text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHANCY LONG, Defendant and Appellant.
    No. 85-564.
    Submitted on Briefs July 24, 1986.
    Decided Oct. 30, 1986.
    726 P.2d 1364.

      Leanne M. Schraudner, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Marty Lambert, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendant Chancy Long appeals his conviction for two counts of sexual assault following a jury trial in the District Court, Eighteenth Judicial District, Gallatin County. We affirm his conviction and remand his sentence for rehearing.

The principal issues raised by Long on appeal are: (1) whether the District Court improperly allowed the testimony of juvenile girls, other than those for whom the charges were filed, as testimony pertaining to prior acts under Rule 404(b), M.R.Evid.; (2) whether the District Court committed error in its cautionary and jury instructions when it described the other girls’ testimony as evidence of prior crimes, rather than as evidence of prior acts; (3) whether the District Court erred in refusing to permit evidence of the absence of sexual assault of defendant’s grandchildren under Rule 106, M.R.Evid.; (4) whether the District Court erred in refusing to instruct the jury on the offense of misdemeanor assault. (5) whether defendant received effective assistance of counsel; and, (6) whether the county prosecutor’s opening and closing statements unfairly prejudiced the defendant.

On November 20, 1984, an information was filed against the defendant charging him with three counts of sexual assault against two four-year-old girls and a six-year-old girl. In December and again in March, the county attorney filed notices with the District Court and defendant notifying them that the County attorney intended to introduce evidence of other crimes, wrongs or acts involving four other girls. The girls’ ages ranged from 5 to 9 years at the time defendant was in contact with them. The prosecution contends the evidence was necessary to establish that defendant’s behavior was indicative of a common scheme of assaulting very young girls. On April, 1985, defendant was convicted in a trial by jury of sexually assaulting the two four-year-old girls. The District Court dismissed the count of felony sexual assault involving the six year old after the State finished its case in chief.

At the time the oifenses were committed, defendant owned and operated a trailer court in Belgrade, Montana. The children in the trailer court would often visit the defendant’s house to play with defendant’s two grandchildren. The incidents of abuse occurred between April, 1983, and October, 1984. In October, the parent of one of the four-year-olds overheard a conversation between her daughter, W.B., and the other four-year-old, A.M„ describing defendant’s assaultive actions. Later at trial the two girls testified that defendant had pulled their pants down and rubbed their vaginas.

The prosecution’s evidence of other crimes, wrongs or acts involving the four other children was as follows: H.D., an eight year old, testified that when she was alone with defendant he touched her near her “private spot’ ” which she indicated was below her naval at her belt line. T.D., a six year old, testified that defendant touched her on the thigh when he was giving her a ride to school. This was the charge dismissed after the State’s case in chief. Another T. D., age 10, testified that defendant held her hand tightly with both of his hands frightening her because she couldn’t get away from him. M.M., age five, testified that he had “rubbed her bottom” several times when she was alone with him. Finally, N.S. testified that in 1980, when she was nine years old, defendant surprised her by kissing her on the lips. N.S. reported the incident to her mother and from that time on went to another neighbor’s house after school, instead of to the defendant’s house.

The defendant is asserting on appeal that the testimony of H.D., M.M., N.S. and ten year old T.D. was improperly admitted by the District Court because their testimony violated Rule 404(b), M.R.Evid. and State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

The procedural aspect of this contention must be considered first. It is a well established rule in Montana that if counsel fails to object to an issue at trial, the issue cannot be raised for the first time on appeal. In State v. Patton (1979), 183 Mont. 417, 600 P.2d 194, this Court considered allegations of error which were raised for the first time on appeal and held that:

“[a] District Court will not be put in error where it was not accorded an opportunity to correct itself. State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300. The admissibility of evidence to which no objection is made cannot be reviewed on appeal. State v. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129, 1132; State v. Dillon (1951), 125 Mont. 24, 30, 230 P.2d 764. The failure to object or to move to strike testimony precludes objection on appeal. State v. Cripps (1978), 177 Mont. 410, 582 P.2d 312, 317, 35 St.Rep. 967.” State v. Patton (1979), 183 Mont. at 422, 600 P.2d at 197.

In State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357, this Court examined the right to appeal an issue, not dealt with at trial that testimony had been admitted in violation of Rule 404(b), M.R.Evid., stating:

Defendants next argue that the District Court erred in admitting testimony of prior acts of violence committed by persons not defendants against the victim or other children. Initially, defendant Powers’ failure to object to this issue at trial bars his raising it on appeal.”

State v. Powers (1982), 198 Mont, at 299, 645 P.2d at 1363.

In his appeal, defendant is objecting to the testimony of H.D., M.M., N.S., and ten year old T.D. However, at trial defendant objected only to M.M.’s testimony, stating:

I didn’t object earlier to [N.S. or H.D. 10 year old T.D.] That testimony doesn’t amount to a hill of beans, judge. There is a little bit of smoke there but I don’t see fire anywhere.

Now, in the testimony of M.M., which I was just able to ascertain at lunch time today, they were talking about an act very similar to the allegations that are charged. I think that it is extremely prejudicial to Mr. Long. In fact, the prejudicial effect substantially outweighs the probative value, and I would ask the Court not to allow them to call this most recent witness who will testify to acts that have not been charged.”

It is apparent from the record that defendant’s trial counsel objected only to the admissibility of M.M.’s testimony. Hence the issue now before this Court is whether M.M.’s testimony was admitted in violation of Rule 404(b), M.R.Evid. and State v. Just, supra.

Rule 404(b) provides that:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Admissibility is also governed by four specific substantive rules which are (1) similarity between the crime charged and the previous crimes, wrongs or acts; (2) nearness in time between the charged crime and the previous crimes, wrongs or acts; (3) tendency to establish a common scheme, plan or system; and (4) a determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. State v. Jensen (1969), 153 Mont. 233, 455 p.2d 631; State v. Just, supra.

Defendant contends that the act testified to by M.M. was not sufficiently similar to defendant’s assault upon A.M. and W.B. to satisfy the first element of the Just test. Defendant’s assault against A.M. and W.B., both four years old, involved pulling the girls pants to their knees and rubbing their vaginas. M.M., age 5, testified that defendant had “rubbed” her bottom. Her clothes had not been removed. Defendant argues that this act, standing alone, had no sexual connotation and that it took on evil connotations only when coupled with the charges of sexual assault.

It must be noticed that sexual abuse of children takes subtle forms. Further, because sexually abused Children often have a difficult time communicating what has happened to them, it is wise to defer to the perceptions of the finder of fact. In this case the trial judge admitted M.M.’s testimony over defendant’s trial counsel’s objection and properly submitted the matter to the jury for them to weigh the evidence.

This Court established in State v. Tecca (Mont. 1986), [220 Mont. 168,] 714 P.2d 136, 43 St.Rep. 264, that it is not necessary that the prior act be identical to the charged offense. The test established in Tecca requires only that there be “sufficient similarity” between the charged offense and the other crime, wrong or act. Here, the State introduced evidence of the prior act to show common scheme, plan or design in the defendant’s conduct. Because of the subtle nature child abuse, we find the evidence or prior acts is similar enough to the acts involved to justify its admission.

Defendant alleges on appeal that M.M.’s testimony was extremely prejudicial and that the prejudicial effect substantially outweighed the testimony’s probative value. We disagree. The State had evidence of defendants acts against A.M. and W.B. Given the elusive nature of sexual assault against very young children, M.M.’s testimony was probative of the State’s theory that defendant’s actions were not an isolated event.

Defendant next alleges error in the trial court’s application of the Just procedural rules. These guidelines require (1) that notice be given to defendant prior to trial that evidence of other crimes, wrongs, or acts will be introduced; (2) that there be an admonition by the judge to the jury when the evidence is introduced that that evidence is admitted solely for one or more of the accented purposes stated in Rule 404(b); and (3) that a cautionary jury instruction to the same effect be given, providing in unequivocal terms that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. State v. Just, 184 Mont. at 274, 602 P.2d at 963-964.

In keeping the second requirement of the Just procedural guidelines, the trial court gave on four separate occasions the following cautionary instruction:

“Ladies and gentlemen of the jury, the State is attempting to offer evidence that the Defendant at another time engaged in other crimes. The only purpose of submitting the evidence is to show proof of motive, opportunity, intent, knowledge, identity, and absence of mistake or accident. You may not use that evidence for any other purpose. The Defendant is not being tried for that other crime. He may not be convicted of other offenses than those charged in the case. Those charges are involving [A.M., W.B. and six-year-old T.D.]. For the jury to convict the Defendant of offenses other than those charged in the information would be unjust double punishment of the Defendant.”

This cautionary instruction was first given during the testimony of H.D. and was repeated before testimony of defendant’s acts by ten-year-old T.D., N.S., and M.M. After the very first reading during H.D.’s testimony the following exchange took place between defense counsel and the District Court.

“DEFENSE COUNSEL: Your Honor, I had earlier indicated we wanted to object to that instruction; as referred to this testimony as about to be offered, as a crime. I feel that it is a comment on the evidence. I would like to instruct the jury that it may not or may be a crime. They can consider the evidence for what it’s worth.

“THE COURT You heard the objection made. [Counsel ] is objecting to the terminology of the word “crime” and you will be instructed under — what constitutes a crime. You can make that determination yourself. “

Defendant contends that the inference taken from the “other crimes” instruction converted acts of doubtful criminal nature into evidence of a course of conduct of sexual assault. This is not the case. Here the court drew the jury attention to defense counsel’s objection. Then the court explained to the jury that it would be instructed on what constituted the crime. The court also explained that the jury would be free to exercise its own discretion in determining if the acts did constitute crimes. To further alleviate any possibility of unfair prejudice to the defendant, the court, after repeating the “other crimes” instruction as instruction 18, gave the following cautionary instruction:

“Instruction 19

The preceding instruction [18] has been read to you several times throughout the course of the trial. It refers to other crimes of the defendant. Although I use the term crimes to describe the acts testified to, I didn’t mean t suggest that they were criminal acts.”

