibility, A Legislative History of the Model Rules of Professional Conduct 215 (1999). Under Rule 4.1, M.R.P.C., such nondisclosures can be revealed only to \\\"a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.\\\" (Emphasis added).\\n\\u00b638 Here, Rule 1.6, M.R.P.C., prevented Potts from disclosing his clients' information because his clients had not consented to a disclosure and his clients' conduct was not likely to result in imminent death or substantial bodily harm so as to warrant disclosure outside of their consent. Potts cannot use the duty of confidentiality, however, to shield himself from other potential misconduct. Potts, while maintaining his duty of confidentiality, also must comply with the other rules of professional conduct, including Rule 1.2(d), M.R.P.C., the rule that prohibits a lawyer from assisting a client in fraud.\\n\\u00b639 Rule 1.16, M.R.P.C., requires a lawyer to withdraw from representing a client if such representation will result in violation of the rules of professional conduct. Potts should have withdrawn from representation as soon as his clients' demands for nondisclosure of information propelled his services into the realm of assisting in his clients' fraudulent behavior. We concede that Rule 1.6, M.R.P.C., prevented Potts from disclosing the information against his clients' wishes. We will not endorse legitimate nondisclosure under Rule 1.6, M.R.P.C., however, as an excuse for noncompliance with Rule 1.2(d), M.R.P.C. The Commission, therefore, did not err by failing to consider the duty of confidentiality in its analysis of whether Potts violated Rule 1.2(d), and assisted in his clients' fraudulent conduct.\\n\\u00b640 Whether Potts violated Rule 1.2(d), M.R.P.C.\\n\\u00b641 Rule 1.2(d), M.R.P.C., prohibits a lawyer from counseling \\\"a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent .\\\" Potts argues first that his clients did not commit any underlying fraud so he cannot be accused of having assisted in fraudulent conduct. Second, Potts contends that the memorandum was ambiguous, as determined by our decision in Stukey I, \\u00b6 75, and thus cannot serve as a basis for determining fraud. Potts next suggests that he did not know at the time of the events that his clients' conduct was fraudulent. Finally, Potts asserts that his failure to apprise the other parties of relevant information falls outside the definition of fraud.\\n\\u00b642 Potts argues that the Commission's finding that his clients engaged in fraud rests on the erroneous conclusion that the joint tenancy accounts were included in Ernestine's estate. Potts contends that his clients, Evon and Tyson, never engaged in fraudulent conduct because the joint tenancy accounts passed as a matter of law to Evon upon Ernestine's death and as a result could not have been included as a part of the settlement basis.\\n\\u00b643 The 2001 M.R.P.C. fails to provide a specific definition of \\\"fraud\\\" or \\\"fraudulent.\\\" The allegedly fraudulent conduct in this case surrounds Evon's representations of the basis of the settlement value. Settlement agreements are contracts and subject to the provisions of contract law. Dambrowski v. Champion Intern. Corp., 2003 MT 233, \\u00b6 9, 317 Mont. 218, \\u00b6 9, 76 P.3d 1080, \\u00b6 9. Under contract principles, a party's conduct rises to the level of actual fraud when he acts with the intent to deceive another to induce him to enter into the contract. See \\u00a7 28-2-405, MCA.\\n\\u00b644 A party commits actual fraud by making a \\\"suggestion as a fact that which is not true by one who does not believe it to be true.\\\" Section 28-2-405, MCA. Actual fraud also occurs when a party suppresses \\\"that which is true by one having knowledge or belief of the fact,\\\" or by making a promise without any intention of performing it, or through \\\"any other act fitted to deceive.\\\" Section 28-2-405, MCA. Conduct constituting constructive fraud consists of \\\"any breach of duty, which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice .\\\" Section 28-2-406, MCA.\\n\\u00b645 Potts's clients refused to waive confidential mediation communications, thus we do not have the privilege of reviewing Potts's version of what happened in mediation. We are convinced by testimony of others and evidence presented at the disciplinary hearing before the Commission that Potts's clients, Evon and Tyson, engaged in fraudulent conduct during their procurement of the settlement agreement.\\n\\u00b646 The evidence shows that Evon represented in three inventories to the courts that $1.2 million constituted the total value of Ernestine's estate. These inventories made no distinction between probate and nonprobate assets, such as the joint tenancy accounts. By the time the parties met for mediation, Evon had taken a fraction of the joint tenancy accounts from the $1.2 million estate and was working to secure the rest.\\n\\u00b647 By all accounts in the record, Evon never disclosed to the other parties at the mediation her intent to take part of the $1.2 million estate. Evon suggested as fact, or at the very least by her silence perpetuated, the untrue statement that the settlement basis constituted the full $1.2 million value of the estate. Evon knew, however, at the time of the mediation that the $1.2 million value did not represent an accurate settlement basis because she already had taken a fraction of that money and had intended to secure several hundred thousand dollars in the days after the mediation. Evon's misrepresentation of the value of the estate fraudulently induced the other parties to enter into the settlement agreement. The settlement agreement benefitted Evon in that it included a stipulation to dismiss the conservatorship action against her and the potential liability associated with it.\\n\\u00b648 Tyson also engaged in fraud by suppressing the truth that the settlement value could not have included the full $1.2 million. Potts testified that Tyson informed him months before the mediation that Evon had intended to take the joint tenancy accounts from the estate. After mediation, Tremper informed Potts and his clients, including Tyson, that Evon's final inventory comprised the basis of the settlement. Tremper requested that Potts notify him immediately if there had been a different understanding of the settlement. Tyson instructed Potts not to respond. Tyson's suppression of this relevant fact caused Tremper to believe that the settlement basis included the joint tenancy accounts.\\n\\u00b649 We now turn to Potts's argument that we deemed the memorandum to be ambiguous in Stukey I, \\u00b6 75, thus it cannot serve as a basis for finding fraud. We concluded that the term \\\"remainder,\\\" as stated in the memorandum, was ambiguous and capable of two meanings in that it may or may not have included the joint tenancy accounts in the estate value. Stukey I, \\u00b6 75. We also determined, however, that the \\\"bulk of the evidence\\\" showed that the negotiating parties had relied on Evon's final inventory, making no distinction between probate and nonprobate assets, for the basis of the settlement value. Stukey I, \\u00b6 76.\\n\\u00b650 We recognize that the memorandum emerged after two long days of negotiations and the weariness of the parties likely contributed to its somewhat skeletal outline. Nonetheless the parties allowed material ambiguities to remain in the memorandum. The memorandum refers to the division of \\\"the Estate,\\\" but makes no mention of the particular dollar value of \\\"the Estate.\\\" Tremper testified that he believed that \\\"the Estate\\\" and the settlement basis included both probate and nonprobate assets to satisfy the will contest and damages sought for Evon's alleged breach of fiduciary duties in relation to the conservatorship proceedings. The memorandum hints at Tremper's belief by dismissing both the will contest and conservatorship dispute, but fails to state the inclusion of the joint tenancy accounts. These significant ambiguities lead us to agree with Potts that the memorandum cannot provide the sole basis for finding that Potts violated Rules 1.2(d) and 3.3(a)(2), M.R.P.C.\\n\\u00b651 The memorandum constitutes only a first step, however, as most of Potts's alleged misconduct occurred after the parties had executed the memorandum. Tremper first brought the memorandum's ambiguity to light in his telephone conversation with Potts. Tremper immediately followed up with a letter to Potts on November 20, 2001, asking for confirmation that the settlement amount included the $1.2 million total value relied on by the parties.\\n\\u00b652 Potts's client, Tyson, could have been forthcoming with the truth-that Evon already had claimed part of the funds from the joint tenancy accounts and soon would grab the rest. Instead, Tyson, with the help of Potts's services as a lawyer, encouraged the ambiguity by failing to respond to Tremper's inquiry. Potts maintains he had no duty to correct opposing counsel's error. We disagree.\\n\\u00b653 Rule 4.1, M.R.P.C., prohibits Potts from knowingly making a false statement of fact to a third party. Comment 1, Rule 4.1, ABA Model R. Prof. Conduct, provides that a lawyer, while having no affirmative duty to inform an opposing party of relevant facts, must be truthful when dealing with others on a client's behalf. Comment 1 also warns that \\\"a misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false . or by omissions that are the equivalent of affirmative false statements.\\\" Statements of price estimates or value during negotiations are not considered material facts requiring disclosure unless nondisclosure would otherwise constitute fraud. See Comment 2, Rule 4.1, ABA Model R. Prof. Conduct.\\n\\u00b654 In light of the guidance provided by the comments to the ABA Model Rules, we find the holding in State ex rel. Neb. State Bar v. Addison, 412 N.W.2d 855 (Neb. 1987), persuasive in this matter. In Addison, the Nebraska Supreme Court determined that a lawyer engaged or assisted in fraud and knowingly made a false statement of fact when he negotiated a release of a hospital's lien based on the hospital's mistaken belief that two insurance policies were in place instead of three. Addison, 412 N.W.2d at 856. The Addison court suspended the lawyer from practice for the period of six months based on the referee's findings that the lawyer's omission in failing to correct the hospital's false impression constituted a violation of the tenets of professional conduct. Addison, 412 N.W.2d at 856.\\n\\u00b655 Similarly, Potts knew that the parties held different understandings as to the settlement basis and he failed to correct the mistake. Tremper's letter raised the question of whether $1.2 million represented the total value of the estate. The letter specifically requested Potts to respond if his clients had a different understanding as to the basis of the settlement. Tyson instructed Potts not to respond even though Tyson had told Potts months before that Evon intended to take the joint tenancy accounts outside of any settlement. Potts's testimony that he advised Tyson that the problem would have to be \\\"cleared up\\\" at some point shows that he knew the settlement basis was at issue. Potts's omission constituted a misrepresentation that assisted in his clients' fraudulent purpose of taking the joint tenancy accounts outside of the settlement agreement, a violation of Rule 1.2(d), M.R.P.C. Potts could have avoided this situation by withdrawing from representation under Rule 1.16, M.R.P.C.\\n\\u00b656 Potts next argues that he did not know at the time of the events in question that his clients' conduct was fraudulent, and, therefore, he cannot be accused of violating Rule 1.2(d), M.R.P.C. Evon testified at a February 3,2003, hearing that her lawyer knew before the mediation that she would claim the joint tenancy accounts outside of any settlement agreement. The Commission admitted Evon's testimony on this point at the disciplinary proceedings, and Potts does not raise the issue on appeal.\\n\\u00b657 Neither Potts nor his clients, Evon and Tyson, disclosed Evon's plans concerning the joint tenancy accounts at the November mediation. They offered no correction to the parties who had negotiated the settlement based on the $1.2 million total estate value that Evon had reported to the court in her final inventory in the conservatorship proceedings. Evon already had claimed a small portion of the money from the joint tenancy accounts by that time and was working on obtaining the remainder of the $270,000 in the week following the settlement. The evidence supports the Commission's finding that Potts knew of Evon's fraudulent conduct in misrepresenting to the other parties and the court her intent to secure the joint tenancy accounts outside the settlement.