author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    FRANK WEIGAND, Claimant and Respondent, v. ANDERSON-MEYER DRILLING CO., Employer, and Home Insurance Company, Defendants and Appellants.
    No. 87-258.
    Submitted on Briefs Feb. 4, 1988.
    Decided June 21, 1988.
    758 P.2d 260.

      David E. Bauer, Marra, Wenz, Johnson & Hopkins, P.C., Great Falls, for defendants and appellants.
    Donald R. Marble, Marble & Seidlitz, Chester, for claimant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Defendants Anderson-Meyer Drilling Company and Home Insurance Company appeal from the judgment of the Workers’ Compensation Court. The Workers’ Compensation Court held that Frank Weigand is not barred from compensation by the statute of limitations provision, Section 39-71-601(1), MCA. The court further held that the Weigand’s present condition is the result of a previous compensable injury and thus the defendants are liable. We affirm.

The defendants present two issues on appeal. They are:

(1) Whether the Workers’ Compensation Court erred in finding that Weigand satisfied the filing requirements of Section 39-71-601(1), MCA; and,

(2) Whether there was sufficient evidence to support the Workers’ Compensation Court’s conclusion that Weigand’s present condition is the result of his February 11, 1982, injury.

On February 11, 1982, Frank Weigand injured his left knee when he slipped on ice and hit his knee cap on the angle iron steps of the defendant’s oil rig. It is uncontested that Weigand suffered an industrial accident arising out of and in the course of his employment with Anderson-Meyer Drilling Company. Anderson-Meyer was enrolled under Plan II of the Worker’s Compensation Act with Home Insurance Company being its insurer.

Weigand immediately informed his supervisor of the injury but was able to finish his shift. Weigand had his knee examined at Trinity Hospital in Wolf Point. The examination revealed an injury to the lateral cartilage of the left knee requiring surgery. The operative report revealed that Weigand had an “extremely degenerative (shredded) left lateral meniscus” which was removed during surgery. Following a brief stay in the hospital Weigand was released and immediately returned to work.

Subsequent to the accident Weigand assisted the defendant/employer in completing a Employers First Report, which was filed with Home Insurance. The attending surgeon also filed the attending Physician’s First Report with the insurer as well as his bill for $839.69. Trinity Hospital in Wolf Point submitted a bill to the insurer for Weigand’s surgery in the amount of $2,260.15. These bills were paid by the insurer along with some smaller additional charges and are not an issue in the case.

Weigand’s work history subsequent to his 1982 injury consists ,of oil field jobs and ranch work. While working on his father’s ranch during the summer of 1985 Weigand began experiencing increasing pain in his knee. Weigand’s pain was not due to a new injury or accident but appeared to be the result of everyday wear and tear on the previously injured knee. In August, 1985, Weigand had his knee examined by Dr. James Hinde. Hinde found that Weigand had a degenerative left knee. Hinde felt although there was some deterioration prior to the 1982 injury, the condition was significantly aggravated by the fall and resulting surgery. Hinde further found that the 1982 injury and the subsequent surgery are significant factors in the continued degeneration of Weigand’s knee. Hinde concluded that it was his opinion that Weigand’s degenerative knee condition would preclude him from engaging in any of his former occupations.

Although the insurer had sent Weigand at least two letters instructing him to complete a Form 54 immediately following the accident, he failed to do so. (Form 54 is the standard claim form utilized by insurers). However, Weigand did file a Form 54 compensation claim in March, 1986.

The defendant denied Weigand’s claim for compensation contending that Weigand did not file a claim within one year as required by Section 39-71-601, MCA. The defendant further alleged that Weigand’s present difficulties were not the result of his 1982 injury. On June 10, 1986, the Worker’s Compensation Court held a hearing on the matter. The court concluded that the requirements of Section 39-71-601, MCA, had been satisfied and that Weigand’s current condition is the result of his injury in 1982. From this judgment the defendants appeal.

The first issue that must be examined is whether the Workers’ Compensation Court erred in finding that Weigand satisfied the filing requirements of Section 39-71-601(1), MCA. When reviewing questions of law in workers’ compensation cases, the standard of review is whether the lower court’s interpretation of the law is correct. Poppleton v. Rollins, Inc. (Mont. 1987), [226 Mont. 267,] 735 P.2d 286, 288, 44 St.Rep. 644, 646. We conclude that the Workers’ Compensation Court correctly interpreted the law.

In the immediate case it is uncontested that Weigand was injured in an industrial accident in February, 1982, and that he failed to file a Form 54 within one year. Weigand did, however, assist in preparing the Employer’s First Report. Thus, the issue before the Court is whether submission of a Form 54 is the exclusive method of filing a claim.

The focal point of the controversy is Section 39-71-601, MCA. It provides:

“Statute of limitation on presentment of claim - waiver. (1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.”

In Scott v. Utility Line Contractors (Mont. 1987), [226 Mont. 154,] 734 P.2d 206, 44 St.Rep. 547, this Court had an opportunity to construe Section 39-71-601, MCA, under very similar circumstances. In Scott, as in the present case, the claimant was injured in 1982 and sought to file a compensation claim in 1986. The claimant in Scott also did not file the standard workers’ compensation claim Form (Form 54) for his injury, nor did he sign the Employer’s First Report. However, there was a completed Employer’s First Report submitted to the insurer as well as a medical report which was also submitted to the insurer. This Court affirmed the decision of the Workers’ Compensation Court finding Scott presented his claim within one year, thus satisfying Section 39-71-601, MCA. We held the Employer’s First Report contained ample information to clearly inform the employer and the division of the nature and basis of Mr. Scott’s possible claim. Scott, 734 P.2d at 208, 44 St.Rep. at 547. This Court further stated the medical report included indications that a claim could likely result from Scott’s injury. Scott, supra.

In the present case Weigand immediately told his supervisor of the accident. Weigand assisted the employer in completing the Employer’s First Report, which was submitted to the insurer within two months of the accident. The attending physician’s first report was also submitted to the insurer well within the twelve-month period. In this case as in Scott, the defendant was provided with and received ample information to be informed of the nature and the basis of Weigand’s possible claim. We find that the mandate of Section 39-71-601(1), MCA, has been satisfied.

This issue is controlled by the holding in Scott. The facts are nearly identical except as to the time involved. The earlier case of Klein v. Independent Wholesale Associated Grocers, et al. (1975), 167 Mont. 341, 538 P.2d 1358, was not discussed in Scott, and here the employer and insurer rely on Klein. The deciding point, however, is that there was presented to the employer, and through the employer to the insurer, by the assistance of Weigand, information in writing which gave all the details that a further form to be filled out and presented by Weigand would have given. The purpose of Section 39-71-601 is fulfilled here. We determine to follow the holding in Scott, and anything contained in Klein or earlier cases to the contrary on this set of facts is expressly overruled.

The purpose of Section 39-71-601, MCA, is to give the employer written notice of a worker’s claims within twelve months of the injury or accident in order to allow the employer to investigate the claim and if necessary prepare a defense. Scott, supra. The facts of the present case clearly demonstrate that the objective of the statute has been achieved. We affirm the judgment of the Workers’ Compensation Court finding that Weigand presented his claim within the time limits expressed in Section 39-71-601, MCA.

The defendants next contend the Workers’ Compensation Court erred in finding that there was substantial credible evidence to support the conclusion that Weigand’s current condition is the result of his February 11, 1982, injury. We disagree.

The standard for reviewing the Workers’ Compensation Court’s findings of fact is whether the court’s findings are supported by substantial credible evidence in the record. Poppleton, 735 P.2d at 288, 44 St.Rep. at 646. In the instant case, Dr. Hinde testified that although Weigand had a degenerative left knee prior to his 1982 injury the condition was aggravated by the injury. Hinde further testified that Weigand’s 1982 injury and the subsequent surgery are significant factors in the degenerating condition of Weigand’s knee.

“Our function in reviewing these decisions is only to determine whether substantial evidence exists to support the findings and conclusions and we cannot impose our judgment as to the weight of the evidence.”

Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 483, 665 P.2d 783, 788, citing Viets v. Sweet Grass County (1978), 178 Mont. 337, 583 P.2d 1070.

It is clear from the evidence in the record that substantial credible evidence exists to support the Workers’ Compensation Court’s finding that Weigand’s present condition is the result of his injury of February 11, 1982. The judgment of the Workers’ Compensation Court is affirmed. The case is remanded for a determination of benefits.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES McDON-OUGH and HUNT concur.

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent and I would reverse the judgment of the Workers’ Compensation Court finding that the claimant presented his claim for compensation within the time limits set forth in Section 39-71-601, MCA.

In my view, the majority has effectively repealed Section 39-71-601, MCA in those cases where an Employer’s First Report has been filed, and a medical bill has been submitted and paid.

Section 39-71-601 reads as follows:

“(1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.
“(2) The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months.”

The Workers’ Compensation Court Judge in Finding of Fact No. 24, found:

“The insurer, following the 1982 accident, sent and claimant received, atleast two, and probably four, letters which stated as follows:
“ ‘We have been advised you are claiming injury as the result of an accident which occurred on or about the above date. Please complete the enclosed Claim for Compensation in detail and return it immediately.
“ ‘If you were an employee of our insured on the date you were injured, and if your injury arose out of and in the course of your employment, you are entitled to certain medical and disability benefits as set forth by law.
“ ‘If you are disabled for more than five working days and lose wages, you are entitled to disability benefits. Even though you may not lose wages as a result of this injury, you should complete the enclosed form and return to this office. Should you have problems at a later date and this form has not been filed within one year from the date of accident, all future claims for disability may be barred.
“ ‘If you have any questions regarding the benefits due you, please contact this office or the Division of Workers’ Compensation, Helena, Montana.’ ”

The claimant did not respond to the insurer’s request and failed to submit a written claim for compensation until March 6, 1986, more than four years after the injury. The insurer has thirty days from the receipt of the claim for compensation to accept or deny the claim. Section 39-71-606(1), MCA, reads as follows:

“(1) Every insurer under any plan for the payment of workers’ compensation benefits shall, within 30 days of receipt of a claim for compensation, either accept or deny the claim, and if denied shall inform the claimant and the division in writing of such denial.”