The giving of this final cautionary instruction protects the balance between probative va!e and prejudicial effect by alleviating any potential misconstruction of the repeated caution referring to other crimes, wrongs or acts simply as crimes.

This Court is not suggesting that the District Court’s abbreviation of the Just “other crime” instruction is adopted. It merely approves its use in conjunction with the above discussed mitigating steps intended to protect defendant from unfair prejudice.

Defendant next alleges error because the trial court refused to allow evidence of the absence of criminal conduct by defendant against his grandchildren. Again, however, the defense objection runs afoul of procedural requirement on appeal. Before trial, the county attorney’s office filed a motion in limine to preclude the defendant from discussing whether or not he had molested his grandchildren. During the hearing in chambers before trial, the District Court granted the prosecutor’s motion after the defendant’s trial attorney stated he had no objection.

Here again the defendant wishes to raise an objection to the introduction of evidence for the first time on appeal. As we stated earlier, citing the cases of State v. Patton (1979), 183 Mont. 417, 600 P.2d 194, and State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357, defendant cannot appeal an issue not tried at District Court level.

At trial defense counsel offered several instructions stating that misdemeanor assault is a lesser included offense of sexual assault. The District Court refused to so instruct the jury and defendant appeals. We affirm the District Court’s decision.

This Court addressed this issue in State v. Madera (Mont. 1983,) [206 Mont. 140,] 670 P.2d 552, 40 St.Rep. 1558. There we explained that our statute, Section 46-11-502(1), MCA, prevents prosecution for more than one offense when one offense is included in the other. We also adopted the Blockberger v. U.S. (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 test for determining if there is a lesser included offense. This test states that separate distinct offenses require proof of additional facts, were lesser included offenses do not. “We look to the statutes and not to the facts of the individual case to make that determination.” State v. Madera (Mont. 1983), [206 Mont. 140,] 670 P.2d at 558, 40 St.Rep. at 1564.

An examination of the statutes defining misdemeanor assault and sexual assault clearly indicate that misdemeanor assault is not a lesser included offense of sexual assault. A person commits the offense of misdemeanor assault if he purposely or knowingly makes physical contact of an insulting or provoking nature with any individual. Section 45-5-201(l)(c), MCA. A person commits the offense of sexual assault if he knowingly subjects another, not his spouse, to any sexual contact without consent. Section 45-5-502(1), MCA. In order to prove misdemeanor assault, the State must prove that physical contact of an insulting or provoking nature occurred. This is not required as proof of sexual assault.

In order to adopt the defendant’s lesser included offense theory, this Court must find that sexual contact and physical contact of an insulting or provoking nature are interchangeable terms. This we will not do. The defendant’s contentions that misdemeanor assault is a lesser included offense of sexual assault is not supported by the law.

Defendant next contends that he was denied effective assistance of counsel at trial. To support this contention, he argues that trial counsel conducted no independent investigation of the facts, that counsel did not interview the State’s witnesses, did not seek the help of an expert in preparing for trial and did not pursue examination of defendant’s physical and mental health. He further claims that counsel failed to prepare him as a witness or call witnesses to testify on his behalf.

The standard used to review claims of ineffective counsel comes from Strickland u. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 as adopted in Montana in State v. Probert (Mont. 1986), [221 Mont. 476,] 719 P.2d 783, 43 St.Rep. 988; State v. Boyer (Mont.1985), [215 Mont. 143,] 695 P.2d 829, 42 St.Rep. 247; and State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 42 St.Rep. 1440. The two-pronged test is as follows:

“First, 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 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.”

Boyer, 695 P.2d at 831, 42 St.Rep. at 250 (quoting Strickland v. Washington, supra). “Challenging the effective assistance of counsel places a burden on a defendant to show ‘that the error allegedly committed by a lawyer resulted in prejudice to him and stemmed from neglect or ignorance rather than from informed professional deliberation.” State v. Robbins (Mont. 1985), 708 P.2d at 231, 42 St.Rep. at 1443. To show prejudice “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of a proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.,” Id. at 232, 42 St.Rep. at 1444. We are of the opinion that defendant cannot meet the burden of proving that his counsel was ineffective.

Defendant’s arguments on the issue rely almost totally on matters which are not part of the record on appeal in this case. There is no evidence in the record that the issue of mental disease or defect should have been pursued nor is there any indication in the trial transcript that defendant was not capable of understanding the proceedings or unable to assist counsel in his own defense.

Defendant argues that trial counsel erred by failing to require that defendant undergo physical and mental examinations in preparing the defense and prior to sentencing. This argument imposes an unacceptable burden on defense attorneys by requiring them to exercise diagnostic skills beyond their training. In this case the record suggests nothing that would evidence that defendant was suffering from mental disease or defect, Trial counsel’s performance was not deficient under these circumstances.

Defendant also claims that trial counsel erred in failing to interview the state’s witnesses, the children and their parents. The decision about interviewing witnesses prior to trial’s tactical, especially in this case involving potentially hostile parents and their children. If the attorney believes he may obtain better results at trial without having earlier interviewed the witnesses, that is his prerogative. The exercise of discretion in making tactical decisions cannot automatically be deemed ineffective assistance. The same rule holds true for trial counsel’s decision to call no witnesses on the defendant’s behalf. There is no evidence that even if certain witnesses had been called that their testimony would have been relevant to the facts of the crime. Finally, although trial counsel may have failed to prepare defendant as a witness, counsel’s error was not so serious as to deprive defendant of a fair trial. In fact, review of the transcript indicates defendant carefully considered his responses before replying on cross-examination.

Finally, defendant complains that the deputy county attorney who prosecuted the case made inflammatory and prejudicial remarks in his opening and closing statements to the jury. In his opening statement, counsel for the prosecution stated.

“The children you are about to see testify, they are the future. They are the future of this country and of this state and of this nation. They will become the doctors and engineers and nurses and lawyers and county commissioners of tomorrow.

“The testimony will prove, ladies and gentlemen, that this man threatened our future. He threatened our future.” The closing argument maintained the tone:

You have got your job to do, and I know that you are not going to allow sympathy or prejudice on his part or anybody’s part to affect your decision. This is the most important affair. Would you allow your four or five year old to play with this man? . . . Our future was threatened. That is wrong.”

Defendant believes that at the above quoted statements prejudicially exceeded the bounds of fair advocacy. It is our duty in this instance to consider the trial record as a whole and to ignore errors that have little, if any, likelihood of having changed the result of the trial. Although the prosecutor’s arguments were over-broad and dramatic, it is clear they did not by themselves render the trial unfair. It is this Court’s opinion that the prosecutor’s comments did not affect the substantial rights of the defendant or deprive him of a fair trial.

Defendant had requested on April 11, 1986 in a separate motion that this Court suspend appeal and remand this case for hearing on whether a new trial should be granted. We denied that motion, but feel that evidence gathered in support of that motion is pertinent to Long’s sentence. The evidence we refer to involves the results of examinations of defendant by two physicians and a psychologist. The examinations were conducted after defendant was sentenced and suggested that defendant is suffering from organic brain syndrome and progressive dementia. There is also some indication that defendant is suffering from Alzheimer’s disease.

We believe the rule of law set out in Section 46-14-311, MCA, must be followed in this case. Section 46-14-311 states:

Consideration of mental disease or defect in sentencing. Whenever a defendant is convicted on a verdict. . . and he claims that at the time of the commission of the offense of which he was convicted he was suffering from a mental disease or defect which rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, the sentencing court shall consider any relevant evidence presented at the trial and shall require such additional evidence as it considers necessary for the determination of the issue, including examination of the defendant and report thereof as provided in 46-14-202 and 46-14-203.”

In the instant case the defendant’s progressive dementia was not diagnosed until after trial and sentencing. Nonetheless, the evidence is clearly relevant and warrants attention, especially as it relates to defendant’s sentence.

Defendant’s April motion requested rehearing for purpose of determining the necessity of a new trial. Our denial of that motion is consistent with our present decision to remand the issue of mental disease to the sentencing court for review.

“A medical diagnosis of mental illness that requires treatment and a legal finding of mental disease that relieves criminal responsibility are distinguishable. It is possible to be diagnosed as suffering from a mental illness for medical and treatment purposes and, from a legal standpoint, still be criminally culpable.”

State v. Watson (Mont. 1984), [211 Mont. 401] 686 P.2d 879, 887, 41 St.Rep. 1452, 1462.

We affirm the defendant’s conviction for sexual assault. Whether his sentence should be conditioned because of a mental disease or defect has not been determined in the District Court. We remand the cause to the District Court for further proceedings regarding his sentence with opportunity provided to the State and the defendant to present additional evidence as to whether the defendant’s sentence should be modified under Section 46-14-311 and 46-14-312, MCA.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, WEBER and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    In the Matter of the ESTATE OF MARGARET A. WALES, Deceased.
    No. 86-134.
    Submitted on Briefs May 30, 1986.
    Decided Oct. 30, 1986.
    727 P.2d 536.

      Ted L. Mizner, Deer Lodge, for appellant.
    Kenneth R. Neill, Larsen & Neill, Great Falls, for respondent.

      . The aversion of the courts toward construing devises as specific is usually attributed to the fact that such gifts are subject to ademption in the event their subject matter is disposed of by the testator after execution of the will, as result which is regarded as imposing a hardship on the devisee.