\\n\\u00b658 Finally, Potts argues that his conduct did not constitute fraud under the definition provided in the April 1,2004, amendments to the M.R.P.C. We note first that the ODC never accused Potts of fraud. The ODC accused Potts of assisting his clients in engaging in fraudulent conduct. Second, we note that the M.R.P.C., as they existed in 2001, at the time of the conduct in question, provided no definition of fraud or fraudulent conduct. As stated in \\u00b6 47-48, we conclude, however, that Potts's clients, Evon and Tyson, knowingly misrepresented the truth in order to prompt the other parties to the settlement to act to their detriment. In particular, Tyson directed Potts not to respond to Tremper's letter that had asked for confirmation on the settlement amount. Potts did more than acquiesce to his client's demands of silence in the face of Tremper's inquiries. Potts assisted in his clients' fraud by drafting, circulating, and filing with the court a stipulation, stating that all disputes had been settled, when he knew that the other parties had relied on Evon's misrepresentation of the settlement basis in reaching the agreement. We agree with the Commission's conclusion that Potts violated Rule 1.2(d), M.R.P.C.\\n\\u00b659 Whether Potts violated Rule 3.3(a)(2), M.R.P.C.\\n\\u00b660 Potts argues that he could not have violated Rule 3.3(a)(2), M.R.P.C., because his clients were not engaging in continuing fraudulent acts and Potts was not assisting in such fraudulent acts. Potts further argues that he did not know at the time that his clients' conduct was fraudulent.\\n\\u00b661 Rule 3.3(a)(2), M.R.P.C., sets forth the duty of candor toward the tribunal and prohibits a lawyer from knowingly failing \\\"to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.\\\" As stated in \\u00b6 47-48, Potts's clients engaged in fraudulent conduct that intended to deceive the other parties as to the scope of the settlement. Potts assisted in their deception.\\n\\u00b662 Potts also violated the duty of candor toward the tribunal when he failed to disclose to the court the material fact that, contrary to what the parties believed, Evon planned on taking the joint tenancy accounts. Tremper's letter notified Potts that the settlement basis was at issue. Potts acknowledged the fact that the value of the settlement would have to be cleared up \\\"sooner or later.\\\" At his client's request, Potts said nothing to Tremper about the potential misunderstanding. Knowing that this ambiguity existed in the memorandum, Potts nevertheless proceeded to misrepresent in the signed stipulation to the court that \\\"all\\\" disputes had been settled, when in fact they were just beginning to brew under the surface. The stipulation caused the parties to forge ahead with the settlement, even though Potts and his clients knew that no agreement had been reached on the settlement amount.\\n\\u00b663 Tremper's letter put Potts on notice that the parties were relying on Evon's $1.2 million final inventory as the value of the settlement when they signed the stipulation drafted by Potts and filed it with the district court. Potts did not report to the district court in the stipulation that Evon had taken some, and planned to take the rest, of the joint tenancy accounts outside the $1.2 million settlement. Potts had a duty of truthfulness in filing or representing any matter to the court. Potts's failure to do so violated Rule 3.3(a)(2), M.R.P.C.\\n\\u00b664 Whether the Commission improperly excluded Potts's proposed expert witness testimony.\\n\\u00b665 Potts argues that he should have been allowed to present expert witness testimony at his disciplinary hearing on the interplay between the duty of confidentiality and the duty of candor as stated in the M.R.P.C. The Montana Rules of Evidence apply to formal disciplinary proceedings before the Commission. Rule 12(C)(2), MRLDE. Under Rule 702, M. R. Evid., a party may offer expert testimony to assist the trier of fact in understanding the evidence or determining a fact in issue. Expert opinions that state a legal conclusion or apply the law to the facts are inadmissible. Perdue v. Gagnon Farms, Inc., 2003 MT 47, \\u00b6 28, 314 Mont. 303, \\u00b6 28, 65 P.3d 570, \\u00b6 28. Potts disclosed to the Commission that the expert witness would opine that Potts did not violate the Rules of Professional Conduct. The Commission properly excluded Potts's expert testimony as improperly offering an opinion on a legal question. Perdue, \\u00b6 28.\\n\\u00b666 Whether the Commission improperly excluded a portion of Potts's testimony as inadmissible hearsay.\\n\\u00b667 Potts argues that the Commission improperly excluded as hearsay his testimony regarding what Tremper had told him concerning the joint tenancy accounts. Potts testified that Tremper stated, three days before the parties signed the stipulation, that Tremper was \\\"going after\\\" the joint tenancy accounts if the case did not settle immediately. The Commission struck this statement from Potts's testimony on grounds that it constituted inadmissible hearsay. Potts argues that the statement does not qualify as hearsay because he did not offer the comment to prove the truth of the matter asserted-that Tremper would go after the joint tenancy accounts. He contends that he offered the statement instead to show Tremper's knowledge that the joint tenancy accounts existed and that the parties intended to exclude the accounts from the settlement.\\n\\u00b668 Hearsay is \\\"a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\\\" Rule 801(c), M. R. Evid. Hearsay is inadmissible unless the Montana Rules of Evidence provide an exception. Rule 802, M. R. Evid. A statement offered to show the effect on the witness, but not for the truth of the matter asserted, falls outside of the definition of hearsay. Vincelette v. Metropolitan Life Ins., Co., 1998 MT 259, \\u00b6 19, 291 Mont. 261, \\u00b6 19, 968 P.2d 275, \\u00b6 19.\\n\\u00b669 Potts appears to have offered the statement to demonstrate Tremper's alleged knowledge that the parties had intended to exclude the joint tenancy accounts from the settlement, and not for the truth of the matter asserted that Tremper would go after the joint tenancy accounts. Potts offered Tremper's statement to explain its effect on him, showing why he believed the joint tenancy accounts were separate from the settlement. For that reason, we conclude that the statement falls outside the definition of hearsay and that the Commission should have allowed it in evidence at Potts's disciplinary hearing. Vincelette, \\u00b6 19.\\n\\u00b670 We also conclude, however, that improperly excluding the statement does not warrant reversal of the Commission's decision. An error must cause substantial prejudice to warrant reversal. See In re A.J.E., 2006 MT 41, \\u00b6 28, 331 Mont. 198, \\u00b6 28, 130 P.3d 612, \\u00b6 28. The Commission's error in excluding the statement did not substantially prejudice Potts.\\n\\u00b671 Tremper admitted on direct examination that he knew the joint tenancy accounts existed, but he believed them to be included in the settlement to satisfy Evon's alleged self dealing in the conservatorship proceedings. Tremper stated this belief in a letter to Potts dated November 20, 2001, that the Commission admitted into evidence at Potts's disciplinary hearing. Potts admitted that he did not respond to the letter. The nonresponse reasonably caused Tremper to believe that the parties intended to include the joint tenancy accounts in the settlement.\\n\\u00b672 Tremper's knowledge of the joint tenancy accounts before the settlement conference does not change the fact that Potts later made a false representation to the court in the stipulation. The stipulation wrongfully reported to the court that the parties had resolved all of the disputes surrounding the will contest and conservatorship. Tremper's letter informed Potts as to Tremper's belief that the settlement included the joint tenancy accounts. Potts ignored Tremper's inquiry. He proceeded to represent falsely in the stipulation to the court that the parties had resolved all the disputes surrounding the will contest and conservatorship.\\n\\u00b673 Whether the Commission's proposed sanctions are appropriate.\\n\\u00b674 Potts urges the Court to consider the mitigating factors as stated in the 1991 American Bar Association Standards for Imposing Lawyer Sanctions when determining the appropriateness of his discipline. Under ABA \\u00a7 9.32, mitigating factors include: 1) the absence of prior discipline; 2) absence of a dishonest or selfish motive; 3) full and free disclosure and cooperative attitude toward the proceedings; and 4) character and reputation.\\n\\u00b675 Potts contends that he has satisfied all the mitigating factors, including maintaining good character and reputation as an attorney since becoming a member of the State Bar of Montana in 1986. He argues that this factor renders a public censure unwarranted. The Commission responds that Potts's transgression includes aggravating factors, such as dishonesty, that warrant the imposition of a 30-day suspension from the practice of law or even harsher discipline.\\n\\u00b676 We consider the following factors in determining the appropriate discipline for lawyer misconduct: 1) the duty violated; 2) the lawyer's mental state; 3) the actual or potential injury caused by the lawyer's misconduct; and 4) the existence of aggravating or mitigating factors. Rule 9(B), MRLDE. We conclude that public censure is appropriate in light of Potts's misconduct in this matter and other mitigating circumstances.\\n\\u00b677 The evidence clearly demonstrates that Potts assisted his clients in their fraudulent conduct by misrepresenting the scope of the settlement to the other parties, a violation of Rule 1.2(d), M.R.P.C. The evidence also supports the conclusion that Potts misrepresented to the district court that all disputes had been settled when in fact he knew that the settlement agreement lacked the requisite meeting of the minds to be enforceable, a violation of Rule 3.3(a)(2), M.R.P.C. Potts's misconduct resulted in considerable injury to the parties, requiring one district court proceeding and two appeals to this Court to determine the meaning and scope of the memorandum and stipulation.\\n\\u00b678 The first sentence of the preamble to the M.R.P.C. (2005) states that a lawyer must \\\"pursue the truth.\\\" The duties of candor toward the tribunal under Rule 3.3(a), M.R.P.C., and the prohibition against assisting in a client's fraudulent conduct under Rule 1.2(d), M.R.P.C., guide the lawyer in this quest for truth. In breaching this fundamental tenet, Potts shunned his most basic responsibility owed to the profession.\\n\\u00b679 This level of misconduct ordinarily would draw punishment in the form of suspension from the practice of law or disbarment. Mitigating factors warrant a lighter penalty in this case. First, the evidence shows that the parties entered into a vague settlement agreement that failed to define the basis and scope of the agreement. Potts certainly took advantage of this rushed agreement for his clients' benefit and against the duty of truthfulness incumbent upon a lawyer. Potts should not carry all the blame, however, for the extra litigation resulting from the vague agreement. Though we do not condone Potts's conduct in this matter, we recognize that the other parties could have resolved the question of the basis and scope of the settlement by specifically assigning a dollar amount to the estate value in the memorandum. Next, Potts benefits from the fact that the district court limited the actual damage caused by his misconduct. The district court determined that Potts's clients, Evon, had no right to the joint tenancy accounts in light of the parties' reliance on the $1.2 million total estate value. As a result, the actual damages occasioned by Potts's misconduct take the form of increased litigation costs rather than the hundreds of thousands of dollars of which the parties to the settlement agreement would have been deprived. Finally, the absence of any prior discipline against Potts and his character and good reputation to this point militate in his favor.