author: MR. JUSTICE SHEEHY

text:
    MEL PALIN d/b/a Palin Ranch Enterprises, Plaintiff and Appellant, v. GEBERT LOGGING, INC., a Montana corporation, Defendant and Respondent.
    No. 85-232.
    Submitted on Briefs Oct. 25, 1985.
    Decided March 20, 1986.
    716 P.2d 200.

      Small, Hatch, Doubek & Pyfer, John C. Doubek, Helena, for plaintiff and appellant.
    T.K. Botsford, Missoula, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Mel Palin appeals from an order of the Fourth Judicial District Court, Missoula County, granting partial summary judgment in favor of Gebert Logging, Incorporated. We affirm.

On January 11, 1984, Mel Palin, d/b/a Palin Ranch Enterprises entered into a written agreement with Gebert Logging for the sale and removal of timber from certain lands located in Granite County. The agreement provided among other things that Gebert would fell, load and remove logs to the Champion International Corporation plant at Bonner Montana; and that Gebert would repair all fences, gates and cattle guards and blade all roads to a smooth surface after the logging operations were completed. Pursuant to the contract Gebert paid to Palin $20,000, of which $10,000 was a prepayment by Gebert for stumpage and the remaining $10,000 was to be held as a bond by Palin until the expiration of the agreement.

Pursuant to the agreement, Gebert went upon the described lands, felled trees, and removed and delivered the logs to Champion’s plant at Bonner. After the first $10,000 worth of logs had been delivered to Champion, Palin was paid by Champion for his seller’s share of the proceeds of the logs.

When the agreement expired, Gebert demanded the $10,000 bond be returned to it. Palin refused, claiming that the land had been damaged, gates and roads also damaged and that Gebert had failed properly to perform the contract. Gebert commenced suit to recover its bond from Palin, and through discovery learned that Palin was not in fact the owner of the land described in the written contract, but that rather Palin’s wife was the record owner of the land.

Palin contended by affidavit after suit commenced that since 1972 he had managed the real property of the Palin family which included the real property under the timber sales agreement, and that he entered into the timber sales agreement as agent for his wife with her approval and knowledge. Palin’s wife filed an affidavit to the effect that she was aware of and had approved the timber sales agreement and that Palin had full authority and approval to act as her agent in contracting for the sale of the timber located on the real property which she owned.

The answers to interrogatories filed by Palin indicated that he neither owned the timber nor the real property covered by the contract nor had any written authority to execute the contract for the owner, his wife.

The District Court granted partial summary judgment in favor of Gebert for the sum of $10,000 and accrued interest and dismissed Palin’s counterclaim against Gebert for the damages to the lands that Palin had claimed. The District Court further found that Palin’s actions in the premises constituted a breach of his duty of good faith and fair dealing. The partial summary judgment reserved for further hearing the determination of the amount of exemplary damages to be awarded. The partial summary judgment was certified by the District Court for purposes of appeal under Rule 54(b), M.R.Civ.P.

The issue before this Court is whether the grant of partial summary judgment in this case was proper.

Summary judgment is proper if under the record before the district court there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Cereck v. Albertsons, Inc. (1981), 195 Mont. 409, 637 P.2d 509; Gilleard v. Draine (1972), 159 Mont. 167, 496 P.2d 83; Roope v. Anaconda Co. (1972), 159 Mont. 28, 494 P.2d 922.

A summary judgment is proper when the party opposing the motion fails either to raise or to demonstrate the existence of the genuine issue of material fact, or to demonstrate that the legal issue should not be determined in favor of the movant. State ex rel. Burlington Northern v. District Court (1972), 159 Mont. 295, 300, 496 P.2d 1152, 1155.

The District Court determined that the contract between the plaintiff and the defendant was covered under the Uniform Commercial Code in Section 30-2-107(2), MCA, and that it was for a sale of goods for a price of more than $500 which requires the contract to be in writing. Section 30-2-201(1), MCA. Palin did not have written authority to execute the written contract as the agent of his wife and he therefore acted without authority. Section 28-10-203, MCA; Schlenz v. John Deere Co. (U.S.D.C. Mont. 1981), 511 F.Supp. 224. The wife, Hilldegarde Palin, could not ratify the acts of her husband retroactively in this case without the consent of Gebert. Section 28-10-213. MCA.

The District Court further determined that prior to Gebert’s motion for summary judgment, Palin had held himself out to Gebert and to the District Court as the owner of the timber and the land as a seller to Gebert, and not as an agent acting for an undisclosed principal without written authority.

In Larry C. Iverson, Inc. v. Bouma (1981), 195 Mont. 351, 375, 639 P.2d 47, 60, we approved a holding from another jurisdiction that a contract entered into without the power to contract cannot be ratified or enforced, and that incapacity to contract cannot be removed by estoppel. In this case Palin had no written authority, as required by law, to enter into the timber sales agreement. The subsequent attempts at ratification by his wife give no life to his actions. The District Court acted properly therefore in entering judgment against Palin for the sum of $10,000, the amount of bond which he held, plus accrued interest thereon, and was further correct in dismissing Palin’s cross claim for damages to the realty, since he was not the owner thereof.

Palin contends that when the contract is partly performed by the parties sought to be charged, the statute of frauds in the Uniform Commercial Code, Section 30-2-201, MCA, has no application under Northwest Potatoes Sales, Inc. v. Beck (Mont. 1984), [208 Mont. 310,]678 P.2d 1138, 41 St.Rep. 362; and that where both parties have performed and one party had significantly altered his position to his detriment, it is unconscionable to invalidate the contract by relying upon the statute of frauds, citing Bolz v. Myers (Mont. 1982), [200 Mont. 286,] 651 P.2d 606, 39 St.Rep. 1747.

Palin contends that the statute of frauds under the UCC does not require that both parties sign the contract but that only the “party against whom enforcement is sought” must sign the agreement which in this case would be the respondent Gebert.

Gebert responds that the cited cases are not applicable here because it was Gebert that altered its position based on Palin holding himself out as owner of the lands; that Gebert was at all times capable of performing the contract and did perform it; and that it was Palin who lacked the authority and capability to sign the contract. We agree with Gebert and determine that neither Northwest Potato Sales, supra, nor Bolz v. Myers, supra, have any application to this case.

The affirmative defense of estoppel cannot be raised by Palin for the first time on appeal. Montana Seeds, Inc. v. Holliday (1978), 178 Mont. 119, 582 P.2d 1223.

Under the facts of this case, the contract was unenforceable because it was not signed by the owner of the lands, nor by a party having authority in writing to contract for the owners; and Palin, because he is not the owner of the lands, has no claim for damages, if any, that Gebert may have caused the lands. Thus there is no genuine issue of material facts in this case and the District Court properly entered summary judgment.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    MONTANA BANK OF ROUNDUP, N.A., Plaintiff and Respondent, v. JOHN A. BENSON & Pam Benson, husband and wife, William L. Benson and Karen O. Benson, n/k/a/ Karen Hough, Defendants and Appellants.
    No. 85-261.
    Submitted on Briefs Dec. 18, 1985.
    Decided March 20, 1986.
    Rehearing Denied May 6, 1986.
    717 P.2d 6.
    Harris Law Firm, Linda L. Harris, Billings, for defendants and appellants.
    K. Robert Foster, Bozeman, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order issued in the Tenth Judicial District, the Honorable Peter L. Rapkoch presiding, in and for Petroleum County, Montana, denying defendants’ motion to set aside the default and judgment of default entered in favor of the plaintiffs. We reverse and remand.

The single issue presented by appellants is whether the court erred in denying the Bensons’ motion to set aside default and judgment by default.

The defendants/appellants, John and Pam Benson, own and operate a ranch near Melstone, Montana. Their principal source of revenue is sale of sheep and horses. They had been substantial customers of the Montana Bank of Roundup (Bank) for several years. We will spare the reader a lengthy discourse on the recent and less than harmonious relationship between the Bensons and the Bank. It is sufficient to set forth the following: Bensons and the Bank had negotiated a loan through the Farmers Home Administration (FHA), whereby FHA guaranteed 90% of the loan after liquidation of all collateral. In addition, the Bank approved a $64,000 credit line for the Bensons’ operating expenses. Collateral included real estate equity, equipment, sheep and horses, and any increase in any sheep and horses. Serious losses of livestock in the fall of 1984 rendered the Bensons insolvent and the Bank deemed itself insecure. A complaint filed by the Bank alleged default in the security agreements and that it had deemed itself insecure. Contemporaneously, a motion for a temporary restraining order and preliminary injunction were presented. A temporary restraining order was issued, and after a hearing on the motion for preliminary injunction, an injunction incorporating the temporary restraining order was issued. The Bank’s efforts to gather its collateral were met with extraordinary resistance by the Bensons. Bank officials eventually believed they had reasonable grounds to fear for their safety and then attempted to enforce the Bank’s rights in court.