   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Third Judicial District in and for the County of Powell, Montana, concerning the distribution of the estate of Margaret Wales. The sole issue presented is whether a gift made by the deceased in her lifetime took the place of and adeemed by satisfaction devises contained in her last will and testament.

Margaret A. Wales (“Anita”) died on April 14, 1984. She had previously executed a last will and testament on December 1, 1976. In her will, Anita had distributed 147 shares of her stock in Wales Brothers, a ranching corporation, as follows:

To her nephew, Joe Johnson 48 shares

To her nephew, Edward Wales 37 shares

To her grandnephew, Hal Hansen 62 shares

However, on December 27, 1976, Anita gave 42 shares of her Wales stock to Joe Johnson and one share a piece to Ed Wales and Hal Hansen. Anita never changed or revoked her will, so that at the date of her death, it still purported to distribute 147 shares though she possessed only 103.

In March. 1985, Hal Hansen peititioned the District Court for a declaration of the legal effect of Anita’s will. Central to Hensen’s petition was the question of how the remaining 103 shares were to be distributed. Hansen argued that each devisee was entitled to receive from the estate the balance of the total number of shares provided by the terms of the will. Joe Johnson and Ed Wales, on the other hand, argued that each of the devisees was entitled to a pro rata portion of the remaining shares.

The District Court held for Johnson and Wales, awarding each devisee a proportionate number of the remaining 103 shares in accordance with the percentages originally listed in the will. Thus, the court awarded Hal Hansen 42.2%, or 43.5 shares, of the remaining 103 shares; Joe Johnson was awarded 32.6%, or 33.6 shares; and Ed Wales received 25.2% or 25.9 shares. Hal Hansen now appeals. We affirm the result.

Initially, we find that this devise was a “specific” devise as opposed to a “general” devise. As a rule, a general devise is one which, in accordance with the terms of the wil, may be satisfied out of the testator’s estate generally and is not charged upon any specific property. A general devise does not attempt to dispose of any specific article of property, but may be satisfied out of the general assets of the testator’s estate. See 6 Page on Wills, Sec. 48.2 (BoweParker ed. 1962).

A specific devise, on the other hand, is a gift of a specific thing, or of some particular portion of the testator’s estate, which is differentiated from the balance of the testator’s property. A specific devise differs from a general devise in that it is not intended by the testator to be paid out of the estate generally, but is to be paid solely by delivering to the devisee that specific article given by will. 6 Page on Wills, Section 48.3, (Bowe-Parker ed. 1962).

In case of doubt as to the testator’s intention, courts have generally presumed that the testator intended to give a general devise rather than ¿^specific one. To find a specific legacy, there must generally exist some indication of intent.

In this case^ Anita Wales passed in her will, “my 147 shares of the stock of Wales Brothers.” (Emphasis added.) We find that inclusion of the word “my”in a devise indicates sufficient intention to render that devise specific rather than general. “A reference to the securities as belonging to the testator, a reference which may be made by the use of such word as ‘my.,’ . . . shows that such [devise] is specific.” 6 Page on Wills, Section 48.6 (Bowe-Parker ed. 1962). Accord Estate of Cullen (N.Y. 1985), 127 Misc. 2d 105, 485 N.Y.S.2d 454, 460; Matter of Will of Mahoney (N.Y. 1976), 88 Misc.2d 105, 388 N.Y.S.2d 853, 855; In re Noble’s Estate (1935), 141 Kan. 432, 41 P.2d 1021, 1025.

The issue thus becomes what effect does an inter vivos gift of stock have on a specific devise of that same stock. We find that because this devise is specific, Section 72-2-517(l)(a), MCA, is applicable. This section states:

“(1) If a testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
“(a) as much of the devised securities as is a part of the estate at the time of the testator’s death; ...”

In the present case, we find that Anita Wales intended a specific devise of certain secruities rather than the equivalent value thereof. Thus, the parties — the specific devisees — are entitled to only as much of the devised securities as remained in Anita’s estate at the date of her death — 103 shares.

The remaining question is how these 103 shares are to be distributed. Section 72-2-517(1)(a) proffers no guidance on division of the remaining devised securities among multiple specific devisees. Appellant contends that this section requires that Anita’s inter vivos gift to each devisee be subtracted from her gift of stock in her will. Put another way, appellant argues that Joe Johnson was devised 48 shares of Anita’s Wales Brothers stock and was gifted 42 of those shares during Anita’s lifetime. Thus, appellant continues, Johnson is entitled to only those six shares which remain a part of his devise at the time of Anita’s death. This, appellant concludes, represents the portion of his individual devise which remained at the date of Anita’s death.

We cannot agree with the appellant’s argument. Such a reading of this of this statute would, in effect, constitute a partial ademption by satisfaction. Anita’s devise of stock to each of the three parties would be partially adeemed to the extent of her inter vivos gifts.

Such a result, however, would be directly contrary to Section 72-2-515, MCA, the section covering ademption by satisfaction. This section states, in pertinent part:

“Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person, in whole or in part, only if the will provides for deduction of the lifetime gift or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise or the devisee acknowledges in writing that the gift is in satisfaction . . .”

Thus, an inter vivos gift will be deducted from a devise only if such an intent is expressed in the will or in a contemporaneous writing. Because no such intent or writing was here shown, we will not subtract the inter vivos gifts from the devise.

We feel that a better reading would be achieved by distributing the remaining 103 shares on a proportional basis consistent with the percentages listed in the will.

In sum, we hold that this devise was a specific devise and that the specific devisees are entitled to only those 103 shares remaining in the estate at the date of Anita’s death. The inter vivos gifts are of no effect; it is as if those 44 shares had been given to a third party. The remaining 103 shares are to be distributed on a proportional basis consistent with the percentages listed in the will.

We affirm the result reached below.

MR. JUSTICES GULBRANDSON, HUNT, SHEEHY and MORRISON concur.

In case of doubt as to the testator’s intention, courts have generally presumed that the testator intended to give a general devise rather than a specific one. To find a specific devise, there must generally exist some indication of intent.

13] In this case, Anita Wales passed in her will, “my 147 shares of the stock of Wales Brothers.” (Emphasis added.) We find that inclusion of the word “my” in a devise indicates sufficient intention to render that devise specific rather than general. “A reference to the securities as belonging to the testator, a reference which may be made by the use of such word as ‘my,’ . . . shows that such [devise] is specific.” 6 Page on Wills, Section 48.6 (Bowe-Parker ed. 1962). Accord Estate of Cullen (N.Y. 1985), 127 Misc. 2d 105, 485 N.Y.S.2d 454,460; Matter of Will of Mahoney (N.Y. 1976), 88 Misc.2d 105, 388 N.Y.S.2d 853, 855; In re Noble’s Estate (1935), 141 Kan. 432, 41 P.2d 1021, 1025.

The issue thus becomes what effect does an inter vivos gift of stock

I

Place this sticker in Vol. 223 Montana Reports at page 517.

        FOOTNOTES

      1. Traditionally, a “devise” only referred to a dispostion by will of real property. A disposition by will of stock or other personal property was typically called a “legacy.” In Montana, however, this distinction has been erased. Section 72-1-103(8), MCA, treats similarly devise and legacy. Fro the sake of consistency with the statutory language, we will use “devise” throughout this opinion.

      In case of doubt as to the testator’s intention, courts have generally presumed that the testator intended to give a general devise rather than a specific one. To find a specific devise, there must generally exist some indication of intent.
    13] In this case, Anita Wales passed in her will, “my 147 shares of the stock of Wales Brothers.” (Emphasis added.) We find that inclusion of the word “my” in a devise indicates sufficient intention to render that devise specific rather than general. “A reference to the securities as belonging to the testator, a reference which may be made by the use of such word as ‘my,’ . . . shows that such [devise] is specific.” 6 Page on Wills, Section 48.6 (Bowe-Parker ed. 1962). Accord Estate of Cullen (N.Y. 1985), 127 Misc. 2d 105, 485 N.Y.S.2d 454,460; Matter of Will of Mahoney (N.Y. 1976), 88 Misc.2d 105, 388 N.Y.S.2d 853, 855; In re Noble’s Estate (1935), 141 Kan. 432, 41 P.2d 1021, 1025.
    The issue thus becomes what effect does an inter vivos gift of stock
    I

      Place this sticker in Vol. 223 Montana Reports at page 517.


text:
    KENNETH REINTSMA, Ronald Haverlandt, et al., Plaintiffs and Respondents, v. ALBERT LAWSON and Dana Yatsko, Defendants and Appellants.
    No. 86-155.
    Submitted on Briefs July 31, 1986.
    Decided Oct. 30, 1986.
    Rehearing Denied Dec. 9, 1986.
    727 P.2d 1323.

      Cotter & Cotter, Patricia O’Brien Cotter, Great Falls, for defendants and appellants.
    Jardine, Stephenson, Blewett & Weaver, K. Dale Schwanke, Great Falls, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court of the Eighth Judicial District in and for the County of Cascade, Montana, granting plaintiffs injunctive relief and compensatory and punitive damages. We affirm in part, reverse in part and remand.

The plaintiffs and defendant Albert Lawson are all property owners in the Cooper Valley Estate subdivision located in Cascade County. This subdivision is a residential development, apparently comprised only of multi-acre lots designed to afford a convenient, rustic environment in which to live. To this end, each lot is subject to a number of restrictive covenants designed to maintain, as much as possible, the area’s pristine state. The covenants expressly prohibit comprehensive logging operations.

In June, 1984, Lawson sought and obtained a consent certificate from the Cooper Valley Owners Association allowing him to remove from his property diseased and over-aged timber.