\\n\\u00b680 In light of these mitigating factors, especially Potts's history of compliance with the rules of professional conduct and his character and good reputation to this point, we determine that the Commission's recommendation to suspend Potts from practice is unwarranted. We conclude that a public censure will apprise Potts sufficiently of the gravity of his misconduct under the given circumstances. Moreover, a public censure will alert the public that the Court will not tolerate such misconduct from a lawyer. We also order Potts to pay the costs of the disciplinary proceedings before the Commission.\\nORDER\\nTHEREFORE IT IS ORDERED:\\n\\u00b681 1. Steven T. Potts is ordered to appear before the Supreme Court of the State of Montana on May 2, 2007, at 1:30 p.m., for the administration of a public censure;\\n\\u00b682 2. Steven T. Potts shall pay, or make arrangements to pay, the costs of the proceedings before the Commission. Pursuant to Rule 9(A)(8), MRLDE, Disciplinary Counsel is directed to assemble and serve upon Steven T. Potts an itemized list of the costs and expenses incurred in this matter. Steven T. Potts shall then have 10 days thereafter to file written objections and, if he desires, to request a hearing before an Adjudicatory Panel;\\n\\u00b683 3. It is further ordered that Potts's Motion to Strike Portions of ODC's Brief, filed with this Court on August 10, 2006, is denied;\\n\\u00b684 4. The Clerk of this Court is directed to mail copies of this Order to Steven T. Potts by certified mail, return receipt requested, and by ordinary mail to Steven T. Potts's attorney, the Chairman and the Secretary of the Commission on Practice, the Clerk of the Federal District Court for the District of Montana, the Clerk of the Circuit Court of Appeals of the Ninth Circuit, the Office of Disciplinary Counsel, the Executive Director of the State Bar of Montana, and by electronic transmission to all Clerks of the District Courts of the State of Montana and to all District Judges.\\nDATED this 22nd day of March 2007.\\n/S/BRIAN MORRIS\\n/S/ JOHN WARNER\\n/S/ DISTRICT JUDGE JEFFREY M. SHERLOCK, sitting for JUSTICE LEAPHART\\n/S/ DISTRICT JUDGE KURT KRUEGER, sitting for JUSTICE NELSON\"}"

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+"{\"id\": \"396090\", \"name\": \"SAVAGE EDUCATION ASSOCIATION affiliated with the Montana Education Assoc., Plaintiff and Respondent, v. TRUSTEES OF RICHLAND COUNTY ELEMENTARY DISTRICT #7 and High School Dist. #2, Defendants and Appellants\", \"name_abbreviation\": \"Savage Education Ass'n v. Trustees of Richland County Elementary District #7\", \"decision_date\": \"1984-12-28\", \"docket_number\": \"No. 84-294\", \"first_page\": \"289\", \"last_page\": \"300\", \"citations\": \"214 Mont. 289\", \"volume\": \"214\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T20:36:18.571247+00:00\", \"provenance\": \"CAP\", \"judges\": \"MR. CHIEF JUSTICE HASWELL and MR. JUSTICES SHEA and HARRISON concur.\", \"parties\": \"SAVAGE EDUCATION ASSOCIATION affiliated with the Montana Education Assoc., Plaintiff and Respondent, v. TRUSTEES OF RICHLAND COUNTY ELEMENTARY DISTRICT #7 and High School Dist. #2, Defendants and Appellants.\", \"head_matter\": \"SAVAGE EDUCATION ASSOCIATION affiliated with the Montana Education Assoc., Plaintiff and Respondent, v. TRUSTEES OF RICHLAND COUNTY ELEMENTARY DISTRICT #7 and High School Dist. #2, Defendants and Appellants.\\nNo. 84-294.\\nSubmitted on Briefs Oct. 18, 1984.\\nDecided Dec. 28, 1984.\\n692 P.2d 1237.\\nR.W. Heineman, Wibaux, for defendants and appellants.\\nHilley & Loring; Emilie Loring, Great Falls, for plaintiff and respondent.\", \"word_count\": \"2881\", \"char_count\": \"18302\", \"text\": \"MR. JUSTICE SHEEHY\\ndelivered the Opinion of the Court.\\nThis is an appeal from an order of the Seventh Judicial District, Richland County by the Trustees of Richland County Elementary District No. 7 and High School District No. 2. The order denied the Trustees' motion to modify, vacate or correct an arbitration award. The order of the District Court is affirmed.\\nThis action has had a long procedural history; this is the second appeal to this Court by the parties involved in this dispute. In March 1979, Dorothy Tone and Connie Undem, both nontenured teachers in Savage, Montana, were notified that their contracts were not being renewed. Both women filed grievances as provided in their collective bargaining agreement. The Trustees held a hearing on June 29, 1979, denied the grievances, and refused to submit them to arbitration.\\nThe Savage Education Association (the Association) filed a complaint charging unfair labor practices with the Montana Board of Personnel Appeals claiming the Trustees were violating section 39-31-401(5), MCA, by refusing to bargain in good faith. The hearing examiner recommended the Trustees implement the arbitration proceedings to resolve the grievance. The Trustees appealed to the Board of Personnel Appeals.\\nThe Board determined that the collective bargaining agreement provided for arbitration of grievances. A grievance between the Association and the Trustees existed concerning whether the procedure for terminating nontenured teachers contained in the collective bargaining agreement had been followed. The Board ordered arbitration to determine whether the termination procedure was followed in the case of Undem and Tone.\\nThe Trustees appealed to the District Court which reversed the Board of Personnel Appeal's order to arbitrate. The Association appealed to this Court. In Savage v. Savage (Mont. 1982), [199 Mont. 39,] 647 P.2d 833, 39 St.Rep. 1192, (Savage I), we reversed the District Court and reinstated the decision of Board of Personnel Appeals. We held that the issue of whether the grievance procedure had been followed was a matter for arbitration and we ordered the parties to arbitrate. The arbitrator correctly determined the question before him was whether the Trustees complied with the procedural requirements of Article XIII of the collective bargaining agreement entitled, Employment Status of Teachers. The article requires the Trustees to evaluate the teachers and prepare written findings. Evaluators must also point out specific weaknesses in the teachers' performance and assist them in overcoming such deficiencies. The article also requires that notice of termination or nonrenewal, be given to a nontenured teacher before April 15.\\nThe arbitrator found that the Trustees failed to comply with the terms of Article XIII by neglecting to evaluate Ms. Tone and notify her of any perceived deficiencies in her teaching performance. The arbitrator also found that the Trustees violated Article XIII section (1)(1) of the agreement by not taking remedial steps to help teacher Undem as required by Article XII of the agreement. The arbitrator determined the remedy for these contract violations was to offer full reinstatement of Connie Undem and Dorothy Tone to their former or comparable positions, together with back pay less all interim earnings from the effective date of termination to the date of reinstatement or refusal of reinstatement and the clearing of the grievants' official personnel files at the School District of notices of termination. The Trustees refused to comply with the arbitrator's find ings. When respondents sought to enforce the arbitrator's award in District Court, the Trustees moved to modify and vacate the award. The motion was denied and the Trustees appealed.\\nThe Trustees contend that the arbitrator exceeded his authority under the contract; that the School District lacked the statutory and constitutional authority to waive certain rights through negotiation and arbitration; that the arbitrator erred in construing the contract; and that the arbitrator exceeded his power in shaping the above remedy. We find the Trustees' arguments to be without merit and consequently affirm the District Court.\\nIn Savage I, we held that under the terms of the collective bargaining agreement, the question of whether or not the Trustees had complied with procedural requirements in Article XIII was subject to arbitration. The agreement called for binding arbitration after exhaustion of grievance procedures. Failure to submit to arbitration was an unfair labor practice as defined in section 39-31-401, MCA.\\nThe arbitrator followed the directive of this Court in Savage I. For the Trustees to argue now that they did not agree to arbitrate this issue and that they are powerless to do so is an attempt to raise issues foreclosed by Savage I.\\nThe Trustees argue that section 20-3-324, MCA, and section 39-31-303, MCA, give them sole direction in hiring and firing teachers.\\n\\\"Section 20-3-324, MCA. Powers and duties. As prescribed elsewhere in this title, the trustees of each district shall have the power and it shall be their duty to perform the following duties or acts:\\n\\\"(1) employ or dismiss a teacher . as the board may deem necessary, accepting or rejecting such recommendation as the trustees shall in their sole discretion determine, in accordance with the provisions of Tile 20, Chapter 4;\\\"\\n\\\"Section 39-31-303, MCA. Management rights of public employers. Public employees and their representatives shall recognize the prerogatives of public employers to operate and manage their affairs in such areas as, but not limited to:\\n\\\"(2) hire, promote, transfer, assign, and retain employees;\\nWe recognize the broad managerial power conferred on the School District by statute.\\nMontana law specifically gives public employees the right to bargain collectively. Section 39-31-201, MCA. Statutes which govern the bargaining process between public employers and their employees are found in Chapter 31, Part 3 of Title 39 of the Montana Code Annotated. Included in this Part is section 39-31-303, MCA, which sets forth the management rights of public employers including the right to hire and fire. However, section 39-31-305, MCA, imposes a duty upon public employers to bargain collectively in good faith with its employees:\\n\\\"Section 39-31-305. Duty to bargain collectively \\u2014 good faith.\\n\\\"(1) The public employer and the exclusive representative, through appropriate officials or their representatives, shall have the authority and the duty to bargain collectively. This duty extends to the obligation to bargain collectively in good faith as set forth in subsection (2) of this section.\\n\\\"(2) For the purpose of this chapter, to bargain collectively is the performance of the mutual obligations of the public employer or his designated representatives and the representatives of the exclusive representative to meet at reasonable times and negotiate in good faith with respect to wages, hours, fringe benefits, and other conditions of employment or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached. Such obligation does not compel either party to agree to a proposal or require the making of a concession.\\\" (Emphasis added.)\\nSection 39-31-304, MCA, provides:\\n\\\"Section 39-31-304. Negotiable items for school districts. Nothing in this chapter shall require or allow boards of trustees of school districts to bargain collectively upon any matter other than matters specified in 39-31-305(2).\\\"\\nWe held in Savage I that the procedural guarantees contained in Article XIII of the collective bargaining agreement and the grievance procedure which culminated in arbitration were conditions of employment within the meaning of section 39-31-305, MCA. We hold that the School District has the constitutional and statutory authority to enter into the collective bargaining agreements and that the sections of the agreement at issue here were proper subjects of bargaining. We hold that the Trustees, having entered into the agreement in good faith, are bound by it.\\nThe Trustees contend that the arbitrator misinterpreted the contract and provided a remedy to Tone and Undem that was not within his power under the contract. When parties agree to binding arbitration the role of a court in reviewing the arbitrator's findings is a narrow one. The scope of review is governed by sections 27-5-301 and 27-5-302, MCA. They provide:\\n\\\"Section 27-5-301. When court may vacate award. The court or judge, on motion, may vacate the award upon any of the following grounds and may order a new hearing before the same arbitrators or not, in its or his discretion:\\n\\\"(1) It was procured by corruption or fraud.