In this case, claimant’s counsel took the position originally that because the insurer had not denied the March 6, 1986 claim in writing within 30 days as required by Section 39-71-606, MCA, the insurer should be held to have accepted the claim even though the injury had occurred more than four years earlier.

The majority, by dispensing with the legislated requirement of a written claim for compensation seems to be creating uncertainty in what should be a certain procedure. What incident now triggers the thirty day period for an insurer to accept or deny a claim for compensation? Is it the receipt of the Employer’s First Report, the receipt of a medical bill by the insurer, or a claim for compensation filed many years after the injury?

The majority states that Weigand assisted the Employer in completing the Employer’s First Report but that statement is not supported in the record and was not found by the court. The record shows that claimant’s brother was employed on the same drilling rig and later drove the claimant to the doctor’s office in Wolf Point. It appears that sufficient information was provided to the employer by someone that the First Report could be submitted but this Court has always required more in previous cases.

The Workers’ Compensation Court found that the completion of Form 54 by the claimant would not have given the employer any more information than it already had and suggested that the claimant may have been confused. Claimant’s work history indicates that he had previously filed a Claim for Compensation for a 1978 injury and subsequently had filed a Claim for Compensation for a 1983 injury. That claim history would indicate a certain degree of sophistication and claimant’s failure to respond in any manner to four solicitations of a claim for compensation should be construed to be a voluntary act.

I would defer to clearly expressed legislative intent and construe the claim requirements of Section 39-71-601, MCA, as written, and would reverse the judgment of the Workers’ Compensation Court.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. LESTER WILLIAM CRAZY BOY, Defendant and Appellant.
    No. 87-424.
    Submitted on Briefs May 6, 1988.
    Decided June 21, 1988.
    757 P.2d 341.

      Patrick F. Flaherty, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Jeff McAllister, Deputy Co. Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Lester William Crazy Boy (defendant) appeals from a Cascade County District Court order denying his motion for a new trial after his conviction for deliberate homicide. We affirm.

On March 3, 1987, defendant attended a party at an apartment in Great Falls, Montana. At approximately 10:15 p.m. that night, Jess Monty Cochran (Cochran) arrived at the apartment and asked where the women were. Another person present at the party, Xavier Ortiz, answered that defendant was the closest thing to a woman at the party to imply that defendant was homosexual. Cochran proceeded to assault defendant who was passed out in a sitting position on a couch. Defendant awakened and attempted to defend himself. The fight was broken up only to be resumed a few minutes later. Cochran apparently had an aversion for homosexuals and continued to badger and insult defendant during the evening.

The suggestion was made that the two men take their fight outside. Cochran went to the front door and waited for defendant. Defendant went to the kitchen and selected a five-inch serrated kitchen knife. Defendant then approached Cochran while Cochran’s back was turned. Defendant grabbed Cochran, turned him around, said “nobody calls me a . . . queer,” and proceeded to stab Cochran. Cochran died the next day of a severed renal vein.

Defendant was charged by information on March 5, 1987, with deliberate homicide pursuant to Section 45-5-102(l)(a), MCA, for the stabbing death of Jess Cochran. A jury convicted defendant of deliberate homicide on July 9, 1987. On August 26, 1987, the District Court heard arguments on defendant’s motion for a new trial and denied the motion on the same day. Defendant appeals from the order denying his motion for a new trial and raises the following issues:

1.- Is there substantial evidence in the record to support a conviction for the crime of deliberate homicide?

2. Did the District Court err in excluding evidence regarding the nature of the apartment where the stabbing took place, demonstrative evidence of defendant’s fighting abilities, and evidence of the victim’s prior violent acts?

3. Was the jury properly instructed on the law of circumstantial evidence, self-defense, and the duty to retreat?

4. Is defendant entitled to a new trial on the basis of jury misconduct?

The standard of review here is whether the evidence, when viewed in a light most favorable to the State, is sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. State v. Gilpin (Mont. 1988), [232 Mont. 56,] 756 P.2d 445, 45 St.Rep. 863, 873; State v. Tome (Mont. 1987), [228 Mont. 398,] 742 P.2d 479, 481, 44 St.Rep. 1629, 1630; State v. Geyman (Mont. 1986), [224 Mont. 194,] 729 P.2d 475, 476, 43 St.Rep. 2125, 2126. We have reviewed the record and conclude that there is substantial evidence which satisfies the required standard of review.

Defendant was convicted of deliberate homicide pursuant to Section 45-5-102(l)(a), MCA, which provides that “[a] person commits the offense of deliberate homicide if. . .he purposely or knowingly causes the death of another human being.” Defendant contends that the evidence can only support an acquittal based on the defense of justifiable use of force. Defendant urges this Court to review the testimony of certain eyewitnesses to the crime to conclude that the jury was mistaken in finding him guilty. It was the jury’s prerogative to accept or reject defendant’s claims of self defense in this case. State v. Van Haele (1983), 207 Mont. 162, 166-167, 675 P.2d 79, 81-82. When confronted with two versions of the incident in question, one version which supports acquittal and another which supports a conviction, the jury must determine which version is reasonable. Cf. Tome, 742 P.2d at 481. In addition to defendant’s alleged evidence, the jury was also presented with evidence that defendant, instead of remaining in the kitchen, selected a five-inch knife, approached an unarmed Cochran from behind, and stabbed him several times. A reasonable trier of fact could have concluded from the evidence that defendant was guilty of deliberate homicide.

Defendant next contends that the District Court erred in making certain evidentiary rulings. The first contested evidentiary ruling concerns testimony regarding the nature of the apartment complex in which the crime occurred. Defendant sought to solicit testimony from several witnesses which tended to show that the apartment complex was “condemned, filthy, substandard, and a dangerous hovel.” This evidence, defendant asserts, is relevant to support an inference that he was placed in fear of bodily injury because dangerous surroundings can “magnify the fear of the victim [defendant].” Defendant does not cite any legal authority to support this assertion.

It is within the discretion of the District Court to rule on the admissibility of evidence and we will not disturb the District Court’s ruling unless there was an abuse of that discretion. State v. Breitenstein (1979), 180 Mont. 503, 509, 591 P.2d 233, 236. The State contends that the offered evidence concerning the apartment complex is not relevant to any issue in this case. We agree. Evidence of the history of the apartment complex is not relevant as to whether defendant knowingly or purposely committed deliberate homicide nor is the evidence relevant to his claim of self defense. Rules 401, 402, M.R.Evid. We hold that the District Court did not abuse its discretion and properly excluded the evidence in question.

Defendant also believes that the District Court should have allowed him to give the jury a demonstration as to “how he punches like a woman, blocks like a sissy and why a knife was an appropriate choice [to equalize Cochran’s fighting prowess].” Defendant argues that this evidence tends to show that he could not defend himself without the use of a weapon. The District Court refused to allow a “side show” of defendant’s ability to defend himself. The State points out that the record contains ample evidence of defendant’s fighting abilities and argues that the District Court did not err in prohibiting actual physical demonstrations. We agree. The demonstrative evidence in question was cumulative and its exclusion does not constitute reversible error. Rule 403, M.R.Evid.; State v. Short (Mont. 1985), [217 Mont. 62,] 702 P.2d 979, 983, 42 St.Rep. 1026, 1031.

Defendant next contends that the District Court should have allowed him to introduce evidence of Cochran’s prior violent acts. The District Court ruled that such evidence was admissible only if defendant was aware of Cochran’s violent propensities at the time of the crime. No objection was made to the District Court’s ruling on this matter at the time of trial. Defendant concedes that he was unaware of Cochran’s violent history and that such evidence is inadmissible, but urges this Court to adopt a new rule. We need not address defendant’s request that we adopt a new rule of law on this issue because we will not'address an issue raised for the first time on appeal. Gilpin, [232 Mont. 56,] 756 P.2d at 454, 45 St.Rep. at 876.

Defendant’s third contention of error deals with the District Court’s refusal to give four jury instructions. Defendant offered a jury instruction regarding the effect of circumstantial evidence which the District Court refused on the grounds that the instruction could only be given in a case based solely on circumstantial evidence. The offered jury instruction in question contained the following relevant language:

“[I]f the jury after careful and impartial consideration of all the evidence in the case, has a reasonable doubt that a defendant is guilty of the charge, it must acquit. If the jury views the evidence in the case as reasonably permitting either of the two conclusions — one of innocence, the other of guilt — the jury should of course adopt the conclusion of innocence.”

Defendant argues that the above portion of the instruction was necessary because he “was in an alcoholic blackout on the night in question and had no ability to recall and testify to his state of mind and the reasonableness of his actions.”

Defendant asserts that his subjective state of mind can only be judged by direct eyewitness testimony. It is exactly the direct evidentiary nature of this eyewitness testimony which serves to defeat defendant’s claim for his offered instruction. State v. Ryan (Mont. 1987), [229 Mont. 7,] 744 P.2d 1242, 1244, 44 St.Rep. 1735, 1737. This case was based solely on direct evidence. The eyewitnesses testified as to the events surrounding the crime. Defendant’s offered instruction is proper where the State’s case rests substantially or entirely on circumstantial evidence. State v. Stever (Mont. 1987), [225 Mont. 336,] 732 P.2d 853, 859-60, 44 St.Rep. 283, 291.

Defendant also makes a passing argument that the District Court erred in refusing to instruct the jury on the State’s burden of proof, self-defense, and the duty to retreat. The District Court refused several of defendant’s offered instructions on the grounds that the instructions were incorrect statements of the law and/or that other given instructions sufficiently covered relevant legal theories. The State directs our attention to the jury instructions given in this case to argue that it is not error for the District Court to refuse an instruction that is adequately covered by the instructions that were given as long as the rights of the defendant were fully protected. We have reviewed the instructions given and refused and agree with the State that the District Court did not err in instructing the jury. State v. Sunday (1980), 187 Mont. 292, 609 P.2d 1188.