Plaintiffs, however, ultimately concluded that Lawson was removing far more than simply diseased and over-mature timber and so eventually filed this action in District Court. They sought as relief a permanent injunction enjoining defendant from conducting further logging operations within the development, compensatory damages for the diminution in value of their property, punitive damages and costs.

Lawson counterclaimed, alleging generally that in pursuing this litigation, plaintiffs were converting for their own use the assets of Cooper Valley Estates, Incorporated, a corporation mostly comprised of the subdivision’s property owners., Lawson also claimed that plaintiffs’ suit was frivolous and sought punitive damages.

The District Court held a bench trial in March, 1985. Though the record is incomplete, plaintiffs evidently withdrew their prayer for compensatory damages at the conclusion of trial.

On November 7, 1985, the court entered its findings of fact and conclusions of law. Therein, the court found that Lawson’s activities went beyond the scope of the consent certificate and had violated the restrictive covenants. The court concluded that Lawson was permanently enjoined from conducting any further logging operations within the development. The court further found that Lawson was responsible for rehabilitating his property, the cost of which was at a minimum $30,000, and that the counterclaims brought by Lawson were without merit. Finally, the court directed that the plaintiffs should recover an award of costs and attorneys fees and instructed plaintiffs to submit an affidavit detailing these fees.

Believing the court’s entry of its findings and conclusions constituted entry of judgment, Lawson filed, on November 21, a motion to amend the court’s findings or for a new trial, In support of his motion, Lawson filed his own affidavit which indicated that between the time the trial was held in March and the time the court entered its findings and conclusions in November, he had spent over $43,000 on the rehabilitation of his own property.

Before any action was taken on this motion, however, the court issued on November 27, 1985, a “Judgment Entered Pursuant to Court’s Findings of Fact and Conclusions of Law of November 7, 1985.” Here, “the court, in addition to awarding plaintiffs’ injunctive relief, awarded plaintiffs $30,000 in compensatory damages and stated that a hearing would be held to determine any “rights to attorney’s fees.

Both parties filed motions to amend this judgment. On December 6, 1985, plaintiffs filed a memorandum in opposition to Lawson’s motion to amend or for a new trial which he had earlier filed on November 21. Plaintiffs further filed their own motion to amend the court’s findings, requesting both that the court award plaintiffs punitive damages and that it award plaintiffs attorneys fees and costs. Plaintiffs additionally filed a motion to strike Lawson’s affidavit filed November 2i and, finally, filed affidavits detailing their attorney’s fees and costs.

On December 9, Lawson filed a supplementary motion for’ new trial.

On December 13, 1985, the District Court held a hearing on the various motions and pleadings filed by the parties. Six days later it issued its order. The court, reiterating its earlier finding that Lawson’s counterclaims were without merit, held that plaintiffs were entitled to punitive damages and awarded such damages “by way of compensating the plaintiff for their attorney’s fees and costs incurred in the proceedings.” The court, however, awarded only one-half of plaintiffs’ requested $25,000 attorney”s fees, so that the punitive damage award was limited to $12,500, plus plaintiffs’ casts.

Finally, on January 6, 1986, the District Court entered its “Final Judgment.” In this judgment, the court first restated that Lawson was enjoined from any further logging operations within the Cooper Valley Estates subdivision. The court then awarded plaintiffs’ damages totaling over $46,000: $30,000 in compensatory damages; $12,500 attorney’s fees; and $4,190.49 in costs.

Lawson now appeals the court’s entry of its November 27 judgment and its award of compensatory and punitive damages; he does not appeal the adequacy of the court’s findings of fact and conclusions of law entered November 7.

Plaintiffs cross-appeal the court’s award of only one — half of the attorney’s fees sought.

I

Appellant first argues that the District Court abused its discretion by substituting its initial November 7 judgment with its subsequent, altered judgment of November 27, This argument is of course based upon the premise that entry of the November 7 findings and conclusions constituted entry of a judgment, We disagree.

As noted, in its November 7 findings and conclusions, the court found that Lawson was responsible for the rehabilitation of his property, the cost of which was at least $30,000. The court further concluded as a matter of law that Lawson was permanently enjoined from conducting any further logging within the area. The findings and conclusions ended with the sentence, ‘”Let judgment be entered accordingly.” On November 8, the clerk of court entered in the judgment docket the court’s findings and conclusions.

Then on November 27, the court issued its judgment entered pursuant to its findings and conclusions. There, the court, in addition to enjoining defendant’s further logging operations, awarded plaintiffs $30,000 compensatory damages. Appellant contends that because the November 7 findings and conclusions were properly entered by the clerk, a proper judgment had been entered and the District Court was thereafter powerless to enter its November 27 judgment which materially altered its November 7 judgment. Appellant asserts he suffered prejudice because the District Court did not award plaintiffs compensatory damages under its first judgment, but did under its second. This, appellant concludes, constituted abuse of discretion where the plaintiffs had not filed any motion to amend the November 7 judgment.

Appellant’s argument fails from the outset. This Court has long held that findings of fact and conclusions of law do not constitute the judgment, but merely form the basis upon which the judgments are subsequently to be rendered. Woodward v. Perkins (1946), 119 Mont. 11, 15, 171 P.2d 997, 998, Conway v. Fabian (1939), 108 Mont. 287, 303, 89 P.2d 1022, 1028, Galiger v. McNulty (1927), 80 Mont. 339, 351, 260 P. 401, 403.

In Woodward, supra, the District Court, as in our case, filed its findings of fact and conclusions of law prior to its entry of formal judgment. Appellant later appealed, inter alia, from a “decision” of the District Court, “set forth in [its] Findings of Fact, and Conclusions of Law. . .” In dismissing that portion of the appeal, this Court stated that the decision of the District Court based upon its findings and conclusions did not constitute a judgment and therefore was not appealable. Woodward, 71 P.2d at 98. Accord, Turnbull v. Brown (1953), 126 Mont. 548, 254 P.2d 1085. (Adair, C.J., specially concurring.)

Likewise, entry in our case of the court’s findings and conclusions did not constitute a judgment, notwithstanding the statement that judgment be entered.

II

Appellant’s second argument is that the District Court abused its discretion by awarding plaintiffs compensatory damages. Appellant specifically asserts that the curt erred by awarding compensatory damages when plaintiffs themselves dropped their prayer for such an award.

We agree. We cannot affirm an award of compensatory damages where plaintiffs themselves dropped their demand for such an award. Appellant failed to provide us with a transcript of the proceedings below so that we are unable to determine whether this award is supported by sufficient, credible evidence. Typically, such a failure would work against appellant. Here, however, plaintiffs conceded in a post-trial motion that they were unable to provide sufficient evidence to justify a compensatory damage award:

“Counsel for the plaintiffs spent sometime trying to develop this issue prior to trial and finally determined that it was not worthwhile because appropriate proof could not be submitted.’ ”

We therefore find the District Court erred in awarding plaintiffs compensatory damages and vacate this award.

III

Next, appellant contests the District Court’s award of punitive damages. In its December 19 “Award of Attorney Fees,” the court awarded plaintiffs punitive damages by way of compensating plaintiffs for one-half their attorney’s fees plus costs.

Without intending to express any opinion on the propriety of a punitive damage award in general, we are not persuaded that an award of attorney’s fees and costs, entered under the guise of punitive damages, is appropriate in this case. We recognize, however, that under the circumstances of this case, a punitive damage award may be proper. We therefore vacate this award, but remand this issue to the District court for its determination of whether a proper punitive damage award is warranted.

IV

Finally, we note that the District Court stated in its findings and conclusions that Lawson was responsible for the rehabilitation of his properties and had estimated the cost to be at least $30,000. Lawson, prior to entry of the court’s November 27 judgment, had filed an affidavit stating that he had already expended approximately $43,000 in the rehabilitation of his properties. A review of the pre-trial proceedings and docket entries reflects that the motion of plaintiffs to strike Lawson’s affidavit was never officially denied. We therefore remand this issue with instructions to determine whether Lawson has sufficiently rehabilitated his property.

In conclusion, we approve the District Court’s filing of its November 27 judgment, but reverse the court’s award of compensatory damages. We vacate and remand the court’s award of punitive damages. Upon remand, we instruct the District Court to determine whether appellant has satisfactorily rehabilitated his property.

MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    RUTH E. REISER, Plaintiff and Appellant, v. DR. WILLIAM S. PRUNTY, M.D., and Bozeman Deaconess Foundation, d/b/a Bozeman Deaconess Hospital, Defendants and Respondents.
    No. 86-297.
    Submitted Sept. 18, 1986.
    Decided Oct. 30, 1986.
    727 P.2d 538.

      Paul B. Smith, Boulder, for plaintiff and appellant.
    Crowley Law Firm, Bruce R. Toole, Billings, Berg, Coil, Stokes & Tollefsen, Ben Berg, Jr., Bozeman, for defendants and respondents.
   MR. JUSTICE SHEEHY

Plaintiff Ruth Reiser appeals an order issued by the District Court of the Eighteenth Judicial District, Gallatin County, granting defendants Bozeman Deaconess Hospital and Dr. William Prunty’s motions for summary judgment and denying Ruth Reiser’s motion for partial summary judgment on the issue of liability for violations of Montana’s mental health code, Section 53-21-101, et seq., MCA (1979). We affirm.

The issue raised on appeal is whether the District Court erred in granting Dr. William Prunty’s and Bozeman Deaconess Hospital’s motions for summary judgment and denying Ruth Reiser’s motion for partial summary judgment.