A notice of intention to take default was personally served on Ben-sons’ counsel who responded by way of a motion to withdraw and a motion for continuance. Bensons were served a notice of hearing on the combined motion, but did not appear. Consent to withdraw was granted, and the withdrawing attorney was ordered to notify Ben-sons. The motion for continuance was not ruled on. Bensons claim they did not receive notice of their attorney’s withdrawal, and there is no evidence in the record of any notice to Bensons. This Court can review only what is in the record.

. . [I]n the absence of the evidence from the record we are precluded from inquiring whether it is sufficient to sustain the findings, since error or prejudice cannot be presumed.”

Sherburne Mercantile Company v. Bonds (1944), 115 Mont. 464, 468, 145 P.2d 827, 828.

“Section 46-20-301, MCA, provides:

The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases.”

After a review of the record by the Court, it is apparent there is no evidence the District Court’s order allowing counsel of record to withdraw was mailed to Bensons. Nor is there evidence they were notified by counsel for the Bank pursuant to Section 37-61-405, MCA:

“When an attorney dies or is removed or suspended or ceases to act as such, a party to an action for whom he was acting as attorney must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or appear in person.”

This Court, in interpreting this section, has stated that:

“This section means no more than it plainly says, vis, that no proceeding may be had against a party, no judgment or order or other step be taken, until he appoints an attorney, unless the prescribed notice is first given.”

Endresse v. Van Vleet (1946), 118 Mont. 533, 537, 169 P.2d 719, 721; Hand v. Hand (1957), 131 Mont. 571, 577, 312 P.2d 990, 993.

Neither the Bank nor Bensons’ withdrawing attorney gave written notice to Bensons in violation of Sections 37-61-404 and -405, MCA, and the court’s order to the withdrawing attorney to notify the Ben-sons. At the time the default judgment was issued, Bensons had no attorney of record and were not represented at the hearing. The court’s lack of authority to proceed is properly raised by Bensons on appeal. The case is accordingly remanded to the District Court with directions to set aside the previous default and judgment of default and grant defendants a rehearing at which they have opportunity to be represented, consistent with the statutes, and the holding of this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, SHEEHY and HUNT concur.


text:
    KRISTINA BIRKY, Plaintiff and Appellant, v. DIANE JOHNSON, and Commercial Union Insurance Company, Steven Siderius and National Farmers Union Insurance Company, Defendants and Respondents.
    No. 85-280.
    Submitted on Briefs Dec. 11, 1985.
    Decided March 20, 1986.
    Rehearing Denied April 22, 1986.
    716 P.2d 198.
    Astle & Astle, David L. Astle, Kalispell, for plaintiff and appellant.

      Murphy, Robinson, Heckathorn & Phillips, I. James Heckathorn, Kalispell, for Johnson.
    Hash, Jellison, O’Brien & Bartlett, Kenneth E. O’Brien, Kalispell, for Siderius.
    S.Y. Larrick, Kalispell, for Nat’l Farmers Union Ins.
    Garlington, Lohn & Robinson, Wm. Evan Jones, Missoula, for Commercial Union Ins.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Kristina Birky, appeals from the order of the District Court, Eleventh Judicial District, County of Flathead, granting the motion for summary judgment of respondent, Steven Siderius. The District Court certified its order for appeal by order dated July 12, 1985.

This action arises out of a multiple vehicle collision. The basic facts established by the pleadings, depositions and affidavits disclose the following: On May 8,1982, Birky was driving her vehicle west on U.S. Highway No. 2. She was followed by a vehicle driven by Siderius. As the Birky and Siderius vehicles approached the intersection of U.S. Highway No. 2 and LaSalle Road they were traveling at a speed of approximately 35 to 40 miles an hour and the Siderius vehicle was approximately four to five car lengths behind the Birky vehicle.

As Birky and Siderius approached the intersection, a vehicle driven by Diane Johnson pulled out of the Snappy’s Sports Center parking lot and crossed the west bound traffic lanes directly in front of the Birky vehicle. Birky applied her brakes and left 33 feet of skid marks before striking the Johnson vehicle. The Siderius vehicle pulled to the left into the left turn bay in an effort to avoid the collision. When the Johnson and Birky vehicles collided, however, the rear of the Birky vehicle swung also to the left, and the rear of the Birky vehicle and the side of the Siderius vehicle collided.

The investigating patrolmen and Birky all agreed that if the Johnson vehicle had not pulled in front of the Birky vehicle, no accident would have occurred. Both of the Highway Patrolmen were also of the opinion that the proximate cause of the accident was the action of Johnson in failing to yield the right of way, and no actions of Siderius were a proximate cause of the accident. Further, after the accident, Johnson acknowledged that the accident was her fault, and she received a citation for failure to yield the right of way. No citations were issued to Siderius. Two eyewitnesses to the collision were also of the opinion that Siderius had done everything to avoid the accident and that Siderius was not at fault.

It was Birky’s opinion that Siderius couldn’t have been cautious or he wouldn’t have struck her. Birky, however, agreed that since she didn’t see the Siderius vehicle that eyewitnesses would be in a much better position to judge the conduct of Siderius.

The record also indicates that neither the Siderius vehicle nor the Birky vehicle were speeding.

Birky raises only one issue on appeal: whether the District Court erred in granting summary judgment to Siderius on the issue of negligence.

The purpose of summary judgment procedure is to encourage judicial economy by eliminating unnecessary trials, and it is proper under Rule 56(c), M.R.Civ.P., only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510; Reaves v. Reinbold (Mont.1980), 615 P.2d 896, 898, 37 St.Rep. 1500, 1502.

It is well established that a party moving for summary judgment has the burden of showing a complete absence of any genuine issue as to all facts deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law. Cereck, 195 Mont. at 411, 637 P.2d at 511; Reaves, 615 P.2d at 898, 37 St.Rep. at 1502; Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment. Cereck, 195 Mont. at 411, 637 P.2d at 511; Reaves, 615 P.2d at 898, 37 St.Rep. at 1502; Mally v. Asanovich (1967), 149 Mont. 99, 105, 423 P.2d 294, 297.

When a duty is imposed upon the defendant and the plaintiff’s allegations, if proven, would support a finding of a breach of the duty, summary judgment is improper. Cereck, 195 Mont. at 412, 637 P.2d at 511; Rennick v. Hoover (1980), 186 Mont. 167, 170, 606 P.2d 1079, 1081.

In Montana the duty imposed upon the driver of a following vehicle is set forth at Section 61-8-329(1), MCA, which provides:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

In construing Section 61-8-329(1), MCA, this Court has held that the primary duty of avoiding a collision rests upon the following driver. Custer Broadcasting Corp. v. Brewer (1974), 163 Mont. 519, 518 P.2d 257.

This Court, however, has never addressed the situation, as here, where the following vehicle is required to make an emergency stop when the motorist ahead collides unexpectedly with another motorist.

“In some jurisdictions statutes prescribe the distance to be maintained by a motor vehicle from the one ahead, ... in general language, such as a “reasonable and prudent” distance from the vehicle ahead, or a reasonable and prudent distance with regard to the speed of the other vehicle and the traffic upon and condition of the roadway,. . . Generally, then, the law, in effect, requires that where two motorists are operating vehicles proceeding in the same direction, the motorist to the rear keep a safe distance behind the motorist ahead, so as to avoid collision with the vehicle ahead when it is being driven in accordance with the law of the road. It has been said that the motorist to the rear must keep such distance from the motorist ahead and maintain such observation of him that an emergency stop may be safely made, although the motorist to the rear need not anticipate an emergency stop required when the motorist ahead collides unexpectedly with another motorist.” (Emphasis added.)

7A Am.Jur.2d Automobiles and Highway Traffic Section 261 (Rev. 1980).

In the instant case, Birky claims that the mere fact that Siderius rear-ended her is prima facie evidence that Siderius was following more closely than was reasonable and prudent in breach of the duty imposed upon him by Section 61-8-329(1), MCA. In light of the above-cited authority, and the facts about which there is no genuine issue, the claim made by Birky would not support a finding of breach of Siderius’ duty toward her. The granting of summary judgment was proper.

Siderius raises the issue that Birky’s notice of appeal was not timely filed. We, however, decline to discuss this issue, having previously denied Siderius’s motion to dismiss this appeal on those grounds by order of this Court dated September 17, 1985.

We affirm the District Court.

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


author: MR. JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CLYDE LEWIS, Defendant and Appellant.
    No. 85-384.
    Submitted on Briefs Jan. 23, 1986.
    Decided March 20, 1986.
    715 P.2d 1064.

      Allen Beck, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Judy Browning, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Lewis, appeals from his Yellowstone County District Court jury trial conviction and sentence of 30 years in the Montana State Prison.

We affirm.

The issues raised by defendant and appellant are:

1. Whether the District Court erred in granting the State’s motion in limine precluding introduction of evidence concerning defendant’s physical condition?

2. Whether there was sufficient evidence to support the jury’s finding that defendant put his victim in fear of immediate bodily injury?