Defendant’s final contention of error is that the District Court should have granted a new trial because a juror allegedly read a July 9, 1987, article in the Great Falls Tribune newspaper which contained the following:

“Deputy County Attorney, Steve Hagerman, who with colleague Jeff McAllister is prosecuting Crazy Boy told McCarvel ‘the evidence is replete he has resorted to fisticuffs in the past, and to knives.’ He mentioned instances from past reports that Crazy Boy hit another man with a beer bottle, and was arrested for misdemeanor assault after waiving a knife.”

In support of defendant’s motion for a new trial, defendant’s attorney submitted an affidavit from his secretary in which she claims to have heard a juror admit to reading the newspaper and articles about the trial during trial.

Section 25-11-102(2), MCA, provides the following language pertinent to this issue:

“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“(2) misconduct of the jury. Whenever any one or more of the jurors have been induced to assent to any general or special verdict or to a finding on any general or special verdict or to a finding on any question submitted to them by the court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.”

In light of the above statute, defendant’s argument must fail for two reasons. First, defendant has not identified the juror nor has he submitted an affidavit from that juror. Second, defendant has failed to show that the juror was induced to assent to the verdict in this case or that any of defendant’s rights have been materially affected. In short, defendant has shown no prejudice and the District Court did not err in denying his motion for a new trial.

Affirmed.

MR. JUSTICES HARRISON, WEBER, McDONOUGH and SHEEHY concur.


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SALLY A. BARNES, Defendant and Appellant.
    No. 87-461.
    Submitted on Briefs May 12, 1988.
    Decided June 21, 988.
    Rehearing Denied Aug. 17, 1988.
    758 P.2d 264.

      Sally A. Barnes, Thompson Falls, pro se.
    Mike Greely, Atty. Gen., Peter Funk, Asst. Atty. Gen., Helena, Claude I. Burlingame, Co. Atty., Thompson Falls, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Sally Barnes, hereafter referred to as “defendant,” appeals her conviction for selling beer and wine without a valid license from the Department of Revenue, a violation of Sections 16-6-301 and 16-6-302, MCA. We affirm.

The record shows that the defendant’s license to serve beer and wine on the premises of her restaurant was revoked on March 15, 1986 after the defendant had failed to renew the license. The record further reveals that two undercover investigators were served a total of six beers during three different trips to the restaurant in early October 1986 and then obtained a search warrant to confiscate the beer and wine and related evidence. The defendant was charged in Sanders County District Court with knowingly or purposely selling or keeping for sale alcoholic beverages without a license.

The defendant refused to plead to the charge at her arraignment so the District Court entered a not guilty plea for her. The case went to trial before a jury of Sanders County residents on May 11, 1987 and that jury, having heard the evidence presented, returned a verdict of guilty. The defendant raises the following issues on appeal:

1. Do the licensing statutes forbid her from selling or serving beer and wine without a valid license?

2. Did the Montana District Court have jurisdiction over the matter?

3. Does such jurisdiction allow the court to enter a not guilty plea on her behalf; to deny her challenge to the entire pool of prospective jurors; to refuse her request to have a non-lawyer represent her; to rule that the State need not produce a “victim;” and to refuse her proposed instructions?

The defendant has asserted throughout that as a natural born, white citizen she has a common-law right to sell beer and wine without a license from the State. The defendant’s common law rights, whatever they may be, give way to a licensing system established by the Legislature to regulate the sale of alcoholic beverages. The United States Constitution contains two clauses protecting the privileges and immunities of citizens. Article IV, Section 2 protects citizens of one state from the actions of another, see Toomer v. Witsell (1948), 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460, 1471; while the Fourteenth Amendment protects a citizen’s federal rights from abridgment by the states. The protections afforded by these clauses are not absolute and will yield to the reasonable exercise of state police powers. Toomer, 334 U.S at 396, 65 S.Ct. at 1162; Travis v. Yale & Towne Mfg. Co. (1920), 252 U.S. 60, 79, 40 S.Ct. 228, 231, 64 L.Ed. 460, 469. Not all statutes imposing regulations abridge a citizen’s privileges and immunities. Statutes regulating the sale of alcoholic beverages under the Twenty-first Amendment are a case in point. States have “broad power[s] under the Twenty-first Amendment to regulate the times, places, and circumstances under which liquor may be sold.” New York State Liquor Authority v. Bellanca (1981), 452 U.S. 714, 715, 101 S.Ct. 2599, 2600, 69 L.Ed.2d 357, 360.

Section 16-1-101(3), MCA, declares the licensing system to be an exercise of the State’s police power intended to protect the “welfare, health, peace, morals, and safety of the people . . .” This Court has held that the sale of alcoholic beverages is a matter that is “subject to the regulation and control of the police power of the state . . .” Feurherm & Neiss v. Schmaing (1979), 181 Mont. 136, 142, 592 P.2d 924, 927; State v. Andre (1936), 101 Mont. 366, 371, 54 P.2d 566, 568; see also Stephens v. City of Great Falls (1946), 119 Mont. 368, 372, 175 P.2d 408, 410. Sections 16-6-301 and 16-6-302, MCA, apply to the defendant just as they apply to every other resident of Montana. This latter section makes it a felony offense to sell or keep for sale alcoholic beverages without a license. This restriction is a valid application of the State’s police power.

The defendant failed to preserve any objection to the search warrant. However, we note also that the investigators complied with Section 16-6-102, MCA, in securing the search warrant. The investigators were able to state of their own knowledge that defendant was serving beer and knew from two sources, one of them defendant’s employee, that defendant did not have a valid license. They showed the warrant to defendant while executing the search and she was provided with a copy of the warrant and all supporting paperwork. The investigators knew an offense was being committed, they established reasonable cause, and were able to describe the place to be searched and the articles to be seized, all in accord with Section 46-5-202, MCA, and Article II, Section 11 of the Montana Constitution.

District Courts are courts of general jurisdiction and have jurisdiction over felonies. See Article VII, Section 4 of the Montana Constitution, Sections 3-5-302(l)(a), 46-2-201, MCA. “Under section 3-5-302(1), MCA, the District Court is given original jurisdiction in all felony criminal cases and ‘cases of misdemeanor not otherwise provided for.’ ” State v. Campbell (Mont. 1981), [191 Mont. 75,] 622 P.2d 200, 202, 38 St.Rep. 19, 21. The defendant suggests that her status as a natural-born, white citizen deprives the District Court of jurisdiction, but has cited no binding authority for such a claim.

When defendant refused at her second hearing for arraignment to enter a plea, the District Court entered a plea of not guilty for her, in accord with Section 46-12-204(1), MCA. This did not prejudice defendant’s rights. This complies with the law, which requires a plea on the defendant’s part. See State v. Stevens (1946), 119 Mont. 169, 172, 172 P.2d 299, 301; State v. Clancy (1898), 20 Mont. 498, 502, 52 P. 267, 268.

Next the defendant claims the trial jury was improperly constituted. Sections 3-15-301 and 3-15-303, MCA, define the qualifications of a juror. Defendant has failed to show that any of the jurors failed these qualifications and her effort to challenge the whole panel was without merit since she failed to discover any inherent interest or bias held by any of the prospective jurors, as required in Section 46-16-304(2), MCA. We will not disturb the District Court’s ruling where defendant has not proven an abuse of discretion. It is apparent that defendant meant not to disqualify these jurors but only to substitute others who might share defendant’s views concerning licensing and other government regulation. The right of challenge is to reject individual panel members, not to select those who might be more sympathetic. State v. Huffman (1931), 89 Mont. 194, 198, 296 P. 789, 790.

While defendant had the inalienable right to represent herself, she had no right to demand a non-lawyer he allowed to represent her. Section 37-61-211, MCA, provides that only licensed attorneys may practice law and the District Court was without authority to allow a non-lawyer to represent the defendant. Swift v. State (Mont. 1987), [226 Mont. 439,] 736 P.2d 117, 119, 44 St.Rep. 786, 789; In re White (1918), 54 Mont. 476, 478, 171 P. 759, 760. Similarly the court acted correctly when it ruled that the State did not have to produce a “victim” of the defendant’s offensé. Section 16-6-302, MCA, says that any person who sells or keeps for sale alcoholic beverages without a valid license is guilty of a felony. That law does not require the State to produce a “victim” if it can show, as the jury concluded it did here, that the defendant knew she was without a license and decided to continue selling beer and wine without paying her fair share for that privilege. In a sense the entire state, and every resident thereof other than the defendant, was the “victim” of the defendant’s conduct.

It is entirely within the discretion of the District Court to decide how to instruct the jury. We will not overturn except for an abuse of discretion. Although the instructions offered by the defendant were all rejected we note that they fail to note the law or cite Montana authority and that the few points they do make were included in the instructions given by the court. This does not represent abuse of discretion. See, Webcor Electronics, Inc. v. Home Electronics, Inc. (Mont. 1988), [231 Mont. 377,] 754 P.2d 491, 45 St.Rep. 695, 697; In the Matter of the Estate of Hogan (Mont. 1985), [218 Mont. 428,] 708 P.2d 1018, 1019, 42 St.Rep. 1711, 1712. We also note that her instructions would have allowed the jury to assume the court’s duty of determining questions of law. Section 46-16-103(2), MCA, restates the doctrine that jurors decide facts and judges interpret the law. We will not deviate from that doctrine.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER and McDONOUGH concur.


text:
    POULSEN’S, INC., a Montana corp., Plaintiff and Respondent, v WILLIAM J. WOOD, Defendant and Appellant.
    No. 87-530.
    Submitted on Briefs May 12, 1988.
    Decided June 21, 1988.
    756 P.2d 1162.