Mrs. Reiser’s action against the hospital and Dr. Prunty arises out of involuntary commitment proceedings initiated by her family and the county attorney after Mrs. Reiser threatened to commit suicide. The facts indicate that in the early morning hours of November 3, around 3:00 a.m., and after drinking a bottle of wine, Mrs. Reiser telephoned Dr. Fred Bahnson, a physician who had been treating Mrs. Reiser for ear problems, and told him that she was drunk, unable to face the pain of her ear condition, and considering killing herself. Dr. Bahnson called Phyllis Rigg, Reiser’s daughter, who called the Gallatin County Sheriff’s office. Dr. Bahnson also contacted Mrs. Reiser’s family physician, Dr. Hathaway, whom Mrs. Reiser had called prior to calling Dr. Bahnson. Dr. Hathaway told Dr. Bahnson that he knew little about Mrs. Reiser’s mental condition, but suspected that she was very disturbed.

Prior to taking action the sheriff’s office personnel spoke to Dr. Hathaway and confirmed that he had stated he felt Mrs. Reiser was disturbed. In that conversation, Dr. Hathaway suggested a call to Dr. William Prunty, a psychiatrist who had at one time treated Mrs. Reiser. Dr. Prunty reported that he had not seen Mrs. Reiser in over five years and and could not form an opinion about her current mental condition.

Acting on this information, Deputy Cashell, who had come to the Reiser residence a month before for an earlier suicide attempt, met Mrs. Reiser’s son, Ken Reiser, and daughter, Phyllis Rigg, at Mrs. Reiser’s home. Before her brother arrived, Phyllis Rigg explained to Deputy Cashell and another officer on the scene that her mother had been very depressed, barricaded in her house for a week and that she had a loaded shotgun under her bed. When Ken Reiser arrived with a key to the house, Deputy Cashell telephoned Mrs. Reiser through the dispatcher in an attempt to get her to come out and talk to the officers. Although the telephone was answered, no one was thought to be on the receiver. Deputy Cashell then rang the doorbell to have Mrs. Reiser answer the front door. Mrs. Reiser did not answer. Using Ken Reiser’s house key the officers entered the house where they met and identified themselves to Mrs. Reiser, who became very angry, yelling that she had not called anyone for help, that it was her life and she could do what she wanted with it and that she had a loaded gun and would shoot the officers if they entered her home. Deputy Cashell then asked Ken Reiser to come into the home and see if he could talk to his mother. When he was unable to talk to her, he requested that his sister be brought in. The police report indicates that as Ken and Phyllis talked to their mother the mother became very abusive toward her children and stated several times that she wanted everyone to leave and that if she wanted to die, it was her privilege. She also repeatedly stated that she had a shotgun in the house and would kill everyone in the house. During the balance of the confrontation, Mrs. Reiser was across the living room, approximately 30 feet from the entryway where the officers stood. When Ken and Phyllis entered, they approached their mother, and Ken attempted to get behind her to block her way to the bedroom, where he knew she kept the shotgun. Before he was able to do so, she bolted. Deputy Cashell caught her, and with the assistance of the other officer was able to place her in a living room chair. While the officers were scuffling with his mother, Ken Reiser went into the bedroom to retrieve and unload the shotgun, which he placed on the floor in the hallway. Mrs. Reiser was then taken to Bozeman Deaconess Hospital by ambulance. She was admitted to the hospital at 4:30 a.m. on November 3 by Dr. Hathaway, Ruth Reiser’s general physician.

Dr. Prunty testified that around 4:00 a.m. on November 3, he received a call from Dr. Hathaway informing him that Ruth Reiser was suicidal, was being admitted to the hospital, and that Dr. Hathaway was placing her in a “secure” room for her own safety. Dr. Hathaway indicated that he wanted Dr. Prunty to take over caring for Mrs. Reiser. Dr. Prunty then called the nurses on duty and arrived at the hospital around 5:30 a.m. He attempted to meet with Mrs. Reiser, but she was very uncooperative and refused to talk to him. Dr. Prunty then called Phyllis Rigg, who told him that her mother, Mrs. Reiser, had suffered depression and had on separate occasions threatened and attempted to commit suicide. Phyllis also shared a long list of other troubles her mother had been experiencing.

Dr. Prunty explained the involuntary commitment procedure and was told that the daughter would see the county attorney without delay. Based on all of the information he had received and Mrs. Reiser’s upset state, Dr. Prunty continued her confinement in the secure room and prescribed a sedative for her. Later in the afternoon of November 3, Dr. Prunty confirmed the daughter had requested the county attorney to initiate involuntary commitment proceedings. Dr. Prunty saw Mrs. Reiser again that afternoon and found her more controlled, though angry at her confinement. She denied much of her daughter’s information and requested medical care for other ailments, which was arranged. At that time, Dr. Prunty told her that her daughter was planning to institute commitment proceedings. By 5:00 p.m. on November 3, Dr. Prunty was able to confirm that deputy county attorney Robert Throssell had filed a petition for involuntary commitment and an order had been signed by the District Court judge finding probable cause that Mrs. Reiser was seriously mentally ill.

Although the district judge signed the order on November 3, the initial hearing on the commitment proceedings was set for Wednesday, November 5. This was because Tuesday, November 4, was a national and state election day. The next regular business day was the 5th.

Once the commitment proceeding was underway, the county attorney’s office notified Dr. Prunty and the hospital that Mrs. Reiser should be held at the hospital pending further notice. Sheriff’s deputies arrived at the hospital at about 12:30 p.m. on Wednesday, November 5, to take Mrs. Reiser to the commitment hearing. Mrs. Reiser did not return to the hospital. She was released by the court on November 5 to the care of a friend. The order releasing Mrs. Reiser also appointed Dr. Frank Seitz, a psychologist, as the court-appointed professional required to examine Mrs. Reiser and report to the court on her condition. Dr. Seitz evaluated Mrs. Reiser and found that, at the time of his evaluation, Mrs. Reiser was not suicidal. Based on Dr. Seitz’s report, the county attorney’s office decided to dismiss the petition for involuntary commitment, and filed a motion to that effect on November 7. The motion was granted by the District Court that same day.

Mrs. Reiser brought this action in Gallatin County District Court seeking damages against Dr. Prunty and the Bozeman Deaconess Hospital for alleged violations of Montana’s mental health code. She also sought recovery on the basis of the common law theories of assault, battery and false imprisonment.

Following discovery, the issue of liability for the mental health code violations was submitted to the District Court for adjudication on cross-motions for summary judgment. The motions of Dr. Prunty and the hospital were granted, and the plaintiffs motion for partial summary judgment was denied.

The issue raised by Mrs. Reiser on appeal encompasses an array of subissues. Each will be addressed in turn.

The first subissue involves appellant’s contention that the District Court’s order made a number of factual assumptions in the hospital’s and Dr. Prunty’s favor that require resolution by a trier of fact, hence summary judgment was improper. Mrs. Reiser’s first contention is that she never threatened suicide in her 3:00 a.m. telephone call to Dr. Bahnson. She argues that the District Court erred in assuming that the call was a threat. The District Court erred, she contends, because it failed to apply the rule established in Cereck v. Albertson’s, Inc. (1981) that “all reasonable inferences drawn from the offered proof are to be drawn in favor of the party opposing summary judgment.” 195 Mont. 409, 413, 637 P.2d 508, 511. Mrs. Reiser maintains that the reasonable inference to be drawn from her 3:00 a.m. call was that she was in pain and depressed, not that she was intending to kill herself. This Court cannot accept this contention as “reasonable” in light of the facts. It would not be “reasonable” to assume that a person in pain, who had been drinking, who had been very depressed for a week prior to the threat and who had a history of attempted suicide, including an attempt less than two months before the November 3 threat, was not threatening suicide. Mrs. Reiser admits that she made several calls at 3:00 a.m. and that she told Dr. Bahnson “. . .1 might as well kill myself.” Dr. Bahnson was aware of the above-mentioned facts. The sheriff’s office knew of Mrs. Reiser’s September 25, 1980 attempt at suicide. The only “reasonable” inference the District Court could draw is that Mrs. Reiser threatened suicide. The District of Columbia Circuit Court in addressing an issue where there was conflict concerning interpretation of the facts and the ultimate conclusion to be drawn from them but there was none as to the facts themselves, stated:

“Conflict concerning the ultimate and decisive conclusion to be drawn from undisputed facts does not prevent rendition of a summary judgment, when that conclusion is one to be drawn by the court. The court had before it all the facts which formal trial would have produced. Going through the motions of trial would have been futile.”

Fox v. Johnson & Wimsatt (D.C. Cir. 1942), 127 F.2d 729, 737. Further support for our ruling that there was no genuine issue of material fact precluding the District Court’s order of summary judgment comes from the language of First National Bank Co. v. Insurance Company (7th Cir. 1979), 606 F.2d 760, 767, where it is stated:

“Rule 56 does not provide a method by which the presence of an issue of fact can be determined; therefore, each case depends on the facts peculiar to it. A district court under the rule is not authorized to try issues of fact, but has the power to penetrate the pleadings and look at any evidential source to determine whether there is an issue of fact to be tried.”

Mrs. Reiser’s assertion that there is a genuine issue of fact as to whether her 3:00 a.m. call was a suicide threat is entirely without support in the record. The only interpretation and conclusion that could be drawn from the facts is that Mrs. Reiser was threatening suicide. Hence there was no genuine issue of material fact to preclude the District Court’s order of summary judgment.

The next subissues appealed are whether Dr. Prunty and the hospital fulfilled their statutory obligations under Section 53-21-115, 53-21-120, 53-21-129 and 53-21-146, MCA.