3. Whether the District Court’s jury instruction on direct and circumstantial evidence was proper?

4. Whether defendant’s sentence is disproportionate to any reasonable construction of the facts in the case?

On June 8, 1984 at 1:00 a.m. there occurred a robbery at a Kwik Way store in Billings. Defendant, his brother, and two women spent the evening riding around the city and drinking. At approximately 1:00 a.m. they stopped at the Kwik Way. There is conflicting testimony as to what occurred next.

According to the clerk on duty that night, and other State’s witnesses, defendant’s brother Don entered the store and asked about the price of beer. Don left and returned with the defendant. Both men went to the cooler and came out with a case of beer and two bottles of wine.

As the clerk rang up the sale, he noticed Don go to the door of the store and look outside. Suspecting that the men were about to steal the beer and wine, the clerk reached for a baseball bat kept beneath the counter. At this point Don said something to the defendant who then reached back with his arm, and brought his arm forward as if to put something under his coat. With one hand under his coat, defendant told the clerk that he wasn’t going to pay for the beer and wine and that he wanted what was in the till. Although the clerk never saw a gun, he testified that he believed the defendant had a gun and felt threatened. The defendant’s hand remained under his coat the rest of the time he was in the store as well as when he left the store.

While the robbery was occurring, two men in a truck pulled into the store’s parking lot. The defendant saw the truck and told the clerk he wanted the money fast. The clerk emptied the till, including a marked five dollar bill. The defendant took the money and told the clerk not to leave the store. Don took the beer and wine and the two men fled the store.

Jeff Reed, one of the persons in the truck, noticed the defendant running or walking away from the store with one hand in his coat pocket. The clerk grabbed Reed as he entered the store, and asked him to get the license plate number of defendant’s car. Reed observed the license plate number, the car’s make and color. They followed the car, but could not catch it.

As the defendant and his brother left the store, and headed toward their car, one of the women in the car, Diana Loomis, saw the defendant hand his brother some money. The other woman in the car, Cindy Sawyer, testified that the two men came running out of the convenience store and both of them screamed at her to get out of there.

After leaving the store, the defendant and his brother noticed that they were being followed. The brothers then handed Cindy Sawyer some items which she threw from the car. Shortly thereafter they were stopped by the police. The police later recovered the beer, wine, and currency thrown from the car, including the marked five dollar bill.

According to the testimony of defendant and his brother, who pled guilty to the robbery, the decision to rob the store was made unilaterally by Don Lewis. When the defendant and Don were at the counter, Don said he would not pay for the beer and wine and demanded money from the till. The defendant had nothing to do with initiating or carrying out the robbery. The reason he placed his hand under his coat was because of a physical condition causing him pain in the abdominal area. The defendant was angry with Don for robbing the store, and the two argued intensely about the robbery after leaving the Kwik Way.

The first issue raised by the defendant is whether the District Court erred in granting the State’s motion in limine precluding introduction of evidence concerning the defendant’s physical condition. The defendant claims he suffers from abdominal problems causing him severe and continuous pain. He alleges that his physical condition explains why he had his hand under his coat during the robbery. Therefore, the evidence was relevant, and granting the State’s motion in limine was prejudicial to his defense. Defendant’s argument is not persuasive.

First, the District Court did not grant the State’s motion in limine, it was denied. Instead, when the defendant attempted to elicit testimony from the defendant’s mother concerning the nature of his illness, the State objected to the relevance of the testimony and the objection was sustained. Nevertheless, defendant’s mother was allowed to mention throughout her testimony that defendant was ill.

Second, the defendant and his sister were both allowed to testify concerning the specific nature of his illness, and the fact that defendant often placed his hand on his side because of the pain. Defendant further testified that if he did have one hand on his side during the robbery, it was because of his illness.

We hold that evidence concerning defendant’s physical condition was relevant, and it was error for the trial court to sustain the State‘s objection to the mother’s testimony. Nevertheless, the error was harmless. The defendant was still able to introduce abundant evidence concerning his physical condition through the testimony of his brother, sister, and himself. The jury chose not to believe the defendant, and there is substantial evidence on the record to support the jury’s decision.

Defendant’s second issue is whether there was sufficient evidence to support the jury’s finding that the defendant put his victim in fear of immediate bodily injury. The defendant was convicted of robber under Section 45-5-401(l)(b), MCA. That section states:

“A person commits the offense of robbery if in the course of committing a theft he:
“(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury

Defendant argues that there was insufficient evidence to support a finding that he placed the clerk in fear of immediate bodily injury. We disagree. There is ample evidence in the record to support such a finding.

The clerk, testified that the defendant swiftly placed his hand under his coat and demanded the money in the till. The clerk stated that he believed the defendant had a gun and that his life was in jeopardy. The defendant’s actions were sufficient to support the jury’s finding that defendant purposely or knowingly placed the clerk in fear of immediate bodily injury. The jury may use common experience to conclude that a particular situation would cause a person to experience fear. State v. Case (Mont. 1980), 621 P.2d 1066, 1069, 37 St.Rep. 2057, 2059-60. An actual weapon need not be used. See Criminal Law Commission Comments on Section 45-5-401, MCA. There was sufficient evidence to support the jury’s conclusion that the defendant placed the clerk in fear of immediate bodily injury.

The third issue on appeal is whether the District Court’s jury instruction on direct and circumstantial evidence was proper. The trial court offered the following instruction regarding circumstantial evidence:

“There are two classes of evidence recognized and admitted in courts in the State of Montana. One is ‘direct evidence,’ and the other is ‘circumstantial evidence.’ In ‘direct evidence,’ the witnesses testify directly of their own knowledge of the main fact or facts to be proven, while ‘circumstantial evidence’ is the proof of certain facts and circumstances in a given case from which the jury may infer other connecting facts which usually and reasonably follow according to the common experiences of mankind.”

The defendant objected to this instruction, and instead offered the following instruction which the trial court refused to give:

“Acts may be proven by circumstantial evidence as well as by direct testimony of eye witnesses, but the facts and circumstances in evidence should be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of the defendant’s innocence.
“Both direct evidence and circumstantial evidence are acceptable as means of proof. Neither is entitled to greater weight than the other.”

The trial court refused defendant’s instruction because the case did not hinge upon circumstantial evidence. The District Court stated:

“There were only three people in that store at the time of the holdup. All three of them have testified, and that’s direct evidence.”

We have addressed this issue before in State v. Gould (Mont. 1985), [216 Mont. 455,] 704 P.2d 20, 42 St.Rep. 946, and State v. Bean (1959), 135 Mont. 135, 337 P.2d 930. In those cases we held that an instruction such as that proposed by the defendant is only appropriate where all of the evidence is circumstantial. Where there is substantial direct evidence, a district court may properly refuse to give such an instruction. Gould, 704 P.2d at 31-32; Bean, 135 Mont. at 137.

The District Court instructed the jury on the definition of direct and circumstantial evidence, and on the equal weight of each. It was not error for the District Court in this case to refuse to give defendant’s proffered instruction as there was substantial direct evidence of defendant’s guilt.

Finally, defendant argues that his sentence is disproportionate to any reasonable construction of the facts in the case. Defendant’s sentence was within the permissible statutory range, and, in the absence of clear abuse of discretion is properly reviewed by the Sentence Review Division. Here, there was no abuse of discretion by the District Court, and this issue is a matter for the Sentence Review Division, and not this Court. State v. Beach (Mont. 1985), [217 Mont. 132,] 705 P.2d 94, 107, 42 St.Rep. 1080, 1094.

For the reasons stated above, we affirm the conviction and sentence of the defendant.

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


author: MR. JUSTICE GULBRANDSON

text:
    MARK A. GAUB, Plaintiff and Appellant, v. MILBANK INSURANCE COMPANY, and Kimberly A. Tanner, Defendants, and Larry Tanner and Judy Tanner, Defendants and Respondents.
    No. 85-442.
    Submitted on Briefs Nov. 14, 1985.
    Decided March 20, 1986.
    715 P.2d 443.

      Hash, Jellison, O’Brien & Bartlett, James C. Bartlett, Kalispell, for plaintiff and appellant.
    Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Kalispell, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The plaintiff appeals an order from the Lake County District Court granting summary judgment to defendants Larry Tanner and Judy Tanner. Plaintiff contends on appeal that Section 61-5-108, MCA, requires any negligence of a minor to be imputed to the minor’s parents when (a) both parents signed the minor’s application for a driver’s license and (b) no proof of financial responsibility accompanied the minor’s application for a driver’s license. We affirm the District Court’s order granting summary judgment to the parents.

The following facts are taken from the District Court’s order:

Defendant Kimberly A. Tanner drove a motor vehicle which was involved in a collision with plaintiff’s vehicle in December 1983. She is the minor daughter of defendants Larry and Judy Tanner. Both parents signed Kimberly Tanner’s application for a driver’s license in December 1982. They maintained liability insurance on the motor vehicle which she drove at the time of the accident. The amount of insurance was twice the minimum amount required to satisfy Montana’s financial responsibility laws. The parents provided proof of liability insurance to the Motor Vehicle Division of the State of Montana by complying with its directives to the Lake County Treasurer when they licensed and registered the motor vehicle. No proof of financial responsibility accompanied Kimberly Tanner’s application for a driver’s license.