      LaRue Smith, Great Falls, for defendant and appellant.
    Cure, Borer & Davis, Dennis Tighe, Great Falls, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from a judgment of the Eighth Judicial District Court, Cascade County, granting plaintiff/respondent Poulsen’s, Inc. (Poulsen’s) summary judgment motion against defendant/appellant, William J. Wood (Wood) for recovery of principal and interest due on a delinquent promissory note and attorney’s fees pursuant to the terms of the note. The judgment is appealed from by Wood who filed a motion for summary judgment on a counterclaim at the trial court level alleging the note involved was usurious. We affirm and remand for determination of reasonable attorney’s fees and costs on appeal.

Wood presented no issue for appeal on this case in his brief required by Rule 23(a)(2), M.R.App.P. Therefore, the issue as presented by Poulsen’s will be addressed by the Court. This issue is as follows:

Whether the District Court erred in granting summary judgment in favor of Poulsen’s?

Poulsen’s is engaged in the building supply business. Prior to April 29, 1981, Wood purchased from Poulsen’s $6,085.48 worth of building materials. On April 30, 1981, Wood executed a promissory note, the first five paragraphs of which are important in this case, stating the following:

“For Value Received, the undersigned promises to pay to the order of Poulson’s [sic] Inc., a corporation of Great Falls, Montana, at its office in Great Falls, Montana, in lawful money of the United States, the principal sum of SIX THOUSAND EIGHTY FIVE and 48/100 ($6,085.48) at the times and in the manner as follows:
“On or before the first day of November 1, 1981, together with interest thereon at the rate of eighteen percent (18%) per annum from the date hereof until paid, which interest shall be due and owing at the same time as the principal hereof.
“Any payments made hereunder shall be credited first to interest at the aforesaid rate with the remaining balance to principal reduction.
“In case suit shall be brought for the collection of any sum payable hereunder, or if this note or any part thereof shall be collected upon demand of an attorney, the undersigned hereby agrees to pay all costs of collection, including attorney fees.
“Anything herein contained to the contrary notwithstanding, the undersigned does not agree and shall not be obligated to pay any amount which would render this obligation usurious.”

On March 30, 1987, Poulsen’s filed a complaint against Wood for recovery of the principal and interest due on the note plus the costs of suit and attorney’s fees. In response to the complaint, Wood filed an answer and counterclaim for usury. Wood admitted executing the note, that it was signed on April 30, 1981, and that he was in default under the terms of the note because he had failed to pay any of the principal and interest due on the note by November 1, 1981.

However, Wood denied the amount due on the note in his counterclaim because, he alleged, “[t]he note ... is usurious on its face in violation of Sections 31-1-106 and 31-1-107 MCA and the defendant is entitled to recover from the plaintiff the penalty for usury provided by Section 31-1-108, MCA.”

On May 7, 1987, pursuant to Rule 56, M.R.Civ.P., Wood filed a motion for summary judgment on his counterclaim. Tn his brief, Wood stated that the maximum allowed interest provided by Section 31-1-107(1), MCA, was 17% and therefore the note was usurious. Attached to this memorandum was an “affidavit on cross-claim [sic]” signed by LaRue Smith, (Smith) counsel for Wood, stating: “Contract interest rates in Montana are legally limited by the provisions of Section 31-1-107 MCA to no more than 10% or ‘4 percentage points in excess of the discount rate on 90 day commercial paper in effect at the federal reserve bank in the ninth federal reserve district’ on the date of the contract. In this date [sic] the controlling contract date is 29 April 1981. The Montana federal reserve bank in Helena has advised the undersigned that on this date the publicly published and established discount rate on 90 day commercial paper was 13%. (Emphasis added.)”

Under this statute, therefore, Poulsen’s could have charged 17 % on the note — 13% plus the additional 4% in excess of the discount rate on 90 day commercial paper. On May 19, 1987, Poulsen’s filed its motion for summary judgment supported by an affidavit of Harold Poulsen, Vice-President of Poulsen’s. Harold Poulsen’s affidavit stated that the promissory note was not prepared by Poulsen’s Inc. and that it was Harold Poulsen’s belief that the note was prepared by Wood’s attorney. Poulsen’s pointed to a demand letter sent by its attorney that calculated the maximum allowable interest rate to be 17 % and argued that this figure was based on paragraph five of the promissory note that Wood was not required “[t]o pay any amount which would render this obligation usurious.”

A hearing on the motions was held July 13, 1987 and the court issued an order and memorandum decision on July 14, 1987. Prior to the hearing, Wood filed a motion to strike the affidavit of Harold Poulsen on grounds it stated irrelevant and immaterial issues involved in the case and that the complaint and attached note were all the District Court should consider. This motion was denied.

The District Court concluded that the note was not for a loan of money but was evidence of the amount owed by Wood for purchased materials. Therefore, the court found the usury statutes did not apply. The court ordered that Poulsen’s was entitled to summary judgment for the principal of $6,085.48 plus 17 % interest, attorney’s fees and costs.

Because entry of judgment setting the specific amount due was not issued, premature notice of appeal was filed by Wood on July 16, 1987. This Court issued an order on August 19, 1987, pursuant to Rule 22, M.R.App.P., dismissing the appeal because a final judgment had not been entered. A subsequent hearing was held and the District Court issued a judgment, on September 28, 1987, granting Poulsen’s $14,547.86. This total amount reflected the principal amount due on the note, $6,085.48, interest calculated at 17%, $1,784.00 for attorney’s fees, and $46.70 for costs.

Post-trial motions for a new hearing or in the alternative to amend. the judgment, pursuant to Rules 59 and 60, M.R.Civ.P., were filed by Wood on October 8, 1987. Wood also attempted to file a Rule 12(b)(6), M.R.Civ.P. motion to dismiss on grounds that an “open account” or “retail installment sale” was not pleaded by Poulsen’s and if so, was barred by the statute of limitations. On October 16, 1987, the District Court denied Wood’s post-trial motions as being a “reargument of [Wood’s] position at the earlier hearing. . .” on summary judgment.

Wood’s second notice of appeal was filed October 29, 1987. This document stated: “Notice is given that the defendant appeals the judgments in the above entitled case ...” The only judgment filed in this case was the September 28, 1987 judgment and it is assumed by this Court that it is from this judgment that Wood appeals.

The standard of review on summary judgment has been made clear by this Court.

“On review, we will uphold the summary judgment if there is no genuine issue of material fact and the evidence shows the moving party is entitled to judgment as a matter of law. Sevalstad v. Glaus (Mont. 1987), [227 Mont. 117,] 737 P.2d 1147, 1148, 44 St.Rep. 930, 932. . .

“When the movant has met this initial burden, the party opposing the motion must supply evidence supporting the existence of a genuine issue of fact. [Citation omitted.] Rule 56(c), M.R.Civ.P.” Vogele v. Estate of Schock (Mont. 1987), [229 Mont. 259,] 745 P.2d 1138, 1141, 44 St.Rep. 1950, 1953.

We note that summary judgment motions were filed by both parties based on their statement of the facts and accompanying affidavits. Wood’s initial argument is that both parties were bound by the admissions in the pleadings and, since the note was attached to the complaint and only the amount due for principal and interest was denied, the lower court erred in its findings that went beyond the issue of the amounts due under the note. Rule 56(c), M.R.Civ.P. allows the court to render judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added.)

Poulsen’s affidavit explains facts surrounding the execution of the promissory note and is relevant to the issue before the court. The affidavit aids the court in determination of the intent involved in the signing of the note. Intent is a necessary part of a usurious transaction. There must be an intent that the lender is to take more than the legal rate of interest for the sum loaned. Hanson v. Bonner (1983), 202 Mont. 505, 512, 661 P.2d 421, 424; 45 Am.Jur.2d 129, Interest and Usury Section 160.

Wood claims the District Court erred in determining an “open account” existed. We hold this argument is unmeritorious. The court merely stated Wood purchased materials “on open account prior to April 29, 1981” from Poulsen’s. Evidence that supports this statement is present in Poulsen’s affidavit. No material issue of fact was created because Wood never came forth with any contrary evidence.

Wood also finds fault with statements by the District Court that Wood “tendered” the note to Poulsen’s and the note “memorialized” the amount Wood owed. Again, these statements are supported by Poulsen’s affidavit and the pleadings and Wood did not create a material issue of fact by the affidavit of his attorney, or in his pleadings that merely dealt with the usurious interest claim.

Wood claims the District Court erred in finding: “on February 20, 1987, Plaintiff’s counsel mailed a demand letter to Defendant referring to the note and making demand for the principal and interest (calculated at 17%).” This finding was based on a letter sent by counsel for Poulsen’s and did indeed calculate interest at 17%. The letter was attached to Wood’s motion for summary judgment and presented to the District Court. Wood now claims on this appeal that the appropriate interest rate should have been 9 Vi % because on February 20, 1987, that was the maximum legal rate.

We disagree with Wood’s contentions for two reasons. First, we note that Section 31-1-107(2), MCA states: “a loan that is not usurious when made is lawful for the duration of the loan . . .” Here, as is evident from Smith’s affidavit, the legal rate of interest would be 17% when the note was signed. As this was not a usurious loan in 1981, it cannot now he claimed that it became usurious when demand was made.

Secondly, paragraph five of the note clearly states that “the undersigned does not agree and shall not be obligated to pay any amount which would render this obligation usurious.” In any interpretation of a written contract, the contract must be interpreted as a whole. Section 28-3-202, MCA; Julian v. Montana State University (Mont. 1987), [229 Mont. 362,] 747 P.2d 196, 199, 44 St.Rep. 2046; Bender v. Rookhuizen (Mont. 1984), [211 Mont. 366,] 685 P.2d 343, 346-347, 41 St.Rep. 674. An ambiguity exists due to the two conflicting statements as to which percentage of interest controls in this case, and the District Court was proper in interpreting the contract as it did.