\\n\\\"(2) The arbitrators were guilty of misconduct or committed gross error in refusing, on cause shown, to postpone the hearing or in refusing to hear pertinent evidence or otherwise acted improperly in a manner by which the rights of the party were prejudiced.\\n- \\\"(3) The arbitrators exceed their powers in making the award, or they refused or improperly omitted to consider a part of the matters submitted to them.\\n\\\"(4) The award is indefinite or cannot be performed.\\\"\\n\\\"Section 27-5-302. When court may modify or correct award. The court or judge may, on motion, modify or correct the award where it appears that:\\n\\\"(1) there was a miscalculation in figures upon which it was made or that there is a mistake in the description of some persons or property therein;\\n\\\"(2) a part of the award is upon matters not submitted, which part can be separated from other parts and does not affect the decision on the matters submitted;\\n\\\"(3) the award, though imperfect in form, could have been amended if it had been a verdict, or the imperfection disregarded.\\\"\\nThe District Court found that there were no grounds under these statutes to vacate or modify the award. We agree.\\nIt would defeat the purpose and the intent of the parties to allow a party dissatisfied by the result of arbitration to litigate all the issues covered in the arbitration anew in court. This view is aptly reflected by the following quote from the United States Supreme Court:\\n\\\"The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator's judgment, when it was his judgment and all that it connotes that was bargained for.\\n\\\"The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. The processing of even frivolous claims may have therapeutic values of which those who are not a part of the plant environment may be quite unaware. United Steelworkers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1407.\\\"\\nThe arbitrator must act within the scope of the contract. In the instant case, the collective bargaining agreement did not set forth any specific remedy for breach of the procedural requirements contained in Article XIII. The Trustees contend the arbitrator did not have the power under the collective bargaining agreement to shape the remedy he provided. The Trustees contend that their statutory power to manage entitles them to prescribe a remedy. Such a position is untenable for it effectively leaves the grievants no remedy. If the remedy fashioned by the arbitrator has been rationally derived from the agreement it will be upheld on review. Kittery Teachers Association v. Kittery School Committee (Maine 1980), 413 A.2d 534.\\nIn this case we find reinstatement with back pay and the arbitrator's other remedies to be appropriate. The School District denied Tone and Undem the procedural rights that would have enabled them to save their jobs. Their jobs were lost and the remedy prescribed by the arbitrator compensated them for that loss. It is no answer for the Trustees to say that if they had complied with the bargained for procedures under Article XIII, they would have terminated the teachers anyway because they contend there is no substantive basis required under the contract or the law to terminate the teachers. It was the failure of the School District to follow the procedural steps affecting nontenured teachers as required by law that now prevents any consideration of substantive reasons for termination the School District may have had. It is a matter of failure of due process.\\nThe order of the District Court is affirmed and the case remanded to enforce the arbitrator's award.\\nAffirmed.\\nMR. CHIEF JUSTICE HASWELL and MR. JUSTICES SHEA and HARRISON concur.\"}"

mont/4158320.json

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+"{\"id\": \"4158320\", \"name\": \"IN THE MATTER OF: B.J.T.H. and B.H.T.H., Youths in Need of Care\", \"name_abbreviation\": \"In re B.J.T.H.\", \"decision_date\": \"2015-01-06\", \"docket_number\": \"No. DA 14-0165\", \"first_page\": \"14\", \"last_page\": \"21\", \"citations\": \"378 Mont. 14\", \"volume\": \"378\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T20:28:30.815803+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE McGRATH, JUSTICES COTTER, WHEAT and BAKER concur.\", \"parties\": \"IN THE MATTER OF: B.J.T.H. and B.H.T.H., Youths in Need of Care.\", \"head_matter\": \"IN THE MATTER OF: B.J.T.H. and B.H.T.H., Youths in Need of Care.\\nNo. DA 14-0165.\\nSubmitted on Briefs December 3, 2014.\\nDecided January 6, 2015.\\n2015 MT 6.\\n378 Mont. 14.\\n340 P.3d 557.\\nFor Appellant: Wade ZolynsM, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena.\\nFor Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena; Ben H. Krakowka, Deer Lodge County Attorney, Anaconda.\", \"word_count\": \"2870\", \"char_count\": \"18155\", \"text\": \"JUSTICE McKINNON\\ndelivered the Opinion of the Court.\\n\\u00b61 S.H.V.H. (Mother) appeals from the Judgment entered by the Third Judicial District Court, Anaconda-Deer Lodge County, finding that the Department of Public Health and Human Services (DPHHS) complied with the counseling provisions of \\u00a7 42-2-409, MCA. We affirm.\\n\\u00b62 Mother presents the following issues for review:\\n1. Was there substantial evidence to support the District Court's finding that, prior to signing an affidavit relinquishing her parental rights, Mother received counseling required by \\u00a7 42-2-409(1) and (2), MCA?\\n2. Did the counselor produce a written report in compliance with the provisions of\\u00a7 42-2-409(4), MCA?\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b63 Mother is the birth mother of twins, B.H.T.H. and B.J.T.H., born in July of2009. On September 12,2012, the District Court terminated Mother's parental rights to her children finding that Mother had executed a knowing and voluntary relinquishment of her rights after receiving counseling. Mother appealed and raised the following issues: (1) Did the District Court err in denying Mother's request to discharge her court-appointed counsel; (2) Did the District Court err in accepting Mother's relinquishment; and (3) Did the District Court err in denying Mother's request to modify the treatment plan and stay the termination hearing. In re B.J.T.H., \\u00b6 2-5. This Court affirmed on issues one and three, B.J.T.H., \\u00b6 17, 22, but remanded the matter to the District Court for a determination of whether Mother had received the required relinquishment counseling or whether good cause existed to waive the requirement, B.J.T.H., \\u00b6 20.\\n\\u00b64 On January 22,2014, the District Court conducted an evidentiary hearing to determine whether the counseling received by Mother satisfied the provisions of \\u00a7 42-2-409(1) and (2), MCA. The State presented the testimony of Christy Ruckwardt, a permanency specialist with DPHHS, who provided counseling to Mother. Ruckwardt explained that relinquishment counseling is referred to as options counseling because she reviews with the birth parent the different options available regarding his or her child. Ruckwardt goes over how the parent is doing in his or her treatment plan, necessary services that must be in place before reunification, and long-term placement options, such as guardianship and adoption, if reunification is not an option. It is Ruckwardt's practice to provide the parent with a packet of documents that help explain the parent's options. Ruckwardt goes through these documents with the parent and has the parent initial a checklist indicating he or she has received the information and has been offered discussion with the counselor on each topic. The packet contains a sample affidavit in the event the parent chooses the relinquishment option, as well as other individualized exercises such as the \\\"Ecomap,\\\" which the parent completes in order to identify persons who will provide support during the grieving process.\\n\\u00b65 Mother's counseling with Ruckwardt occurred on July 16, 2012, two months before she signed an affidavit of relinquishment on September 5, 2012, The District Court determined that Ruckwardt \\\"began the rehnquishment counseling session with [Mother] at 10:00 a.m. and concluded the session four hours later at 2:00 p.m.\\\" The District Court observed that during this time, Ruckwardt allowed Mother \\\"to take short breaks . to have a cigarette and to use the restroom.\\\" These breaks \\\"lasted 10 to 15 minutes, combined.\\\" Additionally, the District Court found that Mother \\\"took a 45 minute break from her relinquishment counseling at 11:30 a.m. to attend a Foster Care Review being conducted down the hallway from the room in which she was receiving counseling.\\\" Mother resumed counseling at 12:15 p.m. The District Court concluded that Mother had received between three hours and three hours and fifteen minutes of counseling and that the three-hour minimum time requirement had been satisfied.\\n\\u00b66 Ruckwardt testified that during options counseling with Mother, she used a document entitled \\\"Checklist for Counseling Requirement for Relinquishment of Parental Rights.\\\" This document contains every topic required to be discussed as set forth in \\u00a7 42-2-409(3)(a) through (j), MCA. Thus, in compliance with the counseling statute, Ruckwardt testified she offered Mother an explanation and opportunity to discuss the following topics set forth in \\u00a7 42-2-409(3)(a) through (j), MCA:\\n(a) adoption procedures and options that are available to a parent through the department or licensed child-placing agencies;\\n(b) adoption procedures and options that are available to a parent through direct parental placement adoptions, including the right to an attorney and that legal expenses are an allowable expense that may be paid by a prospective adoptive parent as provided in 42-7-101 and 42-7-102;\\n(c) the alternative of parenting rather than relinquishing the child for adoption;\\n(d) the resources that are available to provide assistance or support for the parent and the child if the parent chooses not to relinquish the child;\\n(e) the legal and personal effect and impact of terminating parental rights and of adoption;\\n(f) the options for contact and communication between the birth family and the adoptive family;\\n(g) postadoptive issues, including grief and loss, and the existence of a postadoptive counseling and support program;\\n(h) the reasons for and importance of providing accurate medical and social history information under 42-3-101;\\n(i) the operation of the confidential intermediary program; and\\n(j) the fact that the adoptee may be provided with a copy of the original birth certificate upon request after reaching 18 years of age, unless the birth parent has specifically requested in writing that the vital statistics bureau withhold release of the original birth certificate.\\n\\u00b67 Mother indicated she had received the required counseling regarding these topics by placing her initials next to each topic on the \\\"Checklist for Counseling Requirement for Relinquishment of Parental Rights.\\\" On a separate document entitled \\\"Birth Mother's Statement of Counseling Received,\\\" Mother again acknowledged having been offered information and discussion on each topic by signing and dating her statement.\\n\\u00b68 Mother also completed her own \\\"Ecomap\\\" in which she included the names of persons who could support her if she decided to relinquish her children. Ruckwardt discussed with Mother her relationship with each person and whether she could rely upon them for support. Finally, Ruckwardt had Mother write down the reasons why she might choose to relinquish and then placed these written statements in Mother's DPHHS file. Ruckwardt explained that by including these responses in a parent's file, she can assist the parent later if they choose to write a letter to the child which may then be placed in the adoption file.\\n\\u00b69 Ruckwardt did not prepare anything in addition to the above-referenced documents until she was asked by counsel for DPHHS, following this Court's remand, to provide documentation of the counseling she provided Mother. The packet of documents that Ruckwardt used during her counseling session with Mother, together with a cover letter describing her counseling session with Mother, was forwarded to DPHHS in December of 2013.