Mrs. Reiser’s confinement in Bozeman Deaconess Hospital from November 3 to November 5 took place under the provisions of Section 53-21-129, MCA, Montana’s emergency detention statute. In November, 1980, the statute read as follows:

“(1) When an emergency situation exists, a peace officer may take any person who appears to be seriously mentally ill and as a result of serious mental illness to be a danger to others or to himself into custody only for sufficient time to contact a professional person for emergency evaluation. If possible, a professional person should be called prior to taking the person into custody.
“(2) If the professional person agrees that the person detained appears to be seriously mentally ill and that an emergency situation exists, then the person may be detained and treated until the next regular business day. At that time, the professional person shall release the detained person or file his findings with the county attorney who, if he determines probable cause to exist, shall file the petition provided for in 53-21-121 through 53-21-126 in the county of the respondent’s residence. In either case, the professional person shall file a report with the court explaining his actions.”

Sections 53-21-129(1) and (2), MCA.

Subsection (2) of the statute is most relevant to the facts before this Court. It sets forth four criteria guiding the conduct of a “professional person” in the care and evaluation of the seriously mentally ill:

“1. Once a person is brought into custody, that person may not be detained unless a professional person concludes that the person appears to be seriously mentally ill and that an emergency situation exists with respect to that person’s condition.
“2. If the professional person concludes that these factors are present, then the person may be detained and treated until the next regular business day following this determination.
“3. On the next regular business day, the professional person is obliged to either release the detained person or file appropriate findings with the county attorney, who may then seek involuntary commitment of the detainee pursuant to other provisions of the Mental Health Code.
“4. Whether the professional person reports his findings to the county attorney or releases the detainee, the professional person is required to file a report with the district court explaining his actions with respect to the detainee.”

None of the parties dispute this basic characterization of the legislative standards guiding the conduct of a professional person in the care and evaluation of a seriously mentally ill person. Mrs. Reiser’s claim is that Dr. Prunty did not satisfy any of these statutory duties, and in particular that he did not determine an “emergency situation” existed warranting her confinement.

Section 53-21-102(4), MCA, defines an emergency situation as “a situation in which any person is in imminent danger of death or serious bodily harm from the activity of a person who appears to be seriously mentally ill.” Seriously mentally ill means “suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof or which has deprived the person afflicted of the ability to protect his life or health.” Section 53-21-102(14), MCA.

An emergency situation clearly existed in this case, and the information necessary for Dr. Prunty to draw this conclusion was available when he made the decision to detain Mrs. Reiser. The ambulance brought Mrs. Reiser to the hospital around 4:30 a.m. on the morning of November 3. By 6:00 a.m. that same morning. Dr. Prunty had talked to Dr. Hathaway and the sheriffs office personnel and had learned that Mrs. Reiser had not only threatened to kill herself, but others as well. He had tried to talk with Mrs. Reiser and found her to be angry and uncommunicative. He had been informed that she had been abusive toward the nurses. Before 8:00 a.m. he had talked with Phyllis Rigg and learned that Mrs. Reiser had made a suicide attempt within the last two months and that she had been very depressed for the week before November 3.

It is also clear from these facts that the District Court did not err in supporting Dr. Prunty’s conclusion that Mrs. Reiser was seriously mentally ill and was a threat to her own life. Dr. Prunty said his medical judgment was not based on a single fact or observation: “There’s no one thing in most medical situations that point to a specific diagnosis and treatment. It’s a group of bits of information and you put them together.” Mrs. Reiser takes issue with how Dr. Prunty reached his conclusion that she had been suicidal, in that she never made an attempt or threat while under his care.

It must be noted that Dr. Prunty’s alleged violation of accepted medical practice becomes a jury question only if Mrs. Reiser presents an expert witness who has a contrary medical view of the same facts. Mrs. Reiser presented no such witness. Under the law as expressed in Llera v. Wisner (1976) 171 Mont. 254, 557 P.2d 805, and Collins v. Itoh (1972), 160 Mont. 461, 503 P.2d 36 summary judgment was properly granted to Dr. Prunty on the question of his medical judgment.

Further, In The Matter of F.B. (1980), 189 Mont. 229, 615 P.2d 867, 869 interprets the statutory language “imminent threat of self-inflicted injury or injury to others” to mean:

“Threat is not a certainty. The law requires only proof beyond a reasonable doubt that the threat of future injury presently exists and that the threat is imminent, that is, impending, likely to occur at any moment. If beyond a reasonable doubt there is a present indication of probable physical injury which is likely to occur at any moment or in the immediate future, and if this injury would be a result of a mental disorder, then the person suffering from such mental disorder is seriously mentally ill within the meaning of the act.”

In describing the behavior of a mentally ill person this Court explained that the behavior need not be a completed act. “An attempt or threat, or even a failure to act may suffice.” Id. “Most certainly the legislature never intended that the blood of innocent people must first be shed before the statutory definition of ‘overt act’ has been satisfied.” In the Matter of J.B. (1985), [217 Mont. 504], 705 P.2d 598. In the instant case it is clear from the chronology of events that there was sufficient evidence to support both the hospital’s and Dr. Prunty’s decision to detain Mrs. Reiser as a threat to herself and others. Mrs. Reiser contends that:

“Dr. Prunty was detaining Ruth Reiser not because he felt that she continued to pose an imminent threat of death or serious bodily injury to herself or to others but merely because he felt she had posed a suicide threat to herself before she came to the hospital and he simply would hold and treat her while Phyllis Rigg, her daughter, and the county attorney proceeded with an involuntary commitment proceeding.”

Mrs. Reiser also contends that the definition of emergency situation requires that an imminent danger of death or serious bodily harm be continuous for the emergency situation to exist, citing In the Matter of Alan Ray Shennum (Mont. 1984), [210 Mont. 442,] 684 P.2d 1073, 41 St.Rep. 1148. In Shennum, Missoula officers briefly detained and disarmed a man who attended a Missoula City Council meeting with a loaded and cocked pistol. He was released without his weapon but arrested the next day when he went to the City Police headquarters to reclaim his gun. He was seen by a psychiatrist and moved to a hospital room where the door was kept open, leaving him free to wander about in an open area nearby. This Court held that there was no emergency on the day Shennum was arrested and detained, and the professional person made no findings that an emergency situation existed. These faults do not exist in this case. Mrs. Reiser was detained at the scene of her threatened suicide. She was seen by a psychiatrist within two hours who found she was seriously mentally ill and a threat to her own life. Involuntary commitment proceedings were instituted at 8:00 a.m. that same morning. An emergency situation existed, although Dr. Prunty never stated so in so many words. There is no statutory requirement that in an emergency situation the imminent danger of death or injury continue beyond detention. In any event, Mrs. Reiser’s behavior after detention, insofar as she was abusive toward Dr. Prunty and the nurses on admittance, suggests that she remained in a destructive mood once detained, if only for a portion of the day.

In sum, the requirements of Section 53-21-129(2), MCA, were substantially met. Dr. Prunty, a professional, concluded that Mrs. Reiser was seriously mentally ill and that an emergency situation existed. His conclusion permitted the lawful detention until the next regular business day. In this case, the next regular business day was November 5, as November 4 was a legal holiday. The District Court judge was advised of Mrs. Reiser’s detention status on November 3, when he found probable cause for holding a commitment hearing. The hearing was held on November 5, and Mrs. Reiser was released to the care of friends at her initial appearance.

By 3:00 p.m. on November 3, Dr. Prunty had shared his findings with the assistant county attorney and stated that he felt an evaluation for commitment was in order and that he felt she was seriously mentally ill and a danger to herself.

Perhaps the only material shortcoming in following the statutory guidelines of Section 53-21-129(2), MCA is Dr. Prunty’s failure to file his findings with the District Court. However, there is no basis for liability on these grounds. The failure to file a report does not make Mrs. Reiser’s detention unlawful, hence there are no grounds for reversal.

Mrs. Reiser next asserts that Dr. Prunty and the hospital violated duties owed to her to follow the prescribed statutory standards for mental health facilities set forth under Sections 53-21-146, -115 and -120, MCA.

Section 53-21-146 states:

“Right to be free from physical restraint and isolation. Patients have a right to be free from physical restraint and isolation. Except for emergency situations in which it is likely that patients could harm themselves or others and in which less restrictive means of restraint are not feasible, patients may be physically restrained or placed in isolation only on a professional person’s written order which explains the rationale for such action.”

This section provides a rather significant exception making it inapplicable to the detention of Mrs. Reiser. Section 53-21-146 is not intended to afford protections to people held under the emergency detention statutes. Rather it is intended to protect patients, people who are “committed by the court for treatment for any period of time . . .” Section 53-21-102(8), MCA. Mrs. Reiser was detained prior to a court determination that she was seriously mentally ill, hence the statutory restrictions do not apply.

Mrs. Reiser next maintains that Dr. Prunty violated her rights under Section 53-21-120. This section provides that a person detained under the emergency detention statute be detained in the least restrictive environment required to protect that person’s life and physical safety. By its very nature this concept involves medical connotations outside the scope of knowledge of the layperson. What constitutes a “least restrictive environment” is a judgment that can only be made by an expert with the opportunity to consider all the facts of the case in light of what would be reasonable in similar circumstances. There is no evidence in the record to suggest that Mrs. Reiser was placed in other than the least restrictive environment. Her own lay observations are insufficient to defeat the District Court’s award of summary judgment to Dr, Prunty and the hospital.

Mrs. Reiser also argues that the hospital was negligent for failing to agree in writing to her detainment. This claim is based on Section 53-21-120(2), MCA, which states in part: “No person may be detained in any hospital or other medical facility which is not a mental health facility unless such hospital or facility has agreed in writing to admit such persons.” The parties agree that the hospital is not a mental health facility under the statutory definition. Mrs. Reiser, however, failed to provide evidence to support a prima facie case of negligence on this allegation. This provision of the statutes is not to create a bias of liability, but to aid in proof that the hospital did in fact admit the patient. Here the hospital does not deny admitting the patient, and the purpose of the statutory provision is not thereby thwarted. Liability in this case cannot be based on the provisions of Section 53-21-120(2), MCA.