Wood contends the District Court ignored a material issue of fact in that the note is a novation “given on an account stated” under Section 28-1-1501, MCA. To some extent, Wood is accurate as the definition of novation “is the substitution of a new obligation for an existing one.” Poulsen’s disputes this claim by arguing that the note was for merchandise already purchased and therefore was not for money loaned, as the court found, taking the claim out of the usury definition of Section 31-1-101, MCA. We will not dismiss this action as simplistically as Poulsen’s suggests.

We hold, nonetheless, that neither of these arguments creates a question of material fact that would allow us to reverse the District Court. Even as a novation, a usurious amount was not found by the District Court. The judgment allows recovery of the balance due plus interest in the legal amount of 17%.

Finally, Wood claims that attorney’s fees were improperly awarded by the District Court. The note specifically provides that “the undersigned hereby agrees to pay all costs of collection, including attorney fees” in case suit is required to collect on the amount due. Attorney’s fees are allowed when they are provided for by statute or contractual provision. Hoven v. Amrine (Mont. 1986), [223 Mont. 15,] 727 P.2d 533, 534, 43 St.Rep. 1977, 1978. See also, Sections 25-10-301 and 28-3-704, MCA. The District Court did not err in granting attorney’s fees.

Further, Poulsen’s has requested its attorney’s fees in responding to this appeal. An award of attorney’s fees is proper on appeal where the fees are based on a contract. Lauderdale v. Grauman (Mont. 1986), [223 Mont. 357,] 725 P.2d 1199, 1200, 43 St.Rep. 1785; Diehl and Associates v. Houtchens (1979), 180 Mont. 48, 53, 588 P.2d 1014, 1017; Burnham, Contract Damages, 44 Mont.L.Rev. 2, 47 (1983). On the facts of this case and appeal, we hold Poulsen’s should receive reasonable attorney’s fees and costs incurred.

No material issue of fact has been raised by Wood in this case. Poulsen’s appropriately cites to Drug Fair Northwest v. Hooper Enterprises, Inc. (Mont. 1987), [226 Mont. 31,] 733 P.2d 1285, 1287, 44 St.Rep. 435, for the proposition that a party opposing summary judgment has an affirmative duty to respond by affidavit or sworn statement with specific facts which raise a disputed issue. This burden has not been met by Wood in this case.

We affirm and remand for determination of reasonable attorney’s fees and costs on appeal.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF RODNEY GLENN BUTLER, Petitioner and Respondent, v. ALBERTA ESTHER BUTLER, Respondent and Appellant.
    No. 88-64.
    Submitted on Briefs June 2, 1988.
    Decided June 21, 1988.
    756 P.2d 1159.

      Donald E. Hedman, Whitefish, for respondent and appellant.
    Alexander & Baucus, Ward E. Taleif, Great Falls, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Alberta Butler appeals from the judgment of the District Court, Eleventh Judicial District, Flathead County, dissolving the marriage of Alberta and Rodney Butler and distributing the marital property. We reverse and remand for introduction of evidence relevant to the appraisal of motel property consistent with this opinion.

The issues considered on appeal are:

1. Did the District Court err in basing motel property value on a 1982 tax appraisal in the face of current appraisal testimony and market conditions?

2. Did the District Court err in refusing to recognize the rights of survivorship from marital property owned in joint tenancy when husband died after the dissolution decree but before final property settlement?

Rodney and Alberta Butler were married in 1963. Two children born of the marriage have reached their majority. Alberta was age forty-two at the time of trial. Rodney, age forty-eight at the time of trial, was a teacher in Chester, Montana, where the Butlers owned a home in joint tenancy with right of survivorship.

In August 1982, the Butlers purchased an eighteen-unit motel, the Cedar Lodge, in Columbia Falls, Montana, for $245,000. From the time of purchase until March 1984, Rodney resided in Columbia Falls and commuted to Chester to teach. During this time, Rodney contributed approximately $2,000 a month to the joint account to assist in maintaining the motel. After the parties separated in March 1984, the wife managed the motel alone and had no other source of income. Other marital property was equitably disbursed and is not at issue here.

The Butlers separated in March 1984. Rodney filed for divorce in January 1985 and was diagnosed with terminal cancer in September 1986. A decree dissolving the marriage was entered in December 1986 with property settlement left pending. Findings of fact, conclusions of law and an order dividing the marital estate were entered February 1987. The District Court, in April 1987, set a hearing on Alberta’s motion to alter or amend the February 1987 order; a hearing was held on this motion in July 1987. The District Court entered its order denying the motion to alter or amend in December 1987, and this appeal followed. It must be noted that Rodney died in June of 1987, prior to the hearing on the motion and prior to the Court’s ruling on the motion.

Issue 1. Valuation of Motel Property

Alberta contends that Rodney was awarded substantially free and unencumbered property including his teacher’s retirement, the home in Chester and his personal car. This left him with a net distribution of property worth over $63,000.

Alberta was given the motel and contends its value is not greater than $163,000, the highest independent appraisal, and sets the debt on the property at $207,500. The District Court valued the property at $251,718 and set the debt on the property at $185,000. Thus, the wife contends she has been put in a deficit situation.

The District Court’s value of $251,718 on the Cedar Lodge is identical to the market value on the 1986 Assessment Notice from the Flathead County Assessor. This notice was entered as plaintiff’s Exhibit 3. At trial, a real estate agent, a local motel owner and a court-appointed appraiser testified as to the value of the motel. These values ranged from $120,000 to $163,000. After the court adopted the tax assessment value in its findings of February 1987, the wife’s counsel obtained an affidavit from the appraisal supervisor of Flathead County which stated:

“The opinion of market value on the real estate known as the Cedar Lodge Motel. . . was made as of January 1, 1982, . . . Property values in Columbia Falls have been adversely affected since the date of our appraisal. That effect would be best demonstrated by a more recent appraisal of the property. [Emphasis added.]”

Based on this affidavit, the District Court agreed to consider the wife’s motion to amend the findings and limited new evidence to that relating to the value of the Cedar Lodge Motel.

A second hearing was held in July 1987. The court’s “supplemental order” of December 1987 found the testimony of independent appraisers “not persuasive” and refused to change the value of the motel.

In Re Marriage of Krause (1982), 200 Mont. 368, 654 P.2d 963, set forth three principles surrounding property valuations:

“(1) Proper valuation is not tied to a specific event. (2) There may be more than one valuation point, depending on the kind of property involved, and (3) preferably valuation should occur at the time of distribution or stated another way present market values should, be used. [Emphasis added.]”

Krause, 654 P.2d at 968.

Section 40-4-202, MCA, gives the District Court authority to equitably apportion marital property in a dissolution proceeding. The District Court has discretion to give whatever weight it sees fit to the testimony of appraisal experts. Marriage of McCormack (Mont. 1986), [223 Mont. 410,] 726 P.2d 319, 321, 43 St.Rep. 1835, 1836. In Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 44 St.Rep. 1167, we found that the District Court has far-reaching discretion in resolving property divisions. The well-established standard of review in this state is that its judgment will not be altered unless a clear abuse of discretion is shown. Findings of fact will not be set aside unless they are clearly erroneous. Watson, 739 P.2d at 954.

In view of the current appraisal testimony on the Cedar Lodge Motel, we find it was an abuse of the District Court’s discretion to accept an outdated appraisal used in the tax assessment. The difference between the highest current appraisal and the tax assessment used by the court is nearly $89,000. This difference is clearly significant.

Appellant wife contends the District Court’s failure to recognize the current appraisals after granting wife’s motion to amend was error and catastrophic to the wife. We agree. The District Court admits in its order of April 1,4,1987, that the “tax appraisal. . . figure is now suspect as a true value of the property as of December 1986.” In spite of this, the District Court erroneously used the tax appraisal as the motel’s value in its final supplemental order of December 1987. On remand the District Court should base its valuation on current appraisals of the Cedar Lodge Motel and not solely upon a 1982 Department of Revenue valuation.

Issue 2. Right of Survivorship

By deed dated July 12, 1974, the Butlers acquired property in Chester, Montana. This property was owned in joint tenancy with right of survivorship. Section 40-4-202(1), MCA, gives authority, in a proceeding for dissolution of marriage to “. . . equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of husband or wife or both . .

The District Court, in its findings, conclusions and order dated February 23, 1987, Exhibit A thereof, grants the husband property described merely as “House in Chester.” We do not approve of the inadequate real property descriptions in Exhibit A of this order. Legal descriptions of real property are necessary to insure proper disbursement of the property in dispute. Although there is no complete description of the property in the District Court’s order of February 23, 1987, we are able to determine from the record on appeal that this reference, i.e., “House in Chester,” is to the following described real property situated in the City or Town of Chester, County of Liberty, and State of Montana, to-wit:

“The West 90 Feet of Lots 7, 8, 9, and 10, and the South 70 Feet of the West 90 Feet of Lot 6, Block 10, Hamilton’s Addition to the Townsite of Chester, according to the official plat thereof now on file and of record in the office of the Clerk and Recorder of Liberty County, Montana, said property being more particularly described as follows: Beginning at the Southwest corner of said Block 10, thence Northerly along the West Boundary line of said Block 10, a distance of 140 Feet to a point, thence Easterly at right angles and Parallel to the South boundary line of said Lot 10, a distance of 90 Feet, thence Southerly at right angles and Parallel to the East boundary lines of said Lots 6, 7, 8, 9 and 10, a distance of 140 Feet, thence Westerly along the Southerly boundary line of said Lot 10 a distance of 90 Feet to the point of beginning.”

We conclude from the February 23, 1987, order that the District Court awarded the Chester property to the husband and severed the joint tenancy.

Appellant contends that the District Court erred in refusing to recognize that the title to this property was held in joint tenancy with right of survivorship and should therefor have given the wife ownership of the Chester property after the husband’s death. Appellant contends that, because husband died before the final resolution of property division, the wife’s right of survivorship remains. Whether the order of February 23, 1987, effectively severed the joint tenancy is the issue relating to the property in Chester.