\\nSTANDARDS OF REVIEW\\n\\u00b610 We review a district court's findings of fact in a parental termination case to determine whether the findings in question are clearly erroneous. B.J.T.H., \\u00b6 14. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if, after reviewing the record, this Court is left with a definite and firm conviction that the district court made a mistake. B.J.T.H., \\u00b6 14. A court's conclusions of law in such a case are reviewed for correctness, and its decision to terminate parental rights is a discretionary ruling reviewed for an abuse of discretion. B.J.T.H., \\u00b6 14.\\nDISCUSSION\\n\\u00b611 1. Was there substantial evidence to support the District Court's finding that, prior to signing an affidavit relinquishing her parental rights, Mother received counseling required by \\u00a7 42-2-409(1) and (2), MCA?\\n\\u00b612 A parent's right to the care and custody of a child represents a fundamental liberty interest, and consequently, the state must provide fundamentally fair procedures at all stages in the proceedings to terminate parental rights. In re A.N.W., 2006 MT 42, \\u00b6 34, 331 Mont. 208, 130 P.3d 619. Proceedings involving the termination of the parent-child relationship must meet due process requirements guaranteed by the Montana and United States Constitutions. In re A.S., 2004 MT 62, \\u00b6 12, 320 Mont. 268, 87 P.3d 408. Fundamental fairness and due process require that a parent not be placed at an unfair disadvantage during termination proceedings. A.S., \\u00b6 12; In re A.R., 2004 MT 22, \\u00b6 11, 319 Mont. 340, 83 P.3d 1287; In re A.S.A., 258 Mont. 194, 198, 852 P.2d 127, 129-30 (1993).\\n\\u00b613 When the State seeks to terminate a parent's rights through a voluntary relinquishment, the parent's rights are protected, in part, through the statutory provisions contained in \\u00a7 42-2-409, MCA. Counseling of the birth mother is required and counseling of \\\"any other parent... involved in an adoptive placement... is encouraged.\\\" Section 42-2-409(1), MCA. Unless counseling is waived for good cause by a court, a minimmn of three hours of counseling must be completed prior to execution of a relinquishment, or the relinquishment and consent to adopt is void. Section 42-2-409(2), MCA. The statute mandates that ten specific topics be \\\"explained\\\" to the birth mother, \\u00a7 42-2-409(3), MCA, and that the counselor prepare a written report containing a description of the topics covered and the number of hours of counseling completed, \\u00a7 42-2-409(4), MCA.\\n\\u00b614 Mother asserts that her testimony and her calendar, which was introduced into evidence, reflect that she left counseling at 12:10 p.m. after the foster care review. Mother also testified that the counseling did not begin at 10:00 a.m., as Ruckwardt represented. Mother claims that she only spent five to ten minutes total with Ruckwardt in counseling and spoke of nothing substantive. For these reasons, Mother maintains that the District Court erred when it concluded that Mother had received three hours of counseling.\\n\\u00b615 The State maintains the District Court's finding that Mother received at least three hours of counseling is supported by substantial evidence. Ruckwardt testified, and the District Court found, that the counseling session began at 10 a.m. on July 16,2012, and lasted until 2 p.m, Ruckwardt's notations made on the various documents contained within the packet reflect this as well. Ruckwardt acknowledged that there were breaks taken within the counseling session, but that the overall length of the session nevertheless comprised, at a minimum, a three-hour timeframe.\\n\\u00b616 We review the record with an appreciation that the credibility of witnesses and the weight to be given their testimony are determined by the trier of fact \\u2014 in this case the trial judge. State v. Aragon, 2014 MT 89, \\u00b6 17, 374 Mont. 391, 321 P.3d 841 (quoting State v. Hilgers, 1999 MT 284, \\u00b6 12, 297 Mont. 23, 989 P.2d 866). We have long observed that the trial court is in the best position to evaluate the credibility and demeanor of the witnesses and their testimony. Aragon, \\u00b6 17 (quoting Langford v. State, 2013 MT 265, \\u00b6 17, 372 Mont. 14, 309 P.3d 993). Here, the District Court specifically found that Ruckwardt's testimony that she provided at least three hours of counseling was more credible than Mother's testimony that she did not receive the required counseling. The documentary evidence further suggests that a significantly greater amount of time than five to ten minutes, as Mother contends was provided, would be required to discuss the ten topics which Mother has acknowledged she addressed with Ruckwardt. The District Court's finding that three horns of counseling was provided was supported by substantial evidence, and its credibility determinations will not be disturbed on appeal.\\n\\u00b617 The District Court further observed that, although the evidence indicated Mother received three hours of counseling, Ruckwardt offered to do additional counseling at a later date, which Mother refused. The District Court thus found, in the alternative, that good cause existed to waive the three-hour requirement. We conclude, however, that there was substantial evidence to support the District Court's finding that Mother received the requisite three hours of counseling and we therefore do not address the District Court's alternative finding that good cause existed to waive this requirement.\\n\\u00b618 2. Did the counselor produce a written report in compliance with the provisions of\\u00a7 42-2-409(4), MCA?\\n\\u00b619 Section 42-2-409(4), MCA, requires that the counselor prepare a written report that meets the following requirements:\\nThe counselor shall prepare a written report containing a description of the topics covered and the number of hours of counseling. The report must specifically include the counselor's opinion of whether or not the parent understood all of the issues and was capable of informed consent. The report must, on request, be released to the person counseled, to the department, to an agency, or with the consent of the person counseled, to an attorney for the prospective adoptive parents.\\nMother argues that the written report was never prepared. She maintains that a letter drafted in generic and formulaic terms eighteen months after Mother challenged the State's satisfaction of the counseling requirement is insufficient.\\n\\u00b620 The packet of documents used by Ruckwardt during the counseling session is clearly a method by which DPHHS and its counselors ensure that each topic required to be discussed pursuant to \\u00a7 42-2-409(3), MCA, is specifically addressed in counseling. Mother and Ruckwardt each made notations on the documents and Mother placed her initials next to each topic indicating she had discussed the topic in counseling. Mother also acknowledged, in a separate statement, that she had received the counseling in the specific topic areas. Ruckwardt kept these documents in her file until counsel requested that they be released. When Ruckwardt was asked to provide documentation, presumably in preparation for the evidentiary hearing on January 22, 2014, she forwarded the documents to counsel with a cover letter which more completely organized and described her counseling session with Mother.\\n\\u00b621 We agree with Mother that Ruckwardt's cover letter, composed 18 months after the fact, did not adequately comply with the provisions of \\u00a7 42-2-409(4), MCA, regarding preparation of a written report. Although a letter containing a summary description may suffice as a \\\"written report\\\" under the statute, even when all the documents are construed together, Ruckwardt did not include the required statement of the \\\"counselor's opinion of whether or not the parent understood all of the issues and was capable of informed consent.\\\" However, while we do not condone the procedure utilized by DPHHS in these proceedings, it is a deficiency that should not override the best interests of the children \\u2014 particularly the children's interest in permanency. DPHHS was granted temporary legal custody over three years ago when the twins were less than two years old. The State represents that the children have been waiting for their adoption to be finalized for over two years. If there were any evidence which would suggest that Mother's relinquishment was not knowingly and voluntarily made, although undeniably painful, then we may be compelled to consider this reporting deficiency in a different light. However, the evidence presented at the hearing established that Mother received the required amount of counseling regarding all of the necessary topics and that she was capable of making a knowing relinquishment of her parental rights. A deficiency in a reporting requirement regarding these observations and findings should not serve as a basis to set aside an otherwise valid relinquishment. As we have previously stated, \\\"[i]n matters involving abused and neglected children we have consistently held that a district court may protect the children's best interest despite procedural error.\\\" In re F.H., 266 Mont. 36, 39, 878 P.2d 890, 892 (1994); see also In re Adoption of S.R.T., 2011 MT 219, \\u00b6 28, 362 Mont. 39, 260 P.3d 177; In re J.C., 2008 MT 127, \\u00b6 43, 343 Mont. 30, 183 P.3d 22. In applying harmless error to dependency proceedings, we have recognized the \\\"well established [principle]... that 'no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless.' \\\" In re A.N., 2000 MT 35, \\u00b6 39, 298 Mont. 237, 995 P.2d 427 (quoting Newbauer v. Hinebauch, 1998 MT 115, \\u00b6 20, 288 Mont. 482, 958 P.2d 705). We therefore conclude that the deficiency in the reporting requirement is harmless in light of the evidence produced at the hearing demonstrating Mother received the required counseling on each topic and that her relinquishment was knowingly and voluntarily made.\\nCONCLUSION\\n\\u00b622 The Judgment of the District Court terminating the parent-child relationship between Mother and B.J.T.H. and B.H.T.H. is affirmed.\\nCHIEF JUSTICE McGRATH, JUSTICES COTTER, WHEAT and BAKER concur.\\nFather relinquished his parental rights on March 16,2012. For a more complete recitation of facts, see In re B.J.T.H., 2013 MT 366, 373 Mont. 85, 314 P.3d 911.\"}"

mont/4356443.json

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+"{\"id\": \"4356443\", \"name\": \"SCOTT ALLAN REIS, Plaintiff and Appellee, v. AUSTIN MICHAEL LUCKETT, Defendant and Appellant\", \"name_abbreviation\": \"Reis v. Luckett\", \"decision_date\": \"2015-12-02\", \"docket_number\": \"No. DA 15-0194\", \"first_page\": \"490\", \"last_page\": \"495\", \"citations\": \"381 Mont. 490\", \"volume\": \"381\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:48:13.930900+00:00\", \"provenance\": \"CAP\", \"judges\": \"JUSTICE McKINNON dissented.\", \"parties\": \"SCOTT ALLAN REIS, Plaintiff and Appellee, v. AUSTIN MICHAEL LUCKETT, Defendant and Appellant.\", \"head_matter\": \"SCOTT ALLAN REIS, Plaintiff and Appellee, v. AUSTIN MICHAEL LUCKETT, Defendant and Appellant.\\nNo. DA 15-0194.\\nSubmitted on Briefs October 7, 2015.\\nDecided December 2, 2015.\\n2015 MT 337.\\n381 Mont. 490.\\n362 P.3d 632.\\nJUSTICE McKINNON dissented.\\nFor Appellant: Paul R. Haffeman, Brooke W. Perkins, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls.\\nFor Appellee: Roland B. Durocher, Hartelius, Durocher & Winter, P.C., Great Falls.\", \"word_count\": \"2132\", \"char_count\": \"12980\", \"text\": \"JUSTICE COTTER\\ndelivered the Opinion of the Court.\\n\\u00b61 Scott Reis and Austin Luckett were involved in a serious three-car motor vehicle accident in Cascade County on February 16, 2010. Luckett admitted liability for the accident. Reis later claimed neck, back, and hand injuries. The Eighth Judicial District Court, Cascade County, conducted a jury trial in December 2014 and the jury held that Luckett's negligence in causing the accident was not the cause of Reis's claimed injuries. On January 9, 2015, Reis filed a Motion to Vacate Jury Verdict and Grant New Trial. Luckett opposed the motion. On March 3, 2015, the court granted Reis's motion. Luckett appeals. We affirm.\\nISSUE\\n\\u00b62 A restatement of the dispositive issue on appeal is whether the District Court erred in granting Reis's motion for a new trial.