author: JUSTICE GRAY

text:
    STATE OF MONTANA, CITY OF HAMILTON, Plaintiff and Respondent, v. VICTOR I. PIZZOLA, Jr., Defendant and Appellant.
    No. 96-714.
    Submitted on Briefs May 22, 1997.
    Decided July 23, 1997.
    54 St.Rep. 774.
    283 Mont. 522.
    942 P.2d 709.
    For Appellant: Victor I. Pizzola, Jr., Hamilton, Pro Se.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Christina Lechner Goe, Assistant Attorney General; T. Geoffrey Mahar, City Attorney, Hamilton.
   JUSTICE GRAY

delivered the Opinion of the Court.

Victor I. Pizzola, Jr. (Pizzola), appearing pro se, appeals from the order of the Twenty-First Judicial District Court, Ravalli County, dismissing his appeal from the City Court of Hamilton (City Court) with prejudice. We reverse and remand.

The sole issue on appeal is whether the District Court erred in dismissing Pizzola’s appeal from the City Court for a trial de novo with prejudice.

The City of Hamilton (City) charged Pizzola in the City Court with committing the offense of disorderly conduct in violation of § 45-8-101, MCA. The facts upon which the charge was based were that Pizzola knowingly or purposely drove through a barricaded street and “flipped off’ the construction workers at that location. He moved to dismiss on the grounds that the charge violated his First Amendment right to free speech and the City moved to amend the complaint. The City Court denied Pizzola’s motion to dismiss and permitted the City to amend the complaint to add a charge of reckless driving in violation of § 61-8-301, MCA, or, in the alternative, careless driving in violation of § 61-8-302, MCA.

A jury subsequently found Pizzola guilty of disorderly conduct and careless driving and not guilty of reckless driving. The City Court also held Pizzola in contempt on three different bases and sentenced him on September 12, 1996, to 23 days in jail, with all but 1 day suspended, a fine and costs.

On September 23, 1996, Pizzola filed a pro se notice of appeal for a trial de novo in the District Court. The District Court scheduled an omnibus hearing for November 6, 1996.

On October 18, 1996, the City moved to dismiss Pizzola’s appeal with prejudice on the basis that it was not timely filed under § 46-17-311, MCA, which requires that a notice of appeal be filed within 10 days after a judgment is rendered; no cases from this Court were cited in support of the motion. Because Pizzola’s notice was filed 11 days after judgment and sentence were rendered by the City Court, the City contended that the District Court did not have jurisdiction to entertain the appeal.

Pizzola did not appear in person or by counsel at the scheduled omnibus hearing. The City argued that his failure to appear constituted an additional basis for dismissing the appeal. The District Court gave Pizzola additional time to respond to the motion to dismiss.

Pizzola did not respond to the City’s motion and, on November 15, 1996, the District Court entered an order, dismissing his appeal with prejudice “upon motion by the City of Hamilton and good cause being shown.” Pizzola appeals.

Did the District Court err in dismissing Pizzola’s appeal from the City Court with prejudice?

Section 46-17-311, MCA, requires that a notice of appeal to a district court for a trial de novo be filed within 10 days. We have held, however, that the 10-day period for filing such a notice of appeal excludes intermediate weekend days and legal holidays. State v. Price (1995), 271 Mont. 409, 411, 897 P.2d 1084, 1085; State v. Schindler (1994), 268 Mont. 489, 492, 886 P.2d 978, 980. Thus, pursuant to Price and Schindler, both of which had been decided at the time of the City’s motion, Pizzola’s notice of appeal filed on September 23, 1996, was timely and the District Court had jurisdiction to entertain it.

On appeal to this Court, the City concedes the timeliness of Pizzola’s notice of appeal in the District Court, thus also conceding that no legal basis existed for its motion to dismiss Pizzola’s appeal to the District Court with prejudice. The City argues, however, that Pizzola’s failure to respond to its motion to dismiss constituted an admission, under Rule 2(b), Unif.Dist.Ct.R., that the motion was well taken. Consequently, according to the City, the District Court did not abuse its discretion in granting the City’s motion to dismiss Pizzola’s appeal. We disagree.

As noted above, the District Court dismissed Pizzola’s appeal on the basis of the City’s motion and “good cause being shown.” We take the court’s statement, together with its failure to mention Rule 2(b), to mean that the court ruled on the City’s motion on the merits. As previously discussed, that ruling was incorrect as a matter of law under Price and Schindler.

Addressing the City’s Rule 2(b), Unif.Dist.Ct.R., argument, that Rule provides that failure to file a brief may subject a pending motion to summary ruling. It goes on to provide that a failure by an adverse party to file an answer brief to a briefed motion within 10 days “shall be deemed an admission that the motion is well taken.” Rule 2(b), Unif.Dist.Ct.R. ‘We have interpreted this Rule as allowing the trial court discretion to either grant or deny an unanswered motion.” State v. Loh (1996), 275 Mont. 460, 466, 914 P.2d 592, 596 (citing Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289).

In Maberry, the adverse party did not timely respond to a motion and the moving party argued that Rule 2(b) required that the motion be deemed well taken and granted. The district court denied the motion. Maberry, 777 P.2d at 1288. The moving party appealed, arguing — in essence — that the rule required the court to grant the motion. We reasoned that, while the absence of a response brief to a motion “may’ subject the motion to summary ruling under Rule 2(b), the rule does not require a district court to grant an unanswered motion. We reached the same result in State v. Fertterer (1993), 260 Mont. 397, 399, 860 P.2d 151, 153, holding that the district court did not abuse its discretion in denying the defendants’ unanswered motion to amend their sentences and motion for summary ruling on the motion to amend.

Loh, Maberry and Fertterer all addressed situations where district courts denied unanswered motions. Our holdings in those cases clarified that district courts have discretion, under Rule 2(b), Unif.Dist.Ct.R., in deciding whether to make a summary ruling on an unanswered motion. None of those cases, however, addressed the specific situation before us in the present case. Here, the issue is whether a district court can properly grant a legally unsupported and insupportable motion to which a timely response brief has not been filed by a party. We hold that it cannot do so.

This case involves the interplay between a rule and cases which vest certain discretion in trial courts, the obligation of parties to properly support their motions with legal authority, and the obligation of courts to make rulings which are correct as a matter of law. Clearly, Rule 2(b), Unif.Dist.Ct.R., is intended — and properly so — to allow district courts to deal efficiently with ever-increasing case loads and pending motions which the parties are obligated to brief in order for the courts to make expeditious rulings. Just as clearly, however, the Rule is not intended to allow a party to obtain a favorable legal ruling on a motion which not only cites no supporting authority from this Court, but fails to cite existing authority from this Court which clearly renders the motion incorrect as a matter of law. Moreover, a “deemed admission” that a motion is well taken under Rule 2(b), Unif.Dist.Ct.R., cannot convert a motion which is incorrect as a matter of law into a motion which is well taken as a matter of law.

Finally, in this regard, while Rule 2(b) states that failure to file a brief “may subject a motion to a summary ruling, nothing in the Rule or in our cases interpreting the Rule suggests that the summary ruling is to be based on something other than a proper application of the law to the motion at hand. Indeed, since “discretion” connotes that part of the judicial function which decides questions according to the particular circumstances of the case, uncontrolled by fixed rules of law (State ex rel. Leach v. Visser (