On March 12,1987, appellant Alberta moved the District Court for an order amending its February 23, 1987 findings of fact, conclusions of law and order. On April 27, 1987, the District Court entered an order setting the March 12, 1987 motion for hearing but limited the evidence the court would receive at the hearing to “evidence relating to the value of the Cedar Lodge Motel.” The matters that the District Court agreed to hear on the motion to amend had no relation to and did not affect the Chester property. The District Court’s February 23, 1987 order effectively distributed the Chester property to the husband.

Depending upon the determination on remand of the value of the parties’ interest in the Cedar Lodge Motel, it may be necessary for the District Court to reconsider the allocation of any or all of the marital estate to reach an equitable distribution.

Reversed and remanded.

MR. JUSTICES HARRISON, WEBER, SHEEHY, McDON-OUGH, HUNT and GULBRANDSON concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRADLEY E. BENDER, Defendant and Appellant.
    No. 88-79.
    Submitted on Briefs June 9, 1988.
    Decided June 21, 1988.
    756 P.2d 1157.
    Steven D. Nelson, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Jennifer Bordy, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighteenth Judicial District, Gallatin County, Montana. We vacate the District Court’s judgment and remand to the District Court for a new trial by jury.

The issue on appeal is: Does an appellant who has waived a trial by jury in Justice Court and thereafter appeals his conviction to the District Court have the right to a trial by jury in the District Court?

Appellant, Bradley E. Bender was charged in Justice Court, Gallatin County, with a misdemeanor. Appellant waived trial by jury and was tried by the Justice of the Peace in a bench trial. The Justice Court found the appellant guilty, and he appealed to the District Court. Counsel for appellant on November 6, 1987, informed the District Court that his client requested a jury trial. The District Judge, upon learning that there had not been a jury trial in Justice Court, ruled that appellant was not entitled to a trial by jury in the District Court. On January 8, 1988, immediately prior to trial in the District Court, counsel for appellant objected to trial without a jury. The District Court again ruled that appellant was not entitled to a jury trial. After a bench trial, the District Court found the appellant guilty of the offense charged.

As counsel for respondent, the Attorney General of the State of Montana notes that appellant made a timely request for a jury trial in the District Court and recommends that this case be remanded to the District Court with instructions to afford the appellant a trial by jury unless a written waiver is filed pursuant to Section 46-16-102, MCA, which provides:

“(1) Defendants in all criminal cases shall have a right to trial by jury not to exceed 12 in number. The parties may agree in writing at any time before the verdict, with the approval of the court, that the jury shall consist of any number less than 12.
“(2) Upon written consent of the parties, a trial by jury may be waived.”

The Constitution of the State of Montana, Article II, Section 24, provides:

“In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same. (Emphasis added.)”

Section 46-17-311(1), MCA, provides:

“(1) All cases on appeal from justices’ or city courts must be tried anew in the district court and may be tried before a jury of six selected in the same manner as a trial jury in a civil action, except that the total number of jurors drawn shall be at least six plus the total number of peremptory challenges.”

See, Adair v. Lake County Justice Court (Mont. 1984), [213 Mont. 466,] 692 P.2d 13, 41 St.Rep. 2241, and City of Hardin v. Myers (Mont. 1981), [_ Mont. __,] 633 P.2d 677, 38 St.Rep. 1512.

The judgment of the District Court finding defendant guilty is vacated and this cause is remanded to the District Court for a trial anew before a jury.

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


author:
MR. JUSTICE WEBER
      MR. JUSTICE GULBRANDSON,

text:
    LAURENE GLOVER, Plaintiff v. JAY T. BALLHAGEN, M.D., Defendant.
    No. 87-479.
    Submitted May 5, 1988.
    Decided June 22, 1988.
    756 P.2d 1166.

      J. Dwaine Roybal argued; Keefer, Roybal, Hanson, Stacey & Jarussi, Billings, for plaintiff.
    Larry E. Riley, argued; Garlington, Lohn & Robinson, Missoula, for defendant.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is a medical malpractice case pending in United States District Court, District of Montana, Missoula Division. That court certified several questions of law to this Court. We have restated the questions as follows:

1. In order to qualify as an expert witness on the standard of care required of a board certified family practitioner, must the witness be a board certified family practitioner?

2. If not, then who may qualify as an expert to testify on the standard of care required of a board certified family practitioner?

We answer question one in the negative. As to question two, qualification of an expert witness is a matter of discretion for the trial court; therefore, our opinion will be limited to an explanation of the guidelines necessary for the exercise of that discretion.

The only facts before this Court are those contained within the trial court’s certification order:

“A board certified family practitioner practicing in Ronan, Montana, is sued for malpractice. The depositions indicate that the plaintiff intends to use as experts, a board certified orthopod and a board certified practitioner of internal medicine and infectious diseases. Both are residents of the state of Oregon, and there is nothing to show that they have any knowledge of the standard of care in Ronan, Montana.”

I

In order to qualify as an expert witness on the standard of care required of a board certified family practitioner, must the witness be a board certified family practitioner?

The United States District Court specifically requested an explanation of our holding in Aasheim v. Humberger (Mont. 1985), [215 Mont. 127,] 695 P.2d 824, 42 St.Rep. 235. In that case, the plaintiff brought a medical malpractice action against a national board certified orthopedic surgeon', regarding that doctor’s treatment of her knee. The trial court refused to give plaintiff’s proposed instruction concerning the standard of medical care. The jury returned a verdict for the defendant doctor, and the plaintiff appealed. We held that the instruction given by the court was unduly restrictive in that it applied the “same or similar” locality rule to a board certified orthopedic surgeon. Aasheim, 695 P.2d at 826. We reversed the district court’s judgment, and, in doing so, approved the plaintiffs proposed instruction which read as follows (after modification by this Court):

“By undertaking professional services to a patient, a doctor represents that he has the necessary degree of skill and learning to do so. That degree of skill and learning is generally measured by the skill and learning possessed by other doctors in good standing practicing in the same specialty and who hold the same national board certification.
“It is the doctor’s further duty to use that skill and learning as ordinarily used in like cases by other doctors practicing in that same specialty and who hold the same national board certification.
“The violation of any of these duties is negligence.”

Aasheim, 695 P.2d at 826-27.

Dr. Ballhagen argues, in the present case, that the result of our holding in Aasheim is that the only witness who may testify concerning the standard of care of a doctor practicing with a board certification is another doctor with the same certification. He misconstrues our holding. We held that the standard of care to which a board certified specialist will be held must be that skill and learning possessed by other doctors in good standing practicing in the same specialty and who hold the same national board certification. We did not declare, as a matter of law, that doctors practicing in the same specialty were the only ones who could testify as to that standard of care. For example, in the past we have allowed a general practitioner to testify as to the standard of care required of a specialist. Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 588 P.2d 493. In Aasheim, our inquiry was limited to the applicability of the locality rule to national board certified specialists.

Our holding in Aasheim did not address the same or similar locality rule as it relates to board certified family practitioners. The facts certified to us do not describe the training and examination of board certified family practitioners. Our assumption is that all board certified family practitioners receive comparable training and pass the same national board certification examination. As stated in Aasheim, 695 P.2d at 827:

“The locality rule was an outgrowth of disparity in the quality of community medical practice. To the credit of the medical profession, including its excellent training and certification program, the disparity has largely been eliminated.”

We conclude that the holding in Aasheim should be extended to include board certified family practitioners. That is, we hold that the standard of care to which a board certified family practitioner will be held is that skill and learning possessed by other doctors in good standing practicing with the same national board certification.

We answer the first certified question in the negative. In order to qualify as an expert witness on the standard of medical care required of a board certified family practitioner, the witness may be, but does not have to be, a board certified family practitioner.

II

Who may qualify as an expert to testify on the standard of care required of a board certified family practitioner?

Rule 702, M.R.Evid., pertains to testimony by experts. That rule provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

The trial court has broad discretion in determining whether a particular witness is qualified to testify as an expert. Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 187, 44 St.Rep. 444, 450.

In answer to the second question certified to this Court, we hold that the party presenting a witness as an expert must establish, to the satisfaction of the trial court, that the witness possesses the requisite knowledge, skill, experience, training, or education to testify as to the diagnosis and treatment in question and as to the standard of care applicable to the physician charged with negligence. With our holding under Issue I in mind, this means that the witnesses in the present case must be qualified pursuant to Rule 702 to testify as to the standard of care required of a board certified family practitioner. That qualification is for the trial court to determine.

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

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

The first certified question, in my opinion, should be answered affirmatively. It is my view that a board certified family practitioner should not have the required standard of care determined by a medical specialist who is not also a board certified family practitioner.

I am aware of this Court’s reasonings that have done away with the “locality rule” that has evolved into the questions we are faced with in this case. Tall Bull v. Whitney (1977), 172 Mont. 326, 564 P.2d 162; Aasheim v. Humberger (Mont. 1985), [215 Mont. 127,] 695 P.2d 824, 42 St.Rep. 235. However, this is not a “locality rule” advocation. Respondent’s brief appropriately addresses the problem created by the majority opinion:

“The family practitioner is typically the physician found in the small towns and communities around the State of Montana. In the course of their working day, they treat and attend to expectant mothers and new mothers, young children, broken bones, sickness and infection, the aches and pains of the elderly, heart troubles, weight problems, back problems, do some surgery and attend to emergencies. In doing that, they are obviously practicing in the field of obstetrics, pediatrics, orthopedic surgery, internal medicine, rheumatology, cardiology, dietary medicine, dermatology, gastroenterology, gynecology, surgery, emergency medicine and often psychology.
“To allow Appellant’s experts in the case now before the Court to testify against Respondent would mean that the family practitioner is not going to be held to the standard of care of a family practitioner but is going to be held to the standard of care of a specialist in whatever specialty the doctor happens to be caring for a patient at that particular time . . .
“The message that this Court would send to the family practitioners in the State of Montana would be that as you are treating the expectant mother or new mother, you will be expected to have the same degree of training, skill and experience as a specialist in obstetrics and gynecology, as you are treating the young children of your patients, you will be held to the standard of care of a pediatrician, as you are treating various problems of bones and joints, you will be held to the standard of care of an orthopedic surgeon, etc.”