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b63 On February 16, 2010, Reis was traveling eastbound on U.S. highway 87/89 between Belt and Great Falls, Montana. Luckett was driving south on State Road 228 approaching the controlled intersection with Highway 87/89. The roads were \\\"extremely icy\\\" and the weather conditions were poor with dense fog. Despite his attempts to slow or stop his car, Luckett entered the intersection striking at least two vehicles, one of which was driven by Reis. While Reis did not report injuries to the responding police or Luckett immediately after the accident, he claimed that later the same day he began to experience neck and back pain as well as pain in his left hand, specifically his fifth metacarpal, i.e., his little finger.\\n\\u00b64 Over the next several months, Reis sought treatment from LaDonna Maxwell, a family nurse practitioner who owns and operates her own medical practice in Great Falls, Montana. During this time, Maxwell also referred Ries to a chiropractor, a pain specialist, and an orthopedist, all of whom Reis saw on multiple occasions.\\n\\u00b65 In January 2013, Reis filed a complaint alleging that Luckett's negligence caused the injuries for which he was seeking compensatory damages. Luckett acknowledged liability but disputed the extent to which the accident was the cause of Reis's injuries. The District Court held a jury trial in December 2014 and the parties stipulated to a special verdict form that contained two questions, the first of which was: (1) Was Austin Luckett's negligence a cause of injury to Scott Reis? The jury answered this question \\\"No\\\" and consequently did not respond to the second question pertaining to the appropriate amount of compensatory damages.\\n\\u00b66 In January 2015, Reis filed a Motion to Vacate Jury Verdict and Grant New Trial. He claimed the verdict was not supported by the evidence and that it was based on irregularities and misconduct of the jury because the jury discussed the issue of automobile insurance in the course of its deliberations. Luckett opposed the motion arguing that the jury reached a correct verdict based upon its determination that Reis was not a credible witness.\\n\\u00b67 On March 3,2015, the District Court granted Reis's motion for a new trial. The court held that while conflicting evidence was presented to the jury as to causation of Reis's claimed back and neck injuries, \\\"the uncontroverted evidence proves Luckett's negligence caused injury to Reis's hand.\\\" The court continued that \\\"[bjecause the verdict form did not differentiate causation of the two distinct injuries, the [cjourt concludes the jury verdict must be vacated and a new trial ordered because the verdict contravenes the evidence on the hand injury and has materially affected Reis's substantial rights.\\\" The District Court rejected the argument that an irregularity or misconduct by the jury warranted a new trial.\\n\\u00b68 Luckett appeals.\\nSTANDARD OF REVIEW\\n\\u00b69 Where a motion for a new trial under \\u00a7 46-16-702, MCA, is based on sufficiency of the evidence, we review the grant or denial of the motion de novo. State v. Mackrill, 2008 MT 297, \\u00b6 19, 345 Mont. 469, 191 P.3d 451.\\n\\u00b610 Where a jury fails to award any damages when the only evidence of record supports an award, that verdict is not supported by substantial evidence and may be set aside. Thompson v. City of Bozeman, 284 Mont. 440, 446, 945 P.2d 48, 52 (1997).\\nDISCUSSION\\n\\u00b611 Did the District Court err in granting Reis's motion for anew trial?\\n\\u00b612 In granting Reis's motion for a new trial, the District Court concluded that the jury's finding that Luckett's negligence was not a cause of injury to Reis could not be reconciled with the evidence concerning Reis's hand injury. The court noted that only two witnesses provided evidence regarding the hand injury. Maxwell diagnosed a \\\"boxer's fracture\\\" after reviewing x-rays of his hand. While she conceded on cross-examination that the x-ray report described the hand fracture as \\\"possibly remote,\\\" she as Reis's primary care provider unequivocally attributed the fracture to the car accident. Reis himself testified that his hand was broken when the airbag went off as a result of the accident, after which he had trouble opening and closing his hand and picking up objects. While it acknowledged there was conflicting evidence on causation with respect to the back and neck injuries claimed by Reis, the court concluded there was no conflicting evidence presented to the jury with respect to Reis's fractured hand. The court therefore ordered a new trial.\\n\\u00b613 Luckett argues on appeal that Reis gave inconsistent testimony that undermined his credibility, and thus it was within the province of the jury to conclude that he failed to prove that any of his claimed injuries were related to the accident. Luckett relies on Ele v. Ehnes, 2003 MT 131, 316 Mont. 69, 68 P.3d 835, in which defendant Ehnes admitted to rear-ending the car in which plaintiff Ele was a passenger. Ele, \\u00b6 5. The collision was at low speed with no visible damage to Ehnes' vehicle and no structural damage to the car in which Ele was riding. Ele, \\u00b6 5. Ele sought damages for multiple injuries he claimed he sustained in the low-speed collision. Ele, \\u00b6 7-8. Ele testified that his injuries prevented him from \\\"rough housing\\\" with his children, bowling, jet skiing, dancing, roller skating, camping, and taking out the garbage. Ele, \\u00b6 9. His treating physician stated that the accident \\\"had the potential\\\" of making Ele's preexisting conditions symptomatic, but also stated that when Ele is distracted, he has greater movement abilities than he claims. Ele, \\u00b6 12-13. Moreover, Ele's co-workers testified that since the accident they had seen Ele jet skiing, bowling, bending and twisting whilst setting up a tent, carrying a heavy cooler, and placing heavy garbage into the large alley garbage can \\u2014 all without apparent difficulty. Ele, \\u00b6 14.\\n\\u00b614 The jury in Ele returned a defense verdict. Ele, \\u00b6 16. We affirmed on appeal, observing that the jury almost certainly deemed Ele's evidence that the minor accident caused his purported injuries not credible. Ele, \\u00b6 32. We found that the jury could have been swayed by the testimony of his co-workers, and by the fact that after Ele's physician testified that he had no reason to question the cause of Ele's claimed injuries, he admitted to being unaware that his patient had a pre-accident history of chronic back pain. Ele, \\u00b6 30 and 33.\\n\\u00b615 In the case before us, by contrast, the undisputed testimony was that this was a serious three-car accident with substantial damage to all vehicles. Notably, there was no evidence offered to counter Reis's testimony that his hand was broken when his airbag inflated, nor was any evidence offered to counter the testimony of his care provider that the accident directly caused Reis's hand fracture. Ele is therefore readily distinguishable. For the same reason, we reject Luckett's reliance on Moore v. Beye, 2005 MT 266, 329 Mont. 109, 122 P.3d 1212, overruled on other grounds by Giambra v. Kelsey, 2007 MT 158, 338 Mont. 19, 162 P.3d 134, in which we affirmed a defense verdict because the jury had been presented with considerable conflicting evidence pertaining to Moore's claim of a back injury. There was no conflicting evidence presented to the jury concerning Reis's hand injury.\\n\\u00b616 Luckett argues that Reis gave conflicting statements about why he dropped out of high school and why he was fired from employment among other things, and that the jury was thus free to find on the basis of this testimony that Reis was not credible. He maintains that we should not consider the evidence regarding Reis's broken hand in isolation from the other evidence presented in the case. While we agree that it is within the jury's province to weigh the evidence and determine the credibility of the witnesses, \\\"a jury is not free to disregard uncontradicted, credible, nonopinion evidence.\\\" Renville v. Taylor, 2000 MT 217, \\u00b6 26, 301 Mont. 99, 7 P.3d 400. We therefore conclude that the District Court did not err in granting Reis's motion for new trial.\\nCONCLUSION\\n\\u00b617 For the foregoing reasons, we affirm the District Court's order granting Reis a new trial.\\nJUSTICES SHEA, BAKER and RICE concur.\"}"

mont/4356910.json

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+"{\"id\": \"4356910\", \"name\": \"NICK NEWLON, Petitioner and Appellee, v. TECK AMERICAN, INC., (formerly Cominco), Respondent and Appellant\", \"name_abbreviation\": \"Newlon v. Teck American, Inc.\", \"decision_date\": \"2015-11-10\", \"docket_number\": \"No. DA 15-0013\", \"first_page\": \"378\", \"last_page\": \"384\", \"citations\": \"381 Mont. 378\", \"volume\": \"381\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T22:48:13.930900+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and RICE concur.\", \"parties\": \"NICK NEWLON, Petitioner and Appellee, v. TECK AMERICAN, INC., (formerly Cominco), Respondent and Appellant.\", \"head_matter\": \"NICK NEWLON, Petitioner and Appellee, v. TECK AMERICAN, INC., (formerly Cominco), Respondent and Appellant.\\nNo. DA 15-0013.\\nSubmitted on Briefs July 22, 2015.\\nDecided November 10, 2015.\\n2015 MT 317.\\n381 Mont. 378.\\n360 P.3d 1134.\\nFor Appellant: Larry W. Jones, Wills Law Firm; Missoula.\\nFor Appellee: Margaret Dufrechou, Dufrechou Law Firm; Helena.\", \"word_count\": \"2631\", \"char_count\": \"15766\", \"text\": \"JUSTICE WHEAT\\ndelivered the Opinion of the Court.\\n\\u00b61 Teck American Incorporated (Teck) appeals from the Findings of Fact, Conclusions of Law, and Judgment of the Montana Workers' Compensation Court (WCC), finding that Nick Newlon was entitled to medical benefits related to injuries sustained while working for Teck, that Newlon's claim was not barred due to a superseding intervening cause, that Teck was estopped from asserting the 60-month time bar under \\u00a7 39-71-704(l)(d), MCA (1991), and that Newlon's claim was not barred by a statute of limitations or statue of repose. We affirm.\\nISSUES\\n\\u00b62 We have restated the dispositive issues as follows:\\n1. Did Teck and Newlon form an enforceable contract when both parties agreed to close several of Newlon's claims in exchange for a lump sum payment and lifetime health benefits for his knee and back?\\n2. If Teck and Newlon formed an enforceable contract, can Teck assert the 60-month rule under \\u00a7 39-71-704(l)(d), MCA (1991), to avoid liability for payment of Newlon's benefits?\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b63 Teck is a mining and resource extraction corporation that acquired Comineo American (hereinafter referred to as \\\"Teck\\\" for clarity) in its entirety in 2001. Nick Newlon worked for Teck as a miner for over 20 years. Originally hired in 1972, he worked for Teck until the mine closed in 1993. During his years working at the mine, Newlon was injured on the job in several incidents including at least three separate injuries involving his left knee. Newlon also reported numerous other work-related injuries over the years because Teck's safety policy required employees to report injuries, no matter how minor. While the record reflects some confusion regarding the timing of the knee injuries, Newlon's initial knee injury appears to have occurred sometime in 1974, with a subsequent injury in 1978, and another injury on October 3,1991. After the October 3, 1991 injury Newlon's left knee problems continued to get worse. Ultimately, Newlon had corrective surgeries on the knee in 1993 and 1996. Despite the surgeries, the symptoms and problems persisted.\\n\\u00b64 In 1996, Newlon was approached by Teck's assistant manager, Hugh Moore, to discuss settlement of all Newlon's existing Workers' Compensation claims. During their settlement negotiations Newlon's goal was to secure health coverage for his left knee and back conditions because his medical providers had warned him that he would probably need future treatment for the injuries. After discussions with Moore, Newlon, acting without legal representation, agreed to settle all of his outstanding injury claims against Teck for a lump sum of $25,000 and lifetime medical care for his left knee and back. Newlon agreed to the settlement because he understood that he would be fully covered the rest of his life. Under the agreement, Teck gained the benefit of closure of all of Newlon's other injury claims previously suffered by Newlon. Teck prepared the settlement documents and Newlon signed the agreement. Moore forwarded the documents to the Montana Department of Labor and Industry (DOLI) with an enclosed note stating, \\\"[t]he special provisions are that the medical is retained by the claimant or left open in the two cases indicated but closed in all others.