Mrs. Reiser next raises the argument that the District Court erred because it failed to find Dr. Prunty and the hospital in violation of Sections 53-21-114 and -115(10) because they did not inform her she had the right to refuse the sedative administered on November 4. A close examination of the record reveals that the medication referred to was in fact administered at Mrs. Reiser’s request. The nurse’s notes for November 4 at 1600 to 2300 hours (4:00 p.m. to 11:00 p.m.) state “rambling speech, requesting medication to slow thoughts down.” Dr. Prunty ordered the sedative at 2200 hours (10:00 p.m.), apparently in response to Mrs. Reiser’s request.

There is no evidence in the record that Mrs. Reiser objected to the medication. Further, the language of Section 53-21-119, MCA provides that a person may waive her rights under the mental health code. It must be presumed from the evidence that when she requested a sedative, or at least did not refuse one, she waived her right to refuse the medication administered. Further, Mrs. Reiser offers no evidence that failure to notify her of her right to refuse the medication resulted in any actionable injury to her.

Finally, Mrs. Reiser contends that the hospital and Dr. Prunty had a responsibility, under the terms of Section 53-21-115, to protect her constitutional right to vote. This right, she maintains, was unconstitutionally denied because of her unlawful detention. We find that this argument has no merit in light of our finding that her detention was lawfully justified under the emergency detention statutes.

In its opinion granting summary judgment to the hospital and Dr. Prunty and denying Mrs. Reiser’s motion, the District Court wrote “while we must be ever vigilant of the rights and protections afforded to the seriously mentally ill, we must also guard against turning the mental health laws into a trap for the well-intentioned persons who are doing their best to help the afflicted in an emergency situation. Perhaps Ruth Reiser is alive today because of the quick actions of the deputy sheriff, her daughter, Drs. Bahnson, Hathaway and Prunty, the hospital staff, and deputy county attorney Throssell. There is no basis, under the facts of this case, to turn the statutes against them.” We agree with the logic of the District Court’s conclusion. Therefore, we affirm the District Court’s actions.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, WEBER, GULBRANDSON and HUNT.

      . A “professional person” is defined as a medical doctor or a State Department of Institutions certified practitioner in the mental health field; e.g., a psychiatrist or clinical psychologist. Section 53-21-102(10), MCA (1979).


text:
    VERNON HOVEN, Plaintiff and Respondent, v. WILLIAM F. AMRINE and Larry Vervick, Defendants and Appellants.
    No. 86-330.
    Submitted on Briefs Sept. 25, 1986.
    Decided Oct. 30, 1986.
    727 P.2d 533.

      Lawrence F. Daly, Garlington, Lohn & Robinson, Missoula, for defendants and appellants.
    Christopher B. Swartley, Datsopoulos, MacDonald & Lind, Missoula, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

William Amrine and Larry Vervick appeal from a judgment of the District Court, Fourth Judicial District, Missoula County, awarding attorney fees to Vernon Hoven. We affirm the District Court’s award.

Hoven, Amrine and Vervick equal shareholders in the Missoula accounting firm of Hoven, Vervick & Amrine. In July 1979, Amrine and Vervick entered into an agreement to purchase stock from Hoven. The agreement provided for the award of attorney fees in the event a lawsuit was brought to enforce any of the provisions of the agreement.

In June, 1985, Hoven served default notices on Amrine and Vervick for failing to pay for the stock they had purchased. Vervick and Amrine then brought suit in the District Court to have the notices declared void. Hoven responded with a suit against Amrine and Vervick seeking an injunction and damages. The District Court consolidated the two cases, and after a show cause hearing on June 25, 1985, issued a preliminary injunction against Amrine and Vervick, restraining them from taking any action which might negatively affect the value of the corporation or its stock.

Amrine and Vervick continued to manage the day-to-day business of the corporation. In August, 1985, the corporation experienced cash flow problems and was unable to meet certain obligations, including state and federal payroll taxes. Amrine and Vervick, through their attorney, attempted to contact Hoven, in order to obtain a stipulation for the sale of a corporate asset to raise money. Their attorney was unable to elicit a response from Hoven’s attorney, and they finally filed a motion to modify the preliminary injunction. A hearing on this motion was held August 30, 1985. At the hearing, Hoven testified he had no substantive objections to the sale. The District Court granted the first two paragraphs of Amrine and Vervick’s petition for modification, deferring action on the remaining three issues.

In October, 1985, the District Court ruled that the default notices were valid, and that Hoven was entitled to recover attorney fees pursuant to the stock purchase agreement. In November, the court held a hearing to set the attorney fee award. Hoven was awarded fees for all attorney services between June 14 and July 9, 1985. The court reserved ruling on which party was entitled to recover fees for the period after July 9, 1985. Finally, in April, 1986, the District Court granted Hoven attorney fees for the post-July 9 period, and denied Amrine and Vervick’s request for the same.

Amrine and Vervick raise two issues on appeal: Whether Hoven was entitled to an award of attorney fees for the post-July 9 period, and if so, whether those fees were reasonable? Additionally, respondent Hoven requests attorney fees for this appeal.

Attorney fees are allowed when they are provided for by statute or contractual provision. Jordan v. Elizabethan Manor (1979), 181 Mont. 424, 434, 593 P.2d 1049, 1055. In this case, the stock purchase agreement had a clause which provided:

“a. Attorney Fees. In the event suit is brought to enforce any of the provisions of this agreement, the prevailing parties shall be entitled to costs of suit and any appeals thereon, including reasonable attorney’s fees.”

Amrine and Vervick argue that the attorney fees awarded for the August 30 hearing for modification of the preliminary injunction do not fall under the contract provision cited above. They argue that the modification of the injunction to allow sale of a corporate asset has nothing to do with enforcement of the provisions of the stock purchase agreement.

We disagree. The main issues before the District Court were whether or not the stock purchase agreement had been breached by the failure of Amrine and Vervick to tender payment to Hoven, and whether the default notices were valid. These are complex issues which the court ultimately decided in favor of Hoven in October, 1985. In the interim, while the court was resolving the issues, a temporary injunction was necessary to prevent Amrine and Vervick from dissipating the assets of the corporation. The August 30 modification of the injunction was necessary in order to allow the corporation’s operations to continue. We find, as did the District Court, that the injunction and its modification were one facet of the litigation whose main issues were the validity of the default notices and breach of contract.

The party who prevails on the main issue of a case is entitled to costs. Medhus v. Dutter (1979), 184 Mont. 437, 447, 603 P.2d 669, 674. A prevailing party is one who has an affirmative judgment rendered in his or her favor at the conclusion of the entire case. Jordan v. Elizabethan Manor, 181 Mont. at 434, 593 P.2d at 1055. Medhus concerned costs under Sections 25-10-101 and 25-10-102, MCA, while Jordan related to attorney fees by contract. The interpretation in these cases of “prevailing party” is applicable here. The District Court found that Amrine and Vervick were not prevailing parties; not only did Hoven prevail on the main issues of the case, but the court granted only two of the five requests made in Amrine and Vervick’s petition to modify. The court’s award of attorney fees in this case was proper.

Amrine and Vervick’s second argument is that the attorney fees incurred by Hoven are unreasonable since those fees would not have been incurred if Hoven had stipulated to the sale of the asset rather than force them to petition the court for a modification of the injunction. The District Court found that where parties are able to stipulate to an issue, matters may be more quickly resolved — but that the failure to stipulate to an issue is not necessarily unreasonable in an adversarial setting where the parties are unable to reach an agreement. The court found that by participating in the hearing, whether or not it was reasonable or necessary, both parties incurred expenses and attorney fees.

We hold the District Court did not abuse its discretion by awarding attorney fees to Hoven, including those incurred by his attorney from the August 30 hearing. THe District Court awarded attorney fees to the party prevailing on the main issues of the case. It is not reasonable to require the District Court to keep a running tally of “points scored” by each side in order to apportion costs and attorney fees at the end of every lawsuit. Our adoption of the prevailing party rule in Medhus v. Dutter, supra, obviates that requirement.

Order of the District Court is affirmed, and the cause remanded for determination respondent’s costs and attorney fees for this appeal.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, GULBRANDSON and WEBER concur.


author: MR. JUSTICE HUNT

text:
    LARRY BRANSTETTER and Geraldine Branstetter, Plaintiffs and Respondents, and Beaumont Greens, Inc., a Montana corporation, Defendant and Respondent, v. BEAUMONT SUPPER CLUB, INC., Defendant and Appellant.
    No. 86-122.
    Submitted on Briefs Aug. 21, 1986.
    Decided Nov. 6, 1986.
    727 P.2d 933.

      Richard C. Conover, Bozeman, for defendant and appellant.
    Scully, Lilly & Andriolo, Michael J. Lilly, Lyman H. Bennett, III, Bozeman, for plaintiffs and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from a judgment entered by the District Court of the Eighteenth Judicial District, Gallatin County denying damages to Beaumont Supper Club, Inc. In this Opinion we will refer to Beaumont Supper Club, Inc., as Supper Club; to Beaumont Greens, Inc., as Developer; and to Larry and Geraldine Branstetter, as Branstetters.

We affirm.

Appellant Supper Club raises five issues on appeal.

1. Did the District Court err in finding that the respondents/plaintiffs, Branstetters, did not trespass on the real property lawfully being used and owned by appellant/defendant, Supper Club?