The majority, by leaving discretion with thirty-six individual district judges to determine the qualifications of proposed medical witnesses to testify in another specialty, has introduced an element of uncertainty that on legal and public policy grounds, could be avoided by answering “yes” to the first certified question. I would do so, and by doing so, would find support in the concept of selecting as Medical Legal Panel Members those “persons specializing in the same field or discipline as the Health Care Provider.” See, Section 27-6-402(2), MCA; Rule 9(c), Montana Legal Panel Rules of Evidence.


author: MR. JUSTICE HUNT

text:
    LESLIE G. WHEELER and Wilda I. Wheeler, husband and wife, Plaintiffs and Appellants, v. CITY OF BOZEMAN, a Municipal corporation, Defendant and Respondent.
    No. 87-345.
    Submitted on Briefs May 12, 1988.
    Decided June 28, 1988.
    757 P.2d 345.

      Lyman H. Bennett, III, Bozeman, for plaintiffs and appellants.
    Bruce Becker, City Atty., Bozeman, H. William Coder, Great Falls, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiffs Leslie G. Wheeler and Wilda I. Wheeler, husband and wife, appeal the order of the District Court of the Eighteenth Judicial District, Gallatin County, denying plaintiffs’ motion for a new trial. We affirm.

The issues raised on appeal are:

1. Whether the District Court erred by refusing to grant plaintiffs’ proposed instruction No. 15, instructing the jury that a municipality has a duty to keep its sewers in repair?

2. Whether the District Court erred by refusing to grant a new trial on the basis that no substantial evidence existed to support the verdict?

Leslie and Wilda Wheeler operate a physical fitness and health center out of their residence in Bozeman. Leslie Wheeler initiated this business as a result of his interest in physical fitness. The business had its beginning in the Wheelers’ garage, but by 1981 the Wheelers decided to expand their existing facilities.

The first expansion of the facilities occurred during the early part of 1982 and the second expansion was completed in early 1983, when the Wheelers built a 15 foot addition to their residence with an 8 foot basement. This newly built basement contained a hot tub which protruded 2 to 2Vz feet below the basement floor. In both instances, the City of Bozeman issued building permits to the Wheelers for the construction.

Beginning in 1983, the Wheelers began experiencing water flooding into their new basement. The Wheelers experienced nine floods between June 19, 1983 and May 31, 1986. In an attempt to solve the problems resulting from the floodings, the Wheelers installed a sump pump in their basement, two drain ditches, and a sump tank.

The Wheelers informed the City of Bozeman about the floodings and the City of Bozeman responded by cleaning out the silt and roots from the storm sewer drain located directly south of the newly built basement. Nonetheless, the floodings continued. The Wheelers brought this action in front of a jury in the Eighteenth Judicial District Court, Gallatin County, arguing that the City of Bozeman was negligent in designing, installing, and maintaining the storm sewer system located near the Wheelers’ residence. After a three day trial, the jury found the City of Bozeman not negligent in designing, installing and maintaining the storm sewer. The Wheelers’ appealed.

The first issue the Wheelers raise on appeal is whether the District Court erred by refusing to grant plaintiffs’ proposed instruction No. 15? This instruction states that:

“You are instructed that the duty of a municipality to keep its sewers in repair involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time, preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleaning, the omission to make such examination and keep the sewers clear is a neglected duty which renders the municipality liable.”

The District Court refused this instruction as well as defendant’s proposed instructions No. 21 and 24 which state as follows:

“Defendant’s Proposed Instruction No. 21
“The duty of Bozeman to inspect, repair and maintain its storm drain system is a duty of ordinary care, and it is not required to dig up its storm drain system to conduct such inspection and maintenance.”
“Defendant’s Proposed Instruction No. 24
“The City of Bozeman is not liable for stoppages of its storm drains which are caused by objects or materials thrown into the system by others.”

In refusing plaintiffs’ proposed instruction No. 15 and defendant’s proposed instructions No. 21 and 24, the District Court noted that the case was already being given to the jury on the basis of negligence, contributory negligence, and nuisance. The instructions given regarding negligence and contributory negligence were as follows:

“Instruction No. 10
“Every person is responsible for injury to the person or property of another caused by want of ordinary care or skill. When used in these instructions, negligence means want of such ordinary care or skill. Such want of ordinary care or skill exists when there is a failure to do that which a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person under the existing circumstances would not have done.
“Instruction No. 11
“Contributory negligence is negligence on the part of a claimant which contributed as a proximate cause to his injury.
“Instruction No. 12
“A proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces the injury, and without which it would not have occurred.
“Instruction No. 13
“Every person who suffers a detriment from the unlawful act or omission of a municipal corporation may recover from the municipal corporation a compensation therefore in money which is called damages. In this case, detriment is the loss or harm suffered. The measure of damages is the amount which will compensate for all the detriment proximately caused thereby herein defined, whether it could have been anticipated or not.”

Refusing an instruction which has been adequately covered by other instructions is not reversible error. Burns v. U & R Express (Mont. 1981), [_ Mont. __,] 624 P.2d 487, 489, 38 St.Rep. 302, 304-05; Holland v. Konda (1963), 142 Mont. 536, 545, 385 P.2d 272, 277. In the present case, the instructions as a whole adequately informed the jury on the issues of negligence, including the duty of the City of Bozeman, proximate cause and damages. Therefore, the District Court’s refusal to give plaintiffs’ proposed instruction No. 15 is not reversible error.

The second issue the Wheelers’ raise on appeal is whether the District Court erred by refusing to grant a new trial on the basis that no substantial evidence existed to support the verdict. The law is well settled in this area. When determining whether substantial evidence exists to support the verdict, this Court must review the evidence in a light most favorable to the prevailing party. Kukuchka v. Ziemet (Mont. 1985), [219 Mont. 155,] 710 P.2d 1361, 1363, 42 St.Rep. 1916, 1917; Anderson v. Jacqueth (1983), 205 Mont. 493, 495, 668 P.2d 1063, 1064; Gunnels v. Hoyt (Mont. 1981), [__ Mont. __,] 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495; Groundwater v. Wright (1979), 180 Mont. 27, 29, 588 P.2d 1003, 1004. The evidence may be inherently weak and still be considered substantial. Local Union No. 400 of Intern. Union v. Bosh (Mont. 1986), [220 Mont. 304,] 715 P.2d 36, 42, 43 St.Rep. 388, 394; Anderson, 205 Mont. at 495, 668 P.2d at 1064; Gunnels, 633 P.2d at 1191, 38 St.Rep. at 1495; In the Matter of the Estate of Holm (1979), 179 Mont. 375, 379, 588 P.2d 531, 534. Further, when conflicting evidence exist, the credibility and weight given to the conflicting evidence is within the jury’s province. Mountain West Farm Mutual Insurance Co. v. Girton (Mont. 1985), [215 Mont. 408,] 697 P.2d 1362, 1363, 42 St.Rep. 500, 501; Kukuchka, 710 P.2d at 1363, 42 St.Rep. at 1917; Gee v. Egbert (Mont. 1984), [209 Mont. 1,] 679 P.2d 1194, 1203, 41 St.Rep. 515, 525.

The Wheelers contend that substantial evidence does not exist to support the jury’s verdict, arguing that their expert witness testified ‘conclusively’ that the water entering the Wheelers’ basement came from the City of Bozeman’s storm sewer system and that the City of Bozeman could not produce any evidence indicating ‘conclusively’ the source of the water. We disagree.

The jury had an opportunity to hear testimony concerning the source of the water from two expert witnesses. The Wheelers’ expert witness testified that the source of the water resulted from the City of Bozeman’s negligence. On the other hand, the City of Bozeman offered contrary evidence through another expert witness stating that the water in the Wheelers’ basement may have resulted from the naturally high ground water in the area in combination with the Wheelers’ basement and hot tub protruding more than 10 feet below the surface. The jury, after hearing the conflicting evidence, determined that the water in the Wheelers’ basement was not a result of the City of Bozeman’s negligence. The credibility and weight given to the testimony of each of these expert witnesses is within the province of the jury, not this Court. We will not second guess the jury when, as in this case, substantial evidence exist to support the jury’s verdict.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDONOUGH and SHEEHY concur.


author: MR. JUSTICE McDONOUGH

text:
    ALMA S. JANZ, Plaintiff and Appellant, v. DUANE QUENZER, d/b/a Ben Franklin Store, Defendant and Respondent.
    No. 87-565.
    Submitted on Briefs April 28, 1988.
    Decided June 28, 1988.
    756 P.2d 1174.
    Ira Eakin, Billings, Charles Peterson, Beach, N.D., for plaintiff and appellant.
    Moulton, Bellingham, Longo & Mather, Fred W. Robinson, Billings, Terry J. Hanson, Miles City, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Sixteenth Judicial District concerns appellant Janz’s claim for wrongful discharge in breach of public policy, an express contract for employment, and the implied covenant of good faith and fair dealing. Janz alleged that the claim arose from the actions of respondent Quenzer as her employer. Quenzer moved for summary judgment contending that no employment relationship existed between the parties. The District Court agreed and granted Quenzer’s motion. Janz appeals this decision. We affirm.

Janz presents two issues for review:

(1) Did the Court err when it decided that Alma Janz was not employed by Duane Quenzer, and when it granted Quenzer’s motion for summary judgment on that basis?

(2) Did the District Court err when it concluded that Alma Janz was not entitled to punitive damages as a matter of law?

The undisputed facts are briefly as follows: Kenneth Heier owned the Ben Franklin Store in Baker, Montana. Janz and her daughter, Roxanne, worked for Heier. Heier offered to sell the store to Quenzer. The parties agreed to a purchase price which included the store and the store’s inventory up to $160,000.00. They also agreed that Quenzer could negotiate to purchase any store inventory in excess of $160,000.00. Quenzer and Heier planned to ascertain the value of the store’s inventory prior to closing the deal.