Plaintiff’s sole issue on appeal concerns the meaning of Section 61-5-108, MCA:

Can parents who signed a minor’s application for a driver’s license invoke a limit on damages in the amount of their liability insurance coverage when (a) both parents have signed the application for the minor to obtain a driver’s license, and (b) no proof of financial responsibility accompanied the minor’s application for a driver’s license?

Section 61-5-108, MCA, states:

“(1) The application of any person under the age of 18 years for an instruction permit or operator’s license shall be signed and verified before a person authorized to administer oaths by both the father and mother of the applicant, if both are living and have custody of him, or by the surviving parent, or in the event neither parent is living or has custody, then by the person or guardian having such custody or by an employer of such minor, or in the event there is no guardian or employer then by some other responsible person who is willing to assume the obligation imposed under this chapter upon a person signing the application of a minor.
“(2) Any negligence or willful misconduct of a minor under the age of 18 years when driving a motor vehicle upon a highway shall be imputed to a person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct, except as otherwise provided in subsection (3) of this section.
“(3) In the event a minor deposits or there is deposited upon his behalf proof of financial responsibility in respect to the operation of a motor vehicle owned by him, or if not the owner of a motor vehicle, then with respect to the operation of any motor vehicle, in form and in amounts as required under the motor vehicle financial responsibility laws of this state, then the department may accept the application of such minor when signed by one parent or the guardian of such minor, and while such proof is maintained such parent or guardian shall not be subject to the liability imposed under subsection (2) of this section.”

Appellant focuses on the last two phrases in subsection (3) to support his interpretation. He argues that subsection (3) is available only when “one parent or the guardian of such minor” signs the application and that it is not available when both parents or the minor’s employee or some other responsible person signs the application. He also contends that the proof of financial responsibility must be submitted at the time of application. The District Court concluded, from reading Section 61-5-108, MCA, as a whole that in subsections (1) and (2), the legislature intended a minor should receive a driver’s license only if the application is co-signed by a person who shall be responsible for any negligence of the minor while operating a motor vehicle. The court further concluded that, in subsection (3), the legislature eliminated this imputed liability for that responsible person so long as proof of financial responsibility is provided and maintained. Finally, the District Court concluded that the express language of subsection (3) contains no time limitation within which proof of financial responsibility must be deposited.

“The fundamental rule of statutory construction is that the intention of the legislature controls . . . The intention of the legislature must first be determined from the plain meaning of the words used . . . [Citations omitted.]”

Missoula County v. American Asphalt, Inc. (Mont. 1985), [216 Mont. 423,] 701 P.2d 990, 992, 42 St.Rep. 920, 922. In the search for plain meaning, “the language used must be reasonably and logically interpreted, giving words their usual and ordinary meaning.” In re Matter of McCabe (1975), 168 Mont. 334, 339, 544 P.2d 825, 828. A court’s function, when construing a statute, is to ascertain what it contains,

“not to insert what has been omitted nor to omit what has been inserted ... A statute must be read and considered in its entirety and the legislative intent may not be determined from the wording of any particular section or sentence, but only from o consideration of the whole . . . [Citations omitted.] [Emphasis added.]”

State ex rel. Cashmore v. Anderson (1972), 160 Mont. 175, 184, 500 P.2d 921, 926-927, cert. den. 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593.

We agree with the District Court’s construction of the statute which considers the statute as a whole. Under appellant’s construction, if one parent signs the application and provides proof of financial responsibility, that parent has no imputed liability; but if both parents sign and provide the required proof, both parents have imputed liability. Similarly, a guardian having custody who signs the application and provides the required proof escapes imputed liability; but some other “responsible person” having custody who signs the application and provides the required proof remains subject to imputed liability. Such an interpretation is neither reasonable nor logical. “Statutory construction should not lead to absurd results if a reasonable construction will avoid it.” State ex rel. Ronish v. School Dist. No. 1 (1960), 136 Mont. 453, 460, 348 P.2d 797, 801, 78 A.L.R.2d 1012. A reasonable construction of subsection (3), when considering the statute in its entirety, permits the person(s) who signed the application to be relieved from the operation of subsection (2) so long as proof of financial responsibility is provided and maintained.

If a statute requires construction, a review of the title of the original bill is a necessary first step to aid that construction. Matter of Senate Bill No. 23 Ch. No. 491, M.S.L. of 1973 (1975), 168 Mont. 102, 105, 540 P.2d 975, 976. The title of H.B. 207, the bill which was enacted in 1947 and codified as Section 61-5-108, MCA, describes the bill as “. . . providing for the method of application for licenses for minors by the parents, guardian or other responsible person and providing for the liability of such parents, guardian or other person in certain instances; providing for the release from liability by such parents, guardian or other person . . .” Thus, the title, part of this statute’s legislative history, supports the District Court’s construction, as well.

Section 61-5-108(3), MCA, makes no direct reference to the time within which proof of financial responsibility must be submitted. It states, in part, “[i]n the event [proof of financial responsibility is deposited], in form and in amounts as required under the motor vehicle financial responsibility laws of this state . . .” (Emphasis added.) The plain meaning of this is that so long as the proof complies in form with Sections 61-6-101 et seq., MCA, the Motor Vehicle Safety Responsibility Act, there is no imputed liability. That Act requires the owner of the motor vehicle to certify that he possesses insurance or one of the listed alternatives before the vehicle is registered. Section 61-6-302(1), MCA. Without this Court inserting a time limit which has been omitted from Section 61-5-108(3), MCA, a reading of Section 61-6-302(1), MCA, only requires providing proof of motor vehicle insurance at the time the vehicle is registered. We will not insert a different time limitation into Section 61-5-108(3), MCA, when the legislature did not require it. The District Court correctly reasoned that,

“. . . from the time proof of financial responsibility is deposited on behalf of a minor, whether such deposit be made prior to, simultaneous with, or at any time after the submission of the application, that the person or persons who signed the application are not subject to the imputed liability of subsection (2) . . .

Thus, so long as liability insurance is, in fact, in force at the time of an accident, proof offered at any time releases the signers from imputed liability. Similarly, if proper proof had been deposited at one time but the insurance was not in force at the time of the accident, that would be sufficient proof that financial responsibility had not been retained and imputed liability would be reimposed.

Appellant cites Moore v. Jacobsen (1953), 127 Mont. 341, 263 P.2d 713, for his contention that the proof of financial responsibility must accompany the minor’s application for a license. Moore held that the second subsection applied and that there was no evidence either party resorted to the third subsection. This Court noted that the record did not disclose that proof of financial responsibility had been deposited “at the time the application was made for a license, or at any other time.” 127 Mont. at 348, 263 P.2d at 717. The subsequent statement that proof must be made at the time of application is dicta and not controlling authority for the case at bar. Further, on motion for rehearing, this Court stated nothing in the record indicated proof of financial responsibility was deposited at “any place or any time,” and stated no requirement that proof was required at the time of application. Moore, 127 Mont. at 365, 263 P.2d at 726. Moore is distinguishable on the facts from this case as well. Here, the parents provided proof of financial responsibility at the time the vehicle was registered and licensed and the insurance was in effect at the time of the accident, in contrast to the responsible person in Moore, discussed above.

We hold that Section 61-5-108(3), MCA, relieves the person who signed an application of a minor from the imputed liability of subsection (2) so long as financial responsibility is maintained as required under the motor vehicle financial responsibility laws of this state and that so long as such financial responsibility is maintained, proof offered at any time releases the signer from the imputed liability of subsection (2).

The District Court’s order is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, WEBER, MORRISON and HUNT concur.


text:
    MAURICE A. WARNER, JR., Plaintiff and Appellant, v. THE COUNTY COMMISSIONERS OF GALLATIN COUNTY, et al., Defendants and Respondents.
    No. 85-478.
    Submitted on Briefs Jan. 30, 1985.
    Decided March 20, 1986.
    715 P.2d 1068.
    Michael P. Sand, Bozeman, for plaintiff and appellant.
    A. Michael Salvagni, Co. Atty., Thomas Anacker, Deputy Co. Atty., Bozeman, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Maurice Warner, Jr., brought an action in the District Court of the Eighteenth Judicial District, Gallatin County to enjoin the defendants from assessing any costs for improvements under Rural Improvement District No. 337 and to declare the resolution creating the district null and void. The District Court granted summary judgment in favor of defendants. Plaintiff appeals. We affirm.

There is one issue in this case: in fixing boundaries of a rural improvement district, can a board of county commissioners include less than the entire lot within the district so as to equalize costs borne by each lot?

In May 1984, a petition to create a rural improvement district relating to roads and entrance lighting was circulated for signatures in Middle Creek Meadow Subdivisions Nos. 1 and 3. The petition provided, “. . . each lot in the District shall pay an equal share for the costs and expenses of such District, regardless of size.”