\\\" The DOLI agreement does not list the injury dates of the claims settled; it lists the two open claim numbers noting that one claim is for \\\"lower back\\\" and the other for the 'left knee.\\\"\\n\\u00b65 After the 1996 left knee surgery and the settlement, Newlon did not obtain medical treatment for the knee until 2000. Newlon sought treatment in 2000 because his knee continued to swell, give out unexpectedly, and lock up after kneeling. After treatment in 2000, Newlon did not seek medical treatment for his knee until 2007. Teck authorized benefits and paid for Newlon's left knee treatment from the inception of his injuries through September 2010. Newlon still has problems with his knee, including swelling, pain, and inability to stand and put weight on the left knee after kneeling. In 2012, his doctors recommended a total left knee replacement. On December 21, 2011, Teck's counsel informed Newlon's counsel that Teck believed it was not liable for further medical care under \\u00a7 39-71-704(l)(d), MCA (1991). Teck agreed to pay medical benefits under a reservation of rights while working toward a resolution.\\n\\u00b66 In anticipation of Teck's change of position regarding his medical coverage, Newlon filed a Petition for Hearing in the WCC on September 2, 2011, asking the court to order Teck or the Montana State Fund to pay medical benefits based on his left knee claim. The Montana State Fund was subsequently dismissed from the suit and Newlon filed a second Petition for Hearing on May 17,2013, asking the WCC to order Teck to continue to provide medical coverage for Newlon's left knee injury including costs, penalties, and attorney fees. The parties prepared for trial. On October 9,2013, the parties filed a joint pretrial order with the WCC and the case was tried in Helena. On May 8,2014, the WCC issued its Findings of Fact, Conclusions of Law, and Judgment in the case. The court found that the dispute is governed by the 1991 Montana Workers' Compensation Act. The court also found that Newlon's claim was not barred due to a superseding intervening cause, and that Teck was equitably estopped from denying medical benefits on Newlon's claim on the basis of \\u00a7 39-71-704(l)(d), MCA (1991). Finally, the court determined that Teck's statute of limitations and statute of repose defenses were moot, and Newlon's claim was not barred by estoppel or laches.\\nSTANDARD OF REVIEW\\n\\u00b67 We conduct de novo review of the WCC's conclusions of law, including determinations of jurisdiction, to determine whether they are correct. Thompson v. State, 2007 MT 185, \\u00b6 14, 338 Mont. 511, 167 P.3d 867; Gamble v. Sears, 2007 MT 131, \\u00b6 20, 337 Mont. 354, 160 P.3d 537. This Court accords substantial deference to the WCC's findings of facts and we review those findings to determine whether they are supported by substantial credible evidence. Gamble, \\u00b6 20.\\nDISCUSSION\\n\\u00b68 1. Did Teck and Newlon form an enforceable contract when both parties agreed to close several of Newlon's claims in exchange for a lump sum payment and lifetime health benefits for his knee and back ?\\n\\u00b69 The parties have argued extensively regarding the conclusions in the WCC's judgment and order including disputes over equitable jurisdiction, equitable estoppel, and the 60-month rule, \\u00a7 39-71-704(l)(d), MCA (1991). We find that we do not need to address these issues as argued because the issues are resolved under contract law. In our view, this is a case in which a promise was made between two parties, a promise that this Court will uphold.\\n\\u00b610 The parties made three arguments and we briefly mention these arguments prior to our analysis of the contract formed in this case. First, Teck disputes the WCC jurisdiction in this case arguing that the court does not have the authority to exercise equitable jurisdiction in Workers' Compensation cases. Because this argument has no bearing on the contract issue we will not address it. Second, we find that Teck's argument regarding the second element of equitable estoppel is a new theory raised on appeal. This argument was not made at the WCC and we will not reach arguments the WCC did not have the opportunity to address. See In re T.E., 2002 MT 195, \\u00b6 20, 311 Mont. 148, 54 P.3d 38). Finally, we review the 60-month rule argument as part of the second issue of this opinion.\\n\\u00b611 Under \\u00a7 28-2-102, MCA, four elements must exist for a valid contract to be formed: the parties must have legal capacity, they must consent to the agreement, the agreement must be a lawful object, and the parties must give consideration. On review of the record of this case, we find all of the necessary elements required for an enforceable contract between Newlon and Teck, a fact neither party disputes in this case. Both parties agree that each consented to the provisions of the settlement agreement memorialized with the DOLI. Second, there is no question that a settlement agreement between employers and employees is a lawful objective of a contract. We have reviewed numerous cases involving similar settlement agreements and have found that Workers' Compensation settlement agreements are enforceable contracts. Gamble, \\u00b6 24. Finally, both parties provided proper consideration as part of their agreements in the contract. Newlon agreed to close thirteen of his fifteen open claims in exchange for a lump-sum payment and lifetime coverage for his knee and back. Teck provided consideration by paying the settlement amount and agreeing to keep the two claims open. We conclude, based on the record, that a proper contract was formed between the parties and duly memorialized by the DOLI on a standard \\\"Petition for Compromise and Release Settlement\\\" fill-in-the-blank form.\\n\\u00b612 A specific review of the WCC findings of fact regarding the promises exchanged between these parties further aids our determination regarding the enforceability of this contract. In its findings, the WCC found Newlon to be a credible witness and we rely in part on his testimony from the record to determine the parties' positions at the time of contracting. The WCC found that Moore, Teck's agent at the time, contacted Newlon to discuss the settlement of all of his outstanding Workers' Compensation claims. Moore promised to pay Newlon $25,000 and agreed that future medical care for his knee and his back would be covered by the mining company's insurer. Newlon discussed this arrangement with Moore and asked for coverage for life on his knee and back. Moore agreed to these conditions. Moore drafted the documents and attached a note to the settlement papers from the parties to the Montana Department of Labor and Industry stating: \\\"[t]he special provisions are that the medical is retained by the claimant or left open in the two cases indicated but closed in all others.\\\"\\n\\u00b613 The subsequent actions of the parties under the contract further illustrate the understanding of the parties. The WCC found that from the formation of the settlement agreement with Teck in 1996 until December 21,2011, Teck paid Newlon's medical benefits and left open his treatment with no reference to the 60-month rule. From the beginning, Teck, through its representative Moore, represented to Newlon that he would enjoy medical benefits for life. We find that the WCC's findings regarding the contract are supported by substantial credible evidence. As a result, we find that in 1996, Moore and Newlon agreed that Newlon would have coverage on his knee and back injuries for life as part of this settlement. We also find that the settlement is a valid and enforceable contract.\\n\\u00b614 2. If Teck and Newlon formed an enforceable contract where Teck promised Newlon benefits for life, can Teck still assert the 60-month rule under \\u00a7 39-71-704(l)(d), MCA (1991), to avoid liability forpayment ofNewlon's benefits?\\n\\u00b615 A fundamental tenet of contract law is freedom of contract; parties are free to mutually agree to terms governing their private conduct as long as those terms do not conflict with public laws. Winter v. State Farm Mut. Auto Ins. Co., 2014 MT 168, \\u00b6 26, 375 Mont. 351, 328 P.3d 665 {citing Arrowhead Sch. Dist. No. 75 v. Klyap, 2003 MT 294, \\u00b6 20, 318 Mont. 103, 79 P.3d 250). We note that in Wiard we held that the laws existing at the time a contract is formed are part of the contract. Wiard v. Liberty Northwest Ins. Corp., 2003 MT 295, \\u00b6 20-21, 318 Mont. 132, 79 P.3d 281 (citing Earls v. Chase Bank of Texas, N.A., 2002 MT 249, \\u00b6 12, 312 Mont. 147, 59 P.3d 364).\\n\\u00b616 The WCC concluded that the law in effect at the time of the settlement was the 1991 Montana Code Annotated, and that \\u00a7 39-71-704(l)(d), MCA (1991), is the law governing the settlement agreement. We agree with the WCC conclusions on governing law. In this case however, the governing law (60-month rule) is not dispositive. On review of the relevant Workers' Compensation statutes, we find no provision preventing an employer from contracting around the statute, or specifically, preventing an employer from promising more than is provided in the statute. Because there is no conflict with the relevant statutes, we do not find that the promise of lifetime care is an illegal objective that invalidates the contract. Just the opposite, the facts surrounding Newlon's settlement agreement reflect a promise made that effectively extends the coverage beyond the statutory rule because ultimately, under a legal contract, a deal is a deal.\\n\\u00b617 Teck also argues that this case is identical to our decision in Wiard and that we must conclude similarly that Newlon is barred from his benefits. We disagree. In Wiard, we determined that Wiard was barred by \\u00a7 39-71-704(l)(d), MCA (1991), from further benefits under his settlement agreement with his insurer because he failed to access those benefits for more than 60 months. Wiard, \\u00b6 39. However, unlike Newlon, Wiard did not have a specific promise from his employer similar to that made in this case. Wiard, \\u00b6 8-12,14-18. While Wiard entered into a settlement agreement with his employer closing benefits and keeping some health claims open, the facts of the case do not indicate a specific lifetime coverage promise. Wiard, \\u00b6 8-12, 14-18. Teck's promise to Newlon distinguishes this case from Wiard, and we cannot reach the same conclusion because the promise must be enforced.\\n\\u00b618 We find that the tenet of freedom to contract allows a party to a settlement agreement to make a promise that is durable even beyond the limits of the 60-month rule found in \\u00a7 39-71-704(l)(d), MCA (1991). A specific promise was made in this case to Newlon, promising Newlon benefits for life. This tenet is based on the notion that the parties are in the best position to decide the contractual provisions based on their own interests. Here, in our interpretation of the contract, we \\\"simply [give] effect to the agreement between the parties in order to enforce the private law of the contract \\\" Arrowhead, \\u00b6 20 (citing Ophus v. Fritz, 2000 MT 251, \\u00b6 23, 301 Mont. 447, 11 P.3d 1192).\\n\\u00b619 Thus, the 60-month rule does not apply because Teck effectively contracted away this right when the parties made the agreement. While we reach our conclusion on different grounds than the WCC, we find the same result as the court that Teck cannot deny Newlon's health benefits. We conclude that the WCC did not err in its determination that Teck cannot deny medical benefits under Newlon's claims on the basis of \\u00a7 39-71-704(l)(d), MCA (1991).\\nCONCLUSION\\n\\u00b620 We decline to address Teck's arguments that the WCC lacks the authority to employ equitable remedies. We find Teck's argument regarding the second element of equitable estoppel is newly raised on appeal and we will not reach arguments the WCC did not have the opportunity to address. We find that Moore and Newlon created an enforceable contract granting Newlon lifetime coverage for his knee and back injuries. We simply give effect to a lawful agreement made between the parties. The WCC did not err in its conclusion that Teck cannot deny medical benefits to Newlon on the basis of \\u00a7 39-71-704(l)(d), MCA (1991).\\n\\u00b621 Affirmed.\\nCHIEF JUSTICE McGRATH, JUSTICES McKINNON, COTTER and RICE concur.\"}"