Janz heard about the sale and contacted Quenzer to inquire whether or not he would continue her employment. Quenzer told Janz he planned to keep her on.

From November 1, 1983, to at least the morning of November 3, 1983, Heier employed Janz to help with the inventory. On November 4, 1983, the inventory was either completed or nearing completion. In the morning hours of November 4, 1983, Janz and her daughter, Roxanne, arrived at the store to begin work for the day. Shortly after their arrival Quenzer told Roxanne she could not wear jeans to work. Roxanne told Quenzer that she had no other type of pants to wear, and then complained to her mother. The parties argued, and appellant Janz and her daughter left the store. As Janz left the store Quenzer asked for keys to the store kept by Janz. Janz refused to give the keys to Quenzer telling him that they belonged to Heier.

Later that morning Heier spoke to Janz about the incident. He told Janz he felt bad about the incident, and payed Janz for her wages for the period of time through November 3, 1983.

I.

Under Rule 56(c), M.R.Civ.P., summary judgment is properly granted where the moving party meets the initial burden of showing the absence of a genuine issue as to any fact deemed material in light of the substantive principles that entitled the movant to judgment as a matter of law. Fleming v. Fleming Farms, Inc. (Mont. 1986), [221 Mont. 237,] 717 P.2d 1103, 1105-06, 43 St.Rep. 776, 779. And the party opposing the motion fails to come forward with evidence supporting the existence of a material question of fact. Fleming, 717 P.2d at 1106. All reasonable inferences that may be drawn from the offered proof must be drawn in favor of the party opposing summary judgment. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

The resolution of this issue depends on the existence of a material question of fact on whether Quenzer employed or contracted to employ Janz. Malloy v. Judge’s Foster Home Program, Inc. (Mont. 1987), [229 Mont. 317,] 44 St.Rep. 1996, 1999, 746 P.2d 1073, 1075. We hold that the District Court correctly granted summary judgment on the claims at issue because no reasonable inference may be drawn that either the contract or the relationship existed.

Janz does not dispute that on the morning of November 3, 1983, she worked for Heier. However, according to Janz, a material fact question exists as to whether Quenzer took over operation of the store during the afternoon of November 3, 1983. According to Janz, deposition statements demonstrate a factual issue over the existence of Quenzer’s control of the store and its employees. Janz contends that a reasonable inference may be drawn that Quenzer’s control of the store created the employment relationship she has based her claims upon.

Quenzer answers that he hired no employees until after Janz “walked out” of the store. To support this contention, Quenzer points out that he did not own the store until after he allegedly fired Janz.

First, we agree with Janz that a showing that Quenzer controlled the store and its employees may be enough in the appropriate case to prevail against a motion for summary judgment on this issue. However, Janz’s control assertion fails to raise a material question of fact as to the existence of an employment relationship arising from control under the undisputed facts of this case.

Janz’s specific contentions on Quenzer’s control of the store and its employees appear in her brief as follows:

“Quenzer was in full control of the operation of the business on the afternoon of November 3, 1983, following the inventory. At that time, the Plaintiff and other employees were taking their directions and orders from Quenzer as the new owner. Quenzer advised Alma Janz and the other employees on November 3 when to appear for work on the morning of November 4. Quenzer received all of the receipts from the business on the afternoon of November 3 and November 4. Quenzer hired employees who began work on the morning of November 4 following the discharge of Mrs. Janz. The employees were hired to replace Mrs. Janz, her daughter and Mary Ann Aguayo and were paid wages by Quenzer for their work on November 4. Quenzer allowed Janz to carry on her duties on the morning of November 4 prior to terminating her daughter’s employment with him. Furthermore, the franchise agreement executed by Quenzer specifically provided that he was the owner of the store as of November 1, 1983.”

We will consider these contentions individually to determine whether a material fact question exists as to the establishment of an employment relationship between the parties. First, the fact that Quenzer employed other workers on November 4, 1983, after Janz left the store fails to raise any inference as to Janz’s alleged term of employment. The events at issue occurred prior to Quenzer’s employment of other individuals.

Second, Janz cites to a deposition statement made by Quenzer contending that the statement infers employment by control. According to Janz, Quenzer stated, as recorded on page 20 of his deposition, that the inventory was completed on November 3, 1983, and that the store reopened for business on the afternoon of November 3, 1983. This assertion exaggerates the content of Quenzer’s statement.

Quenzer stated on page 20 of the deposition that the inventory took two and a half days. One could deduce from this statement that since the inventory began on November 1, 1983, it was over by the afternoon of November 3, 1983. However, on pages 24 and 25 of the deposition Quenzer clarified his earlier statement on when the inventory was completed:

“Q. Did you handle the business of the store on November 4th?
“A. To what degree?
“Q. Whatever was required of you at that point.
“A. No. Howard Philmore was the inventory man. He was the one in charge.
“Q. However, the inventory was completed November 3rd, correct?
“A. The count. Not the adding.
“Q. Okay. Pm not talking about the inventory directly. I’m talking about the business of the store, the operation of the store itself.
“A. Reword that.
“Q. Who handled the operation of the store, not having to do with the inventory, but the actual operation of the store on November 4th?
“A. Howard Philmore.”

Thus, Quenzer stated only that a part of the inventory was completed on November 3, 1983, and no reasonable inference may be drawn that Quenzer controlled the store’s employees simply because on page 20 of his deposition he stated that the inventory took two and a half days. The statements of Quenzer, as revealed by his assertion that Philmore was in charge of the store, are in direct opposition to Janz’s bald assertions on the control issue.

Next, Janz contends that Quenzer controlled the store on the afternoon of November 3, 1983, because he told Janz and co-employee Mary Ann Aguayo what time to come to work on November 4, 1983. The fact that Aguayo and Janz asked Quenzer when they should report to work on November 4, 1983, fails to reasonably infer that Quenzer’s control of the store and its employees established an employment relationship between Janz and Quenzer on the afternoon of November 3, 1983, and the morning of November 4, 1983. The fact only infers that Quenzer and Aguayo planned to enter an employment relationship on November 4, 1983. Thus, no reasonable inference may be drawn that an employment relationship existed from these statements.

Other than the statement that Quenzer responded to her question on what time to appear for work, Janz failed to specify incidents occurring on November 3, 1983, which demonstrate Quenzer’s control of the store. Conclusory or speculative statements are insufficient to raise a genuine issue of material fact. Barich v. Ottenstror (1976), 170 Mont. 38, 42, 550 P.2d 395, 397. The statements of Janz fail to reveal anything but preparation to begin an employment relationship, and again no reasonable inference may be drawn that Janz’s employment was initiated by Quenzer’s control of the store on the afternoon of November 3, 1983, or the morning of November 4, 1983.

Janz also contends that Quenzer allowed her to begin work on the morning of November 4, 1983, because she spent eight or ten minutes dusting shelves prior to arguing with Quenzer and leaving the store. The statement on the shelves is recorded at page 60 of her deposition. Janz also stated that she began the work on the shelves without any direction from Quenzer. We hold that the eight or ten minutes Janz spent dusting is insufficient to allow a reasonable inference that Quenzer controlled the store and its employees.

The two remaining assertions on control by Janz may be disposed of quickly. First, Janz contends that the commencement of a franchise agreement between Quenzer and Household Merchandising Inc., (Ben Franklin), on November 1, 1983, raises a material fact question as to when Quenzer took over the store. We disagree. The franchise agreement infers that Quenzer intended an earlier sale date, but this inference does not create a material question of fact as to the date Quenzer actually did take over the store. The facts are undisputed that Quenzer did not take over the store on November 1, 1983, as provided by the agreement.

Second, Janz argues that Quenzer’s receipt of proceeds for store sales made during the afternoon of November 3, and on November 4, 1983, creates a material question of fact on whether Quenzer controlled the store on November 3, 1983. The record establishes that Quenzer was entitled to the proceeds only after closing occurred on the afternoon of November 4, 1983. If the sale had not closed, the proceeds would have belonged to Heier. Thus, no reasonable inference may be drawn that the receipt of the proceeds on a given day marks the beginning of an employment relationship between the parties.

While Janz’s references to the record fail to reveal material fact questions on the existence of an employment relationship between the parties, Quenzer has presented solid citations to deposition statements demonstrating the nonexistence of the alleged relationship: (1) Quenzer did not own the store at the time of the alleged termination; (2) Heier paid Janz’s wages for November 3, 1983; (3) a Ben Franklin representative was in charge of the inventory which proceeded the sale; (4) Janz refused to give the keys to the store to Quenzer when she left on November 4, 1983, and told Quenzer they belonged to Heier. Quenzer’s proof discloses that no genuine issue of material fact existed as to the absence of the employment relationship. Once the record discloses:

“no genuine issue of material fact, the burden of proof shifts to the party opposing the motion for summary judgment to show by present facts of a substantial nature that a material fact issue does exist.”

Mayer Bros. v. Daniel Richard Jewelers, Inc. (Mont. 1986), [223 Mont. 397,] 726 P.2d 815, 816, 43 St.Rep. 1821, 1823. Janz’s proof fails to meet this burden.

The last claim dealt with here is the alleged breach of an express employment contract. We hold that no contract existed between the parties because the absence of the terms of the employment makes the alleged contract fatally uncertain. Bishop v. Hendrickson (Mont. 1985), [215 Mont. 158,] 695 P.2d 1313, 42 St.Rep. 259. The record reveals that the parties’ conflict actually arose in defining the terms of employment for Janz’s daughter, i.e., that she not wear jeans. The parties’ negotiations did not proceed further than the issue of proper attire for store employees. Thus, no contract existed and we affirm on this issue.

II

Janz concedes in her reply brief that resolution of the first issue in favor of Quenzer moots the second issue. Thus, resolution of issue 1 disposes of this appeal. Affirmed.

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