The resolution of intention to create a rural improvement district passed by the Gallatin County Commission included 2,000 square feet of each lot closest to the roadway in the boundaries of the district, although the lots varied in size from approximately 38,000 square feet to approximately 312,000 square feet. The boundaries were drawn in this manner so that the assessment against each lot would be equal.

Appellant argues this method of assessment is contrary to Section 7-12-2151, MCA (1983) which provides in pertinent part:

“The board shall assess the entire cost of such improvements against the entire district. Each lot or parcel of land assessed in such district shall be assessed with that part of the whole cost which its area bears to the area of the entire district, exclusive of streets, avenues, alleys, and public places.”

Appellant contends that this statute means the entire area of all lots must be included within the rural improvement district boundaries.

However, in Ricker v. City of Helena (1923), 68 Mont. 350, 218 P. 1049 this Court upheld a rural improvement district which included only the front twenty-five feet of the lots in its boundaries. We held the city council has the power to fix the boundaries of the district regardless of the size of lots owned. “Having the power to fix the boundaries of the district, the council must have the right to fix the same, independently of the ownership of the particular tracts or parcels abutting upon the improvement, otherwise, ... it might be obliged to fix the boundaries in such a manner that gross inequality of costs and benefit would result.” Id. at 360-61, 218 P. at 1052.

Although Ricker involved a special improvement district created by a city council, we hold the case is equally applicable to rural improvement districts created by county commissioners. Under Section 7-12-2103(2), MCA (1983) the county commission must describe the boundaries of a proposed rural improvement district and that power is not affected by the size of existing lots.

The summary judgment for defendants granted by the District Court is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHANEY T. CORNELL, Defendant and Appellant.
    No. 85-485.
    Submitted on Briefs Jan. 23, 1986.
    Decided March 20, 1986.
    715 P.2d 446.
    Allen Beck, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Harold F. Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Chaney Thomas Cornell appeals his conviction on two counts of sexual assault following a jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County. We affirm.

Three issues are raised on appeal. First, was the jury verdict supported by substantial evidence? Second, did the court’s instruction on the definition of sexual contact place undue influence in the minds of the jury as to the status of the defendant as a witness? Third, did the District Court err in denying defendant’s motion for mistrial due to prosecutorial misconduct?

The defendant was convicted of sexually assaulting J., his 10 year old daughter and K., her 11 year old friend. K. testified that the defendant sent J. to a neighbor’s house to call defendant’s residence to see if the telephone was working. When J. called, the defendant told her to stay there for half an hour and then assaulted K. the victim. J. testified to a separate sexual assault which occurred early one morning. In the information charging the two counts of sexual assault, the State alleged the offenses took place in “the summer of 1984.” Defendant argues the sexual assault on K. could not have occurred in the summer of 1984 because the telephone service to defendant’s residence was terminated on April 30, 1984. He further argued the evidence that the assault occurred in the spring should be excluded because the information referred only to the summer. Defendant made á motion in limine to prohibit the State from presenting, on rebuttal, any evidence of a sexual assault during the spring. The District Court reserved ruling pending rebuttal testimony. No rebuttal testimony was presented by the State. During settlement of jury instructions, defendant requested the jury be instructed to ignore all testimony of any sexual assaults during the spring of 1984. This request was denied. Next defendant moved for mistrial due to prosecutorial misconduct in presenting evidence which went beyond the scope and notice of the information. The motion was denied.

On appeal, defendant argued, “[i]t was proven by clear and convincing evidence that the offenses as alleged by the supposed victims could not have occurred . . .” Obviously, the jury did not share that opinion. The jury found the defendant guilty beyond a reasonable doubt of two counts of sexual assault. The standard of review of a jury verdict in a criminal case is “whether there is substantial evidence to support the conviction, viewed in a light most favorable to the State. (Citations omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Plouffe (1982), 198 Mont. 379, 389, 646 P.2d 533, 538. In this case, there was direct testimony from the two victims that they had been sexually assaulted by the defendant. This constitutes sufficient evidence to uphold the conviction.

Further, as to the specificity of the time of the assault alleged in the information, this Court stated in State v. D.B.S. (Mont. 1985), [216 Mont. 234,] 700 P.2d 630, 633, 42 St.Rep. 770, 772, “the primary purpose of an information is to give general notice to a defendant of the charge against him.” Section 46-ll-401(l)(c)(iv), MCA, states a charge shall state, “the time and place of the offense as definitely as can be done . . . .” As we stated in D.B.S., “[t]he statute does not require the exact time, date, month or even year to be specified.” In D.B.S. we recognized that children are generally at a loss to apply times or dates to significant events in their lives, and the fact that the victim cannot set a date for the crime should not be fatal to the State’s case, making the defendant immune from prosecution. In D.B.S. the information alleged a ten month period from January 1, 1983 to October 28, 1983 when the offense of incest occurred. This Court held the information stated a time for the offense with sufficient particularity. Likewise, in this case, the defendant was given sufficient notice as to the acts involved to prepare a defense or assert an affirmative defense.

Second, defendant raises, but does not brief, the issue of whether the District Court’s instruction No. 8 placed undue influence in the minds of the jury as to the status of the defendant as a witness. The District Court’s instruction No. 8 reads: “ ‘Sexual contact’ means any touching of the sexual or other intimate parts of the person of another for the purpose or [sic] arousing or gratifying the sexual desire of either party.” This instruction is the language of Section 45-2-101(60), MCA, verbatim. We fail to see how this instruction could place undue influence in the minds of the jury on the defendant’s status as a witness. The defendant has not specified in his brief the error that occurred here and does not cite any authority to support his contention so required by Rule 23, M.R.App.Civ.P.

Finally, defendant raises the issue that the District Court erred by denying his motion for mistrial due to prosecutorial misconduct. He does not specify what actions constituted prosecutorial misconduct but we assume he is referring to the presentation of evidence that the sexual assaults occurred in the spring of 1984 when the information referred to the summer. This action by the prosecution does not constitute prosecutorial misconduct.

This Court therefore affirms the judgment of the District Court.

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


author: MR. JUSTICE GULBRANDSON delivered

text:
    In the MATTER OF M.C.
    No. 85-344.
    Submitted on Briefs Dec. 5, 1985.
    Decided March 25, 1986.
    716 P.2d 203.

      Terry L. Seiffert, Billings, for appellant.
    Harold F. Hanser, Co. Atty., Billings, for respondent.
   MR. JUSTICE GULBRANDSON delivered

the Opinion of the Court.

M.C., respondent below, appeals a Yellowstone County District Court order committing him to the Montana State Hospital. He contends that testimony regarding incidents which occurred prior to an earlier hearing and regarding an evaluation made after that earlier hearing should have been excluded; that insufficient evidence supported his transfer to the Montana State Hospital; and that his commitment should be reversed because there was insufficient evidence to hold him on an emergency basis. We affirm the order committing M.C. and transferring him to the Montana State Hospital.

On May 23, 1985, M.C. rode his bicycle head-on into an automobile. When questioned by a police officer who responded to the call, M.C. said that he had just had a birthday, no one cared or remembered and that he was tired of it all. That afternoon he telephoned the Billings Mental Health Center attempting to contact his counselor who was not available. M.C. told the secretary that he had a loaded gun to his head and had just ridden his bicycle into a car. He then hung up. The police answered a second call on M.C. that same day when he broke a door at his apartment complex.

David Pierce, a psychiatric social worker at the mental health center who was on emergency call that day, asked the police to take M.C. to the emergency room of Billings Deaconess Hospital. At the hospital M.C. told Pierce that he had a death wish and wanted to hurt himself. Although M.C. cooperated with both the police officers and Pierce, a psychiatrist recommended he be restrained based on his medical history. Pierce wrote to the county attorney as a result of his interview with M.C. and recommended that M.C. be committed for treatment of his mental disorder and advised the county attorney that M.C. had been hospitalized on an emergency hold basis by the psychiatrist and at Pierce’s request.

On May 24, 1985, a deputy county attorney filed a petition for commitment in accordance with Section 53-21-121, MCA. The District Court found probable cause to hold M.C. and, at the initial appearance on May 28, 1985, ordered an evaluation of M.C. in accordance with Section 53-21-123, MCA.

On May 29,1985, the District Court held a final hearing. The court denied M.C’s motions to dismiss and to continue the proceedings. The evidence presented at the hearing concerned M.C‘s history of threatening and disruptive behavior toward his family; toward his fellow students at Eastern Montana College; toward tenants in his apartment complex; and toward fellow patients at Billings Mental Health Center. The county also presented evidence that M.C’s behavior posed a threat to himself. After the commitment hearing, the parties stipulated to, and the court ordered, a three-month commitment at the Billings Mental Health Center or another mental health facility in Montana with the agreement that M.C. would follow the recommendations for outpatient treatment.