2. Did the District Court err in denying the appellant Supper Club’s motion filed prior to trial to dismiss the cross-claim of the respondent/defendant Developer?

3. Did the District Court err in failing to grant appellant/defendant Supper Club’s motion for attorney’s fees requested pursuant to Rule 11 of the Montana Rules of Civil Procedure?

4. Did the District Court abuse its discretion by finding that the appellant/defendant Supper Club had been damaged in the total amount of $1,825.00 rather than the $6,785.00 it claimed?

5. Did the District Court err in failing to permit Supper Club to recover its damages as ascertained by the District Court?

In January, 1984, Branstetters were excavating on their newly-purchased lot in preparation for building a triplex. The excavating contractor severed a sewer septic tank drain line which ran under the property and into a drain field. Branstetters discovered the sewer drain line belonged to Supper Club, which was located nearby. Branstetters contacted the owner of the Supper Club who promised to see that the septic tank was pumped to eliminate further problems. Branstetters consulted with the city building inspector and the county sanitation engineer and were told that to avoid possible health hazards, they should plug the drain line, and remove the contaminated soil and replace it with gravel or other material. Branstetters did so. Meanwhile, Supper Club was forced to have their septic tank pumped until they were able to connect to the city sewer system.

Originally, all the land near Branstetters and Supper Club had belonged to Frank Valgenti, Donald Bianchi, Richard Embry and William Boyer who sold one parcel to Supper Club and another parcel to Developer who sold a lot to the Branstetters. However, the warranty deed given to Branstetters by Developer showed no easement for the sewer line and drain system that ran under Branstetters’ land.

In May, 1984, Branstetters brought suit for the damages they incurred. They sued Developer for breach of warranty of quiet enjoyment pursuant to the deed. They also claimed against Supper Club for trespass caused by construction of a septic system without their consent.

Developer answered and cross-claimed against Supper Club for indemnity and/or contribution. Supper Club moved to dismiss the cross-claim but that motion was denied. Supper Club answered and also cross-claimed against Developer for indemnity. In addition, Supper Club counterclaimed against Branstetters in trespass for plugging the sewer line. After hearing on issues, at which Developer admitted negligence to the Branstetters for failing to discover the existence of the drain field, the District Court entered its findings of fact and conclusions of law.

The District Court found that because Developer admitted liability to Branstetters, the proper level of damages was $4,100. The District Court also found that because Developer admitted negligence, it owed Supper Club $1,825. The Court arrived at this figure by finding that the expenses incurred by Supper Club in connecting the sewer system ($6,200) would have been necessary in a year or two in any case. Therefore, the District Court awarded interest of 10% on the $6,200 for two years in the sum of $1,240. In addition, the court awarded the cost of pumping the septic tank ($585) for a total of $1,825. The court also found that Supper Club was not guilty of trespassing on Branstetters’ land, and that Supper Club was not jointly and severally liable with Developer to the Branstetters.

After a series of motions, the District Court entered an order striking the damages awarded to Supper Club against Developer because Supper Club had not, at any time, cross-claimed in negligence against Developer. Judgment was entered in favor of Branstetters and against Developer for $4,100. Supper Club filed another motion to amend. The District Court entered another order finding that Branstetters had not trespassed against Supper Club in digging up or plugging the drain field.

The first issue that Supper Club raises on appeal is whether the District Court erred in finding that the Branstetters did not trespass on the septic system owned and used by the Supper Club. The District Court found that trespass involves an intentional intrusion upon the land of another. The court stated that Branstetters were rightfully excavating the ground they owned pursuant to a warranty deed. Since they had no notice of the drain line, the court held they were innocent of the charge of trespass.

The elements of the tort of trespass to real property are set out in Restatement (Second) of Torts Section 158 (1965) as follows:

“Section 158. Liability for Intentional Intrusions on Land.
“One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.”

Intent is defined in Restatement (Second) of Torts Section 8A (1965) as:

“The word ‘intent’ is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences [sic] of his act, or that he believes that the consequences are substantially certain to result from it.”

The District Court found, and we agree that no intentional intrusion upon the land of another has been shown in this case. Supper Club argues that even if the initial severing of the drain line was unintentional, the later plugging of the line and destruction of the drain field by removal of the contaminated soil was intentional. Appellant relies on the Mountain States Telephone and Telegraph Company v. Kelton (1955), 79 Ariz. 126, 285 P.2d 168 to argue the owners of the land should be held liable in trespass. Initially we note that Mountain States proceeded under a negligence theory, not on a trespass theory. In fact, the court states that the contractor could not be held liable under a trespass theory for having dug up plaintiffs telephone lines because there was no proof of an intentional act. The contractor did not know of the line’s existence, nor was he charged with knowledge for the purpose of determining intent. The owners were liable under a negligence theory because they had actual notice of a right of way for plaintiffs telephone lines but failed to tell the contractor.

If Mountain States has any application to the case at hand it shows that there could be no trespass when there was no knowledge or notice of the drain line. Branstetters’ actions in plugging the drain line and removing the contaminated soil from the drain field were required in order for them to mitigate their damages and prevent a possible health hazard. The District Court was correct in finding that Branstetters did not trespass against anyone.

Next, Supper Club contends the District Court erred in denying its motion to dismiss Developer’s cross-claim. At the same time they filed their answer, Developer filed a cross-claim against Supper Club for both indemnity and contribution. Supper Club contends this cross-claim should have been dismissed by the District Court, pursuant to their motion.

Rule 1, M.R.App.Civ.P. provides: “[a] party aggrieved may appeal from a judgment or order ...” A party is aggrieved when it has a “direct, immediate and substantial interest in the subject which would be prejudiced by the judgment or benefited by its reversal.” Montana Power Co. v. Montana Department of Public Service Regulation (Mont. 1985), [218 Mont. 471,] 709 P.2d 995, 1001, 42 St.Rep. 1750, 1757. Conversely, a party who is not aggrieved by a judgment may not appeal from it. Carbon County v. Schwend (1979), 182 Mont. 89, 98, 594 P.2d 1121, 1126; In re Stoian’s Estate (1960), 138 Mont. 384, 393, 357 P.2d 41, 46. In this case, the District Court held that Supper Club was not jointly and severally liable with Developer to the Branstetters. The District Court held in favor of appellants on this issue thus they are not aggrieved parties within the meaning of Rule 1, M.R.App.Civ.P. and are not entitled to appeal.

The third issue raised by appellants is whether the District Court erred in failing to grant them attorney’s fees pursuant to Rule 11, M.R.Civ.P. Appellant alleges that the action against it by the Branstetters and by Developer was frivolous and it should be awarded attorney’s fees pursuant to Foy v. Anderson (1978), 176 Mont. 507, 580 P.2d 114. In Foy, we awarded attorney’s fees to a litigant who was forced into a lawsuit despite the fact that she had asserted no claim against the plaintiff and had no intention of doing so. In the case at hand, the appellant defended itself at the District Court level, cross-claimed against Developer, and now appeals that it should have been awarded damages and yet at the same time maintains this is a frivolous lawsuit. The cause of action in question is not frivolous, it is the subject of a genuine controversy.

The fourth issue raised by appellants is whether the District Court abused its discretion by finding that the Supper Club had been damaged in the amount of $1,825. We decline to address this issue since it is rendered moot by the fact that the District Court ultimately did not award appellants any damages since none were claimed. See Montana Power Company v. Charter (1976), 173 Mont. 429, 568 P.2d 118; State ex rel. Adams v. District Court (1970), 155 Mont. 309, 471 P.2d 537.

The last argument raised by appellants is that the District Court erred in failing to permit appellant to recover its damages. Appellant contends they should at least be able to recover $1,825 from Branstetters for trespass. We have already held the District Court did not err in refusing to find a trespass. The District Court disallowed the damages it awarded against Developer since the appellants did not plead or prove an action against Developer. The attorney for the Supper Club was well aware that he had not plead against Developer:

“THE COURT: That was one of the rules of the Court that you hadn’t plead Mr. Conover against [Developer]. You just plead against Branstetter.
MR. CONOVER: There was no claim against [Developer]. [Developer] had no title which they could convey to the Plaintiffs in this matter. They gave them a warranty deed, but it’s like a third party conveying my property which I have no knowledge. They did nothing to me. They had no property in which they could convey.
“THE COURT: Why didn’t you sue them?
“MR. CONOVER: Because there was no damage that was caused by their conveying something that they had not title to. They are conveying as I said, someone conveying my property away from me. They cannot convey it. The don’t own it to convey it.
“THE COURT: Wasn’t that — I don’t know if it was a compulsive counter-claim or cross-claim or not, but I never could figure out why you didn’t plead against [Developer].
“MR. CONOVER: This was an actual trespass on the Plaintiffs’ property. The Plaintiffs were damaged, yes, and if the Plaintiffs had to pay us money because they trespassed on our property, I think there’s every reason the Plaintiffs could recover that money from the [Developer], but that doesn’t mean we have been damaged by it. They had no right to sell it in the first place.
“THE COURT: Who?
“MR. CONOVER: The [Developer]. They had the title, they had already conveyed it to us.
“THE COURT: Why didn’t you sue them?
“MR. CONOVER: We sued — we chose to sue the Plaintiffs. They trespassed on our property. There’s no question about it. Your findings find that at least, I think that the findings that you entered, support that we owned the equipment system, because of the severed drain line by the Plaintiffs, the Defendant Supper Club incurred pumping expenses of the septic tank.
“THE COURT: I felt that you had a cause of action, but you never pled it against [Developer], and that’s the reason I ruled like I did.” The District Court did not err in refusing to allow damages against Developer. The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, WEBER and GULBRANDSON concur.