mont/4370817.json

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+"{\"id\": \"4370817\", \"name\": \"KNIGHT et al., Respondents, v. LE BEAU, Appellant\", \"name_abbreviation\": \"Knight v. Le Beau\", \"decision_date\": \"1897-02-15\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"228\", \"citations\": \"19 Mont. 223\", \"volume\": \"19\", \"reporter\": \"Montana Reports\", \"court\": \"Montana Supreme Court\", \"jurisdiction\": \"Montana\", \"last_updated\": \"2021-08-10T20:33:54.468503+00:00\", \"provenance\": \"CAP\", \"judges\": \"Pemberton, C. J., and Hunt, J., concur.\", \"parties\": \"KNIGHT et al., Respondents, v. LE BEAU, Appellant.\", \"head_matter\": \"KNIGHT et al., Respondents, v. LE BEAU, Appellant.\\n[Submitted February 8, 1897.\\nDecided February 15, 1897.]\\nAction by Administrator \\u2014 Pieacting \\u2014 Appointment \\u2014 Demurrer, Grounds of- \\u2014 Practice.\\nUnder section 745, Code of Civil Procedure 1895, it is not necessary to state in a complaint by an administrator the facts showing jurisdiction of the court to grant letters; it is sufficient to state that letters were duly given and made; the better practice, however, is to state the facts.\\nDkm\\u00fckbek-Stating Grounds. \\u2014 That the plaintiff has no legal capacity to sue, is a separate ground of demurrer, distinct from the grounds of \\u201cfacts insufficient to constitute a cause of action\\u201d and from the ground of \\u201cuncertainty,\\u201d cannot be considered unless specified in the demurrer.\\nSame. \\u2014 Unless it appears upon the face of the complaint that the court has no jurisdiction of the subject matter, a demurrer will not be sustained oh that ground.\\nSame. \\u2014 A complaint in an action by an administrator is not subject to a demurrer on the ground that it is unintelligible and uncertain because it does not state the date of the death of deceased.\\nAppeal from District Court, Gallatin County. F. K. Armstrong, Judge.\\nAction by J. A. Knight and another, as administrators with the will annexed of the estate of George Henry Godwin, deceased, against Peter Le Beau. From a judgment for plaintiffs on the pleadings, defendant appeals.\\nAffirmed.\\nStatement of the case by the justice delivering the opinion.\\nThe paintiffs\\u2019 complaint in this action is as follows: \\u201cThe plaintiffs complain of the defendant, and allege: First. That on the 25th day of November 1895, the plaintiffs were duly and legally appointed administrators with the will annexed of the estate of George H. Godwin, deceased,' and that on the 12th day of December, 1895, they duly qualified as such administrators, and letters of administration with the will annexed of said estate, were duly and and legally issued to them and each of them; and that they and each of them have ever since been, and now are, the duly and legally appointed, qualified, and acting administrators with the will annexed of the estate of George Henry Godwin, deceased. Second. That on the 2d day of January, 1893, at Park Ranch, Cherry Creek, Madison county, Montana, the defendant made, executed, and delivered to the said George Henry Godwin his promissory note in writing, bearing date on that day, which promissory note reads.in words and figures following, to-wit: \\u2018\\u00a7500. Park Ranch, Cherry Creek, Madison Co., Montana, January 2d, 1893. One day after date 1 promise to pay Geo. H. Godwin or order, for value received, five hundred dollars, with interest at ten per cent, per annum both before and after maturity. January 2d, 1893. P. Le Beau. \\u2019 Third. That, at the time of the appointment of plaintiffs as administrators with the will annexed of said estate as aforesaid, said note was a part of the assets of said estate, and the property thereof, and the same came into the hands of these plainiffs', as admin-' istrators aforesaid, as the property of said estate; and plaintiffs have ever since been, and now are, the lawful owners and holders of said promissory note. Fourth. That the defendant has not paid said note, or any part thereof, or any interest thereon, but that the principal sum mentioned in said note, with interest thereon at the rate of ten per cent, per annum from the 2d day of January, 1893, is now wholly due and unpaid, and justly owing from defendant to plaintiffs, as administrators aforesaid. Wherefore plaintiffs pray for judgment against the defendant for the sum of \\u00a7500, with interest at the rate of 10 .per cent, per annum from the 2d day of January, 1893, together with all costs of this action, and for all other proper relief. \\u20195 To this complaint the following demurrer was filed: \\u201cComes now the defendant in the above entitled action, and demurs to the complaint therein on the followinggrounds: First. The complaint does not state facts sufficient to constitute a cause of action. Second. The court hits no jurisdiction of the subject of the action. Third. The said complaint is unintelligible and uncertain in the following particulars: (1) It cannot be ascertained from said complaint when or where said George H. Godwin died. (2) It cannot be ascertained from said complaint when or by what means said cause of action accrued to plaintiffs, if ever.\\u201d The demurrer was overruled, and, the defendant declining to answer, judgment was rendered in favor of plaintiffs as prayed for. The appeal is from the judgment.\\nLuce cfi Luce, for Appellant.\\nHartman Bros, da Stewart, for Respondents.\", \"word_count\": \"1968\", \"char_count\": \"11419\", \"text\": \"Buck, J.\\nWe have before us in this appeal able and elaborate briefs on interesting questions of pleading, and have given the arguments of respective counsel the most careful consideration. Does the complaint state a cause of action? We think it does. It is true that the averments as to the legal capacity of plaintiffs to sue are very defective. Properly the pleading should have shown by direct averment that God-win died leaving a will; that a court of this state (naming it) duly made orders admitting said will to probate, and issuing letters of administration with the will annexed to plaintiffs. See 1 Estee, PI. & Prac. \\u00a7 419. Section 745, Code of Civil Procedure 1895, is as follows: \\\"In pleading a judgment, or other determination of a court, officer or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction.\\\" Under the old common-law rule, in pleading an order of an inferior court, the jurisdictional facts preceding it had to be set forth. Section 745, supra, has changed the old rule, but certainly was not designed to countenance the careless omissions we have mentioned. We strenuously condemn such laxity in pleading. See Halleck v. Mixer, 16 Cal. 574; Bird v. Cotton, 57 Mo. 568. One of the specific grounds for demurrer designated in section 680 of our Code of Civil Procedure of 1895 is ' 'that the plaintiff has not the legal capacity to sue. ' ' Of course, under said last-named section, a demurrer on this ground lies only when the legal incapacity appears on the face of the complaint. See Herbst Importing Co. v. Hogan, 16 Mont. 384, 41 Pac. 135. But a demurrer on the ground of want of legal capacity is something entirely distinct from one which raises the objection that a complaint does not state facts sufficient to constitute a cause of action. When one of these two separate grounds is the basis of a demurrer, the other cannot be considered. See Pom. Rem. (2d Ed.) \\u00a7 208; Fulton Insurance Co. v. Baldwin, 37 N. Y. 648; Phoenix Bank v. Donnell, 40 N. Y. 410; Debolt v. Carter, 31 Ind. 355; Cone Ex. & Commission Co. v. Poole, 24 L. R. A. 289, 19 S. E. 203; Mora v. Le Roy, 58 Cal. 8; Phillips v. Goldtree, 74 Cal. 151, 13 Pac. 313, and 15 Pac. 451; Miller v. Luco, 80 Cal. 257, 22 Pac. 195; Halleck v. Mixer, 16 Cal. 574; and Bird v. Cotton, 57 Mo. 568.\\nThe actual cause of action in the complaint under review is the unpaid promissory note executed by defendant to the decedent, Godwin. The capacity in which a plaintiff sues is not necessarily an essential element of the cause of action stated in his complaint. See authorities last cited. In State v. Matson, 38 Mo. 489, and Judah v. Fredericks, 57 Cal. 389, which are the main precedents relied upon by appellant, the courts evidently proceeded upon the theory that the right of the party to recover is an essential element of the cause of action he' states. We can readily understand that the right to recover may be regarded as an element of the cause of action, under certain circumstances. For example, if it appears on the face of the complaint that the plaintiff is in no wise connected with the cause of action, and has clearly no right to recover on it, a general demurrer would lie. (See Berkshire v. Shultz, 25 Ind. 523.) But there is a manifest distinction between a complaint which fails to show any capacity to sue, or. any right to recover, and one which only defectively sets forth the capacity or right. In the two cases relied upon by appellant, cited supra, we think the courts overlooked this .distinction. For in both of these cases there were allegations showing that the plaintiffs sued as executors of decedents, however defective they may have been. Between a right to recover and the want of legal capacity designated as a ground for demurrer in section 680, Code of Civil Procedure 1895, the difference may not, at times, seem very clear. But if a right to recover is to be regarded as an essential element of the cause of action stated, to such an extent as to include the capacity to sue, then such a doctrine, carried out logically, would completely nullify the specific statutory ground of demurrer for want of legal capacity to sue. We cannot follow any such doctrine, even if the cases of State v. Matson and Judah v. Fredericks, supra, and others cited by appellant, do follow and teach it. For the purposes of the general demurrer to the complaint because it fails to state a cause of action, we must accept as conceded that the plaintiffs were the administrators of Godwin, that Godwin was dead, and that the note sued upon is in their hands as administrators of his estate. However defective the allegations, these facts are clearly inferable. Under the general rule that there is no presumption against the pleader, we cannot infer from, these averments that Godwin is alive, that he left no will, and that a court qualified to do so did not duly issue letters of administration with his will annexed to plaintiffs. Appellant has cited the case of Harmon v. Cattle Co., 9 Mont. 243, 23 Pac. 470, and Weaver v. English, 11 Mont. 84, 27 Pac. 396. We do not think these cases apply in the present appeal. In the former a judgment of an inferior court was relied upon as a cause of action, and the court held that the said judgment was not properly pleaded in the complaint. In the latter, the judgment of the inferior court was relied upon as the gist of a defense, and the court held also that it was not properly pleaded.\\nAnother ground of demurrer relied upon by appellant is' that the court had no jurisdiction of the subject-matter of the action. Lack of jurisdiction does not appear on the face of the complaint.\\nAgain, appellant urges that the complaint is unintelligible and uncertain, inasmuch as it cannot be ascertained when or where said Godwin died. But appellant is not injured by such omissions in the complaint. The demurrer was properly overruled in this i espect.\\nAgain, appellant urges that the complaint is unintelligible and uncertain because it cannot be ascertained therefrom when or by what means a cause of action accrued to the plaintiffs, if it ever did accrue. The answer to this ground of demurrer is contained in the reasons we have set forth in treating the first ground, namely, that the complaint does not state facts sufficient to constitute a cause of action. If the defendant had wished to test the right or capacity of plaintiffs to sue on the note to Godwin, he should have filed an answer. For these reasons the judgment is affirmed.\\nAffirmed.\\nPemberton, C. J., and Hunt, J., concur.\"}"