When M.C. informed Dr. Dohner of the Billings Mental Health Center that he was to be released to the Center, Drs. Dohner, Hague, Nunez and Harr agreed that such treatment would not be successful nor would it be safe to the community. Based upon their opinions, Dr. Harr wrote to the county attorney on May 31, 1985, two days following the commitment order, and requested a hearing on the question of transferring treatment of M.C. from the Center to Montana State Hospital. This letter served as the basis for the county attorney’s motion requesting a hearing on M.C’s transfer. The District Court ordered a second hearing, held on June 5, 1985, at which time evidence was presented concerning M.C’s failure to cooperate with medical staff and other patients at the Mental Health Center and the Center’s inability to closely monitor his medication. Dr. Dohner testified that Montana State Hospital would be the best place for treating M.C. The District Court ordered M.C.’s transfer to the Montana State Hospital on June 6, 1985. M.C. presents three issues on his appeal:

(1) Did the District Court err in denying his motions in limine?

(2) Did sufficient evidence support his transfer to Montana State Hospital?

(3) Did the District Court err in denying his motion to dismiss?

Between the initial commitment hearing and the transfer hearing, M.C. filed two motions in limine, which the District Court denied. The first motion requested that, at the transfer hearing, the State be precluded from eliciting testimony based on an evaluation of M.C. made after the commitment hearing. The second motion requested that the State also be precluded from eliciting testimony on incidents that occurred before the commitment hearing. In the first issue, M.C. challenges the denial of both motions.

On the first motion, he contends that Sections 53-21-101 et seq., MCA, provides no authority for using evaluations made after a final commitment hearing in a later transfer hearing. On the second motion, he contends the order of commitment was final as to all events litigated at the first hearing; therefore, none of the earlier events should have been referred to at the transfer hearing. Two statutes refer to transfers to other facilities for treatment. Section 53-21-182, MCA, states:

“At any time during the patient’s commitment, the court may, on its own initiative or upon application of the professional person in charge of the patient, the patient, his next of kin, his attorney, or the friend of respondent appointed by the court, order the patient to be placed in the care and custody of relatives or guardians or to be provided outpatient therapy or other appropriate placement or treatment.” (Emphasis added.)

Section 53-21-130, MCA, concerns the transfer of persons in custody of the department of institutions for purposes other than treatment, to a facility where they can receive treatment. It provides procedural safeguards for the person who is being transferred to a more restrictive environment by limiting the transfer to ten days unless the person voluntarily admits himself or the department follows the involuntary commitment proceedings. Section 53-21-182, MCA, while it permits a court to transfer a patient receiving treatment, does not refer to any procedure for transfer and Section 52-21-130, MCA, sets out a transfer procedure only for persons other than those receiving treatment. M.C. v. Department of Institutions (Mont. 1984), [211 Mont. 105,] 683 P.2d 956, 41 St.Rep. 1242. Neither statute restricts what evidence may be admissible when a transfer hearing is held. Reason dictates that any evidence admissible at a final commitment hearing which is relevant to the transfer should be admissible at the transfer hearing. Such relevant evidence may include the opinions of professional persons, and “overt acts, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.” Section 53-21-126(2), MCA. Here, the professional person in charge of M.C. asked that M.C. be placed at Montana State Hospital rather than the Mental Health Center because M.C. was a threat to himself and others. Presumably because the requested transfer would be to a more restrictive environment, the court granted a hearing on the request. At that hearing, the State submitted evidence that M.C.’s previous treatment at the Center was unsuccessful; that he had failed to cooperate with the other patients and medical personnel at the Center; and that he had been found seriously mentally ill at the commitment hearing one week earlier. Medical evaluations of M.C. made by professional persons other than the one appointed by the court would have been admissible at the commitment hearing and are relevant to the reason for the transfer request. Thus, they are admissible at a transfer hearing. Similarly, evidence concerning recent overt acts, relevant to whether Montana State Hospital was the appropriate place for treatment, is admissible at a transfer hearing. We hold that the District Court did not err in denying M.C.’s motions to exclude evidence.

In the second issue, M.C. argues that the evidence was not sufficient to warrant his transfer to Montana State Hospital. M.C. and his counsel stipulated to a commitment to the Billings Mental Health Center or “another mental health facility in Montana” on May 29, 1985. The determinative issue then is only whether Montana State Hospital was the least restrictive environment, pursuant to Section 53-21-120, MCA. The District Court heard evidence on M.C.’s lack of cooperation in the past in taking prescribed medications; the Center’s inability to monitor his medication; M.C.’s explosive behavior which worsens when his medication is at lower levels; and his general inability to cooperate in treatment at the Center. Finally, Dr. Dohner testified that Montana State Hospital was the least restrictive environment in which M.C. could receive the care and supervision he needs. This evidence is sufficient to support the District Court’s action in committing M.C. to Montana State Hospital.

The final issue concerns M.C.’s emergency detention at Billings Deaconess Hospital on May 23, 1985, before the District Court found him seriously mentally ill. He contends that under Section 53-21-129, MCA, the peace officer makes the initial decision on whether an emergency situation exists and here the officer did not make that decision. M.C. also contends the evidence was insufficient to hold him on an emergency basis, relying on In Re Shennum (Mont. 1984), [210 Mont. 422,] 684 P.2d 1073, 41 St.Rep. 1148.

Section 53-21-129, MCA, provides in part:

“(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 . . .” (Emphasis added.)

Subsection (1) merely permits the officer to take a person into custody for an evaluation; it does not, as M.C. contends, give the officer the authority to decide whether the person should be placed in emergency detention. Under subsection (2), the professional person makes the decision on whether the person appears to be seriously mentally ill and should be placed in emergency detention.

M.C. argues that the evidence was not sufficient to hold him on an emergency basis. As noted above, if the professional person determines that the person is seriously mentally ill and an emergency situation exists, that person may be detained.

“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 persons afflicted of the ability to protect his life or health. For this purpose, injury means physical injury ...”

Section 53-21-102(14), MCA. An emergency situation is “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.” Section 53-21-102(4), MCA. Imminent threat or danger is evidenced by “overt acts.” Section 53-21-126(2), MCA. Overt acts includes behavior such as a threat to take one’s life, Matter of Goedert (1979), 180 Mont. 484, 487, 591 P.2d 222, 224; a threat to kill, Matter of J.B. (Mont. 1985), [217 Mont. 504,] 705 P.2d 598, 602, 42 St.Rep. 1335, 1340; and verbal abuse coupled with aggressive physical action such as being “armed” with a baseball bat, throwing food and tearing sheets off a bed, Matter of F.B. (Mont. 1980), 615 P.2d 867, 869, 37 St.Rep. 1442, 1445. The professional person here had adequate information to believe that M.C. was seriously mentally ill and that an emergency situation existed, requiring M.C.’s detention. M.C. telephoned the Mental Health Center and stated he had a loaded gun pointed at his head and that he had just ridden a bicycle into a car. Shortly afterwards, he broke a door at his apartment complex. Later that day, he told the professional person he had a death wish and wanted to hurt himself. Finally, the professional person was aware of M.C.’s medical history. Actual injury need not occur before the statutory requirements are met. Matter of J.B., 705 P.2d at 602, 42 St.Rep. at 1340. Unlike the situation in Shennum, the record is not bare as to why the emergency detention occurred. The evidence here supports the professional person’s determination that M.C. required emergency detention. We hold that the District Court correctly denied M.C.’s motion to dismiss.

M.C.’s detention and commitment are affirmed.

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


text:
    DAVID M. HARMON, Claimant and Appellant, v. VERN D. HARMON, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-469.
    Submitted on Briefs Jan. 9, 1986.
    Decided March 25, 1986.
    Rehearing Denied April 22, 1986.
    716 P.2d 605.

      Lynaugh, Fitzgerald & Hingle, Michael G. Eiselein, Billings, for claimant and appellant.
    Crowley Law Firm, T.G. Spear, Billings, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, David J. Harmon, appeals from the Order of the Workers’ Compensation Court adopting the findings of fact, conclusions of law and judgment of the hearing examiner which established Harmon’s temporary total disability rate as $57.54 per week.

Harmon was injured on December 6, 1984, while employed by his father, Vern Harmon, as a ranch hand in Lavina, Montana. Harmon was injured when a bull ran over the top of him while he was doctoring it. Harmon’s father was enrolled under Plan III of the Workers’ Compensation Act. Harmon was temporarily totally disabled as a result of his injuries.

At the time of his injury, Harmon received $375.00 per month as a salary from his father. At the same time, Harmon was also running his own farm. Harmon’s work on his own place involved the labor of operating a farm as well as coordinating tax return information and record keeping, supply, maintenance, purchase and sale activity, and other such management activities. State Fund conceded that in working his own farm, Harmon engaged in activities sufficiently similar to those of his employment for his father so that his disabling injury at his father’s employment would necessarily disable him from doing some of the work that he did on his own place.

State Fund determined that Harmon’s temporary total disability rate at $57.54 per week, based only upon Harmon’s $375.00 per month salary paid to him by his father for work as a part-time ranch and farm hand. Harmon, however, maintained that his earnings from his separate but identical self-employment on his own family farm and ranch should have been combined with his earnings derived from the employment in which he was injured to properly determine his temporary total disability rate.

On February 8, 1985, Harmon filed a petition for hearing with the Montana Workers’ Compensation Court. The relief Harmon sought was an increase in his compensation rates based upon his “average gross income” as a self-employed rancher/farmer.

By agreement of the parties, the case was submitted to the hearing examiner upon proposed findings and conclusions, briefs, and Harmon’s deposition. The hearing examiner’s decision was issued to and adopted by the Workers’ Compensation Court on August 14, 1985.

The Workers’ Compensation Court concluded that State Fund correctly determined Harmon’s temporary total disability rate at $57.54 per week. The court determined that Harmon had failed to prove that he had any additional wages, beyond his monthly salary from the employment at which he was injured which could be aggregated to increase his compensation rate. The court stated:

“Claimant’s evidence regarding his farm has not established a basis for a determination by this Court that he had any additional wages from his self-employment that increases his temporary total rate under MCA Section 39-71-116(20) and the Montana Supreme Court cases interpreting that section.”

Harmon raises only one issue on appeal: whether the Workers’ Compensation Court erred in failing to allow Harmon to aggregate his wages as a self-employed farmer, together with the wages he earned as a ranch hand, for the purpose of determining his weekly temporary total disability benefit rate.

The general rule is that earnings from concurrent employments may be combined if the employments are sufficiently similar so that a disabling injury at one employment would necessarily disable the employee in respect to the other employment. 2 Larson Workmen’s Compensation Law, Section 60.31(a); Gee v. State Comp. Ins. (1982), 197 Mont. 335, 337, 642 P.2d 1070, 1071; Catteyson v. Falls Mobile Home Center, Inc. (1979), 183 Mont. 284, 288, 599 P.2d 341, 343. Any aggregation of earnings, however, must be done pursuant to the applicable statutory definitions. In Gee, we stated:

“In providing compensation for a temporary total disability (Section 39-71-116(19), MCA), the legislature chose to restrict the compensation to that based upon loss of wages, rather than for a loss of earnings or earning capability as is provided in the statutory definítions of permanent partial disability (Section 39-71-116(12), MCA) and permanent total disability (Section 39-71-116(13)).”

Gee, 197 Mont. at 338, 642 P.2d at 1072.

“Wages” is a term of art. It refers to the “average gross earnings” received by the employee at the time of injury for the usual hours of employment in a week, and overtime is not to be considered. Section 39-71-116(20), MCA. Harmon’s entitlement for weekly compensation benefits is to be computed as “66%% of the wages received at the time of the injury.” Section 39-71-701(1), MCA.

There is no controversy that Harmon would have been entitled to an aggregation of wages if he had proved that there had been any loss of wages other than those he received from his father. Harmon contends that the court should have computed his temporary total disability benefit rate by use of his gross income figures from his projected 1985 income of approximately $35,000.00 or by use of a method of averaging his gross income during the years preceding his injuries. In the alternative, Harmon contends that use of an approximation of reasonable value of the worth of his labors, based upon the cost of living and paying for that labor should have been used. Based on the record, these theories would have changed Harmon’s temporary total disability benefit rate to $286.00 or $248.00 per week, respectively.

Harmon, in essence, is asking this Court to treat the gross income from his farm as “wages.” There can be no doubt but that the term “wages” as defined by Section 39-71-116(20), MCA, is predicated upon an employment relationship which generates income from the employer to the employee. The record here is clear that no such relationship existed in Harmon’s position as a self-employed farmer. Harmon never paid himself a wage. As we stated in Gee, supra, in providing compensation for a temporary total disability, the legislature chose to restrict the compensation to that based on loss of wages, rather than loss of earnings. Clearly, Harmon suffered a loss of earnings on his farm from his disability. This loss of earnings, however, is noncompensable for purposes of his temporary total disability.

We affirm.

MR. JUSTICES HARRISON, MORRISON, WEBER and GULBRANDSON concur.


text:
    ELIZABETH E. SHIELDS and Lester H. Shields, husband and wife, Plaintiffs and Appellants, v. MARGARET THUNEM, Defendant and Respondent.
    No. 84-524.
    Submitted on Briefs Dec. 19, 1985.
    Decided April 1, 1986.
    716 P.2d 217.
    Gregory E. Paskell, Kalispell, for plaintiffs and appellants.
    John H. Bothe, Columbia Falls, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Lester and Elizabeth Shields appeal a Flathead County District Court order which held that appellants had conveyed all their right, title and interest in certain real property to respondent Margaret Thunem. The only issue on appeal is whether the trial judge should have disqualified himself from hearing the case because he partidpated in extensive pretrial settlement negotiations. We affirmatively answer this question and reverse the order of the District Court.

In April 1980, Lester and Elizabeth Shields filed an intervenor’s complaint in Flathead County District Court against Lester’s mother, the respondent here, Margaret Thunem. The intervenor’s complaint sought to set aside warranty deeds signed by the Shields which purported to convey title to certain real property to respondent. The complaint requested that the lower court restore title to the Shields. At the time the intervenor’s complaint was filed, Lester Shields and respondent were both plaintiffs in a quiet title action concerning the same property against a number of defendants. The Flathead County District Court resolved that action in December 1980 by quieting title to the property in the Shields and respondent Margaret Thunem. The Shields then proceeded with their suit against respondent.

The trial in this case was scheduled for July 26, 1984. On the morning of July 26, the parties met with the judge before the trial was to begin. The Shields were not represented by counsel in the meetings with the judge or at trial later that day. The Shields’ version of what happened that morning is set forth in a motion to settle bystander’s bill of exceptions and in two affidavits filed by the Shields in support of the motion. The Shields’ version is as follows. Upon the Shields’ arrival at the courthouse, the trial judge informed them that he was going to mediate or arbitrate a settlement of the case. The judge directed respondent and her attorney to one room and the appellants to another room. The judge then carried settlement offers and counter-offers back and forth between the parties. Appellants discussed their contentions in detail with the judge. The judge stated that appellants should try and settle the case out of court because they would probably lose a trial due to their pro se representation. After much discussion with the judge on the merits of the case, the parties still were unable to reach a settlement. When it became apparent the case would have to proceed to trial, Lester Shields asked the judge to “step down” from hearing the case because Shields believed the judge was prejudiced against the appellants. The judge declined and the case went to trial later that afternoon.

In April 1985, the trial judge held a hearing at which he gave his version of what happened on the morning of the trial. The judge stated that all parties in this case consented to his conducting discussions in an attempt to settle the case. The judge stated that such consent was given with full understanding that he would proceed with the trial if the negotiations failed. He disagreed with the Shields’ assertion that he felt they would lose the case because of their pro se representation. He added that he would not and did not allow the negotiation efforts to affect his perception or treatment of the evidence presented at trial. The judge admits that he met with each party without the other party being present, although he asserts this was done with their consent. He also admits that in these meetings, with one party absent, there were discussions relative to the merits of the case. The judge conceded that, after the negotiations failed and prior to the start of the trial, Lester Shields asked him to excuse himself from the case alleging that the judge was prejudiced against appellants. Lastly, the judge stated that he was not excluding Shields’ affidavits from the record of what happened the day of trial.

Following trial, the lower court found that respondent was the sole owner of the disputed property and, accordingly, the court dismissed appellants’ claims. The Shields appealed and, following Shields’ motion to settle bystander’s bill of exceptions, the lower court held a hearing in April 1985 to prepare a supplemental transcript on appeal. At this hearing, the lower court judge gave his version of what happened the day of trial.

As stated, the sole issue is whether the trial judge should have disqualified himself, upon request, after pre-trial settlement negotiations failed. The judge himself admits he conducted ex parte meetings with the parties at which the merits of the case were discussed. He does not assert that he disclosed the substance of the discussions to the absent party. The record is clear that the trial judge made every effort to encourage the plaintiffs to obtain the services of legal counsel, and that the trial judge was acting in good faith in his efforts to settle a case which had been pending for eleven years.

Few courts have addressed the issue presented in this case. One court that has is the Connecticut Supreme Court. In Timm v. Timm (1985), 195 Conn. 202, 487 A.2d 191, 193, the Connecticut court stated:

“When ... a judge engages in a chambers conference looking to the settlement of a case ... in which he will be called upon to decide the issues of liability and damages . . . [i]t is . . . impossible to avoid questions as to whether the judge can disregard . . . matters disclosed in the conference . . . and whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof, may have some subtle influence on a final judgment after a full hearing .... It is inevitable that the basis is laid for suspicion, no matter how unfounded or unjustified it may be, and that failure to concur in what the judge may consider an adequate settlement may result in the imposition, upon a litigant or his counsel, of some retributive sanction or the incurrence of judicial displeasure.
“. . . When a judge engages in a pretrial settlement discussion in a court case, he should automatically disqualify himself from presiding in the case in order to eliminate any appearance of impropriety and to avoid subtle suspicions of prejudice or bias.” [Citations omitted.]

This Connecticut disqualification rule is partially based upon a specific section of their Code of Judicial Conduct which advises a judge to disqualify himself if he or she has “. . . personal knowledge of disputed evidentiary facts . . . .” Canon 3C(l)(a), Connecticut Code of Judicial Conduct. Montana does not have such a specific provision advising a judge to disqualify himself.

The Massachusetts court in Furtado v. Furtado (1980), 380 Mass. 137, 402 N.E.2d 1024, 1036, stated:

“Where the judge is the trier of fact, he must be most scrupulous both to avoid losing his impartiality and to maintain his unfamiliarity with disputed matters which may come before him and with extraneous matters which should not be known by him.” [Citations omitted.]

Additionally, in a case from the Third Circuit Court of Appeals, the federal court stated:

“. . . the district judges . . . must not permit their role as a negotiator to obscure their paramount duty to administer the law in a manner that is both fair in fact and has the appearance of fairness. Although settlement is important given the rising caseload, it can lead to action that is not consistent with the judicial function.”

Johnson v. Trueblood (3rd Cir. 1980), 629 F.2d 287, 292.

This Court has not previously adopted a procedural rule covering the described situation, but because of the apparent growing trend of trial judges to participate in pre-trial settlement negotiations, we conclude that where a judge is to be the trier of fact, and he participates in pre-trial settlement negotiations which subsequently fail, he should, upon request, disqualify himself from sitting as the trial judge.

In these circumstances, we hold that the Shields’ request was sufficient to require the trial judge to disqualify himself from the case. Therefore, we reverse the District Court judgment and order and remand this case to the District Court for a new trial. Because it is not possible to determine if Lester Shields was formally dismissed, his status as a party plaintiff should be determined upon retrial.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, WEBER, MORRISON and HUNT concur.


author: MR. JUSTICE WEBER

text:
    DANIEL BREESE and Christine M. Breese, Plaintiffs and Respondents, v. STEEL MOUNTAIN ENTERPRISES, INC., a Montana corporation, Bryan K. Stahlberg and Elaine E. Stahlberg, Husband and Wife, d/b/a The Sportsman Bar and Cafe, Defendants and Appellants.
    No. 85-23.
    Submitted Jan. 16, 1986.
    Decided April 1, 1986.
    716 P.2d 214.

      Murray, Kaufman, Vidal & Gordon, Daniel W. Hileman argued, Kalispell, for defendants and appellants.
    Keller & German, Brenda Nordlund and Ann German argued, Kalispell, for plaintiffs and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Christine Breese and Daniel Breese (plaintiffs), wife and husband, filed separate employment discrimination actions in Flathead County District Court alleging violations of the Montana Human Rights Act (Act). The cases were consolidated and tried to a six-person jury which rendered a verdict in favor of Steele Mountain Enterprises, Inc. (Steele Mountain). Judgment was entered for Steele Mountain. Plaintiffs moved for a new trial, claiming that the relief sought under the Act was equitable in nature and the case should have been tried to a judge rather than a jury. The District Court granted a new trial. Steele Mountain appeals. We reverse.

We conclude that the following two issues are determinative:

1. Did the District Court err in granting plaintiffs’ motion for a new trial?

2. Did the District Court err in denying defendants’ motion for attorney fees?

Christine Breese began working at The Sportsman Bar and Cafe in July 1981. Daniel Breese began working at The Sportsman Bar and Cafe on November 1, 1981. Christine worked various jobs including waitress, dishwasher, and cook. Daniel worked as a janitor. Both Daniel and Christine were fired from The Sportsman Bar and Cafe on November 18, 1981.

Christine Breese contends she was fired for being pregnant. Daniel Breese maintains he was fired for being the husband of Christine Breese. Steele Mountain contends they were fired for poor job performance and taking food from the restaurant without permission.

In November 1983, plaintiffs filed separate employment discrimination- complaints against Steele Mountain and Bryan Stahlberg and Elaine Stahlberg d/b/a The Sportsman Bar and Cafe. Initially, no demand was made for jury trial. In May 1984, citing Rule 39(b) M.R.Civ.P., Steele Mountain moved for trial by jury. The motion was granted, and the matter tried to a six-person jury which rendered a verdict in favor of Steele Mountain.

After judgment was entered and notice of entry of judgment mailed, plaintiffs moved for a new trial. Later, Steele Mountain moved for an award of attorney fees. The District Court granted plaintiffs’ motion for a new trial and denied Steele Mountain’s motion for an award of attorney fees.

I

Did the District Court err in granting plaintiffs’ motion for a new trial?

Following jury trial, plaintiffs moved for a new trial. First, they contended the court abused its discretion in granting a late request for a jury trial. Second, they argued an action filed under the Act is equitable in nature and requires trial to a judge rather than a jury.

The District Court granted plaintiffs’ motion for a new trial, ruling in pertinent part:

“An action brought under Title 49, Chapter 2 is equitable in nature, and is akin to an action brought under Title VII of the Federal Civil Rights Act of 1964. Because of the equitable nature of the action, there is no right to a trial by jury in a federal Title VII suit.
“It was error to allow a jury trial in this matter, and the error has substantially prejudiced the Plaintiffs’ case. Plaintiffs’ motion for a new, non-jury trial is GRANTED. (Citations omitted.)”

Plaintiffs contend that the only damages sought were back pay and reinstatement. By analogy to Title VII, plaintiffs maintain these damages are by nature equitable and properly tried to the court rather than a jury. Plaintiffs urge the Court to find a violation of the Act to be a purely equitable claim. Steele Mountain contends that plaintiffs sought other damages that were of a legal nature besides reinstatement and back pay.

The record discloses that plaintiffs submitted evidence of damages other than reinstatement and back pay. Under Instruction 6, the measure of damages was “the amount which will compensate for all the detriment proximately caused thereby . . . whether it could have been anticipated or not.” Likewise, Instructions 10 and 11 provided that if the jury found plaintiffs were terminated unlawfully, or that the defendants engaged in discriminatory practices as alleged, then the jury could award damages in a sum “which would rectify any harm, pecuniary or otherwise. . .” The Court has held that the law of the case is established by the jury instructions:

“[B]y their failure to object to instructions ... in the trial court, plaintiffs assented to the rules of law therein announced and on appeal to this court they will not be heard to urge a theory in conflict therewith. Wallace v. Weaver, 47 Mont. 437, 133 P. 1099. The theory upon which the case was tried in the district court with the acquiescence of the parties is binding upon them here.”

Pappas v. Braithwaite (1945), 117 Mont. 569, 577, 162 P.2d 212, 215. In closing argument which followed the above described law of the case, plaintiffs’ counsel pointed out that the plaintiffs lost their car and suffered anxiety and emotional stress from which the jury could award an adequate figure to compensate the plaintiffs, to make them whole, and to rectify the harm caused by the illegal action.

We therefore conclude that in the present case, a claim for relief under the Act and a legal claim for damages as a result of unlawful discharge were tried in a single proceeding. Assuming only for purposes of argument that reinstatement and back pay are equitable claims, plaintiffs presented both legal and equitable claims to the jury, each claim arising out of common fact issues. In a similar proceeding in Lincoln v. Board of Regents of Univ. System (11th Cir. 1983), 697 F.2d 928, 934, cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983), the Circuit Court ruled on the effect of trying equitable and legal causes of action arising out of a common fact issue and stated:

“An action for reinstatement and back pay under Title VII is by nature equitable and entails no rights under the seventh amendment. An action for damages under Section 1981, however, is by nature legal and must be tried by a jury on demand. When legal and equitable actions are tried together, the right to a jury in the legal action encompasses the issues common to both. When a party has the right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury’s determination of that issue as it affects his disposition of an accompanying equitable claim. (Citations omitted.)”

We approve and adopt the reasoning contained in the above quotation from Lincoln.

In the present case, plaintiffs tried to a jury claims under the Act as well as claims which are legal in nature. Steele Mountain was entitled to have a jury determine whether or not the plaintiffs suffered damages for emotional distress. We hold that the right to a jury trial in the present action encompassed both the claims under the Act and the legal claims for damages, and that the trial judge was bound by the jury’s determination of facts on all issues. We hold that the District Court erred in granting a new trial and remand the case to the District Court with instructions to reinstate the jury verdict and enter judgment in accordance with the verdict.

II

Did the District Court err in denying defendant’s motion for attorney fees?

Section 49-2-509(3), MCA, provides that the court may in its discretion allow the prevailing party reasonable attorney fees. Steele Mountain contends attorney fees should have been awarded because plaintiffs’ case was frivolous and factually baseless. In denying attorney fees, the District Court ruled:

“[A]n award of attorney fees under this statute is wholly discretionary. Attorney fees are rarely awarded to a prevailing party defendant. Where the suit successfully defended was frivolous or factually baseless, attorney fees may be allowed to a prevailing Defendant. This is not true of the case at bar.”

Our review of the record establishes that the District Court did not abuse its discretion in denying attorney fees to Steele Mountain. We will not substitute our discretion for that of the District Court. We affirm the denial of attorney fees.

We reverse and remand with specific instructions that the jury verdict be reinstated, and judgment entered in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON, GULBRANDSON, SHEEHY and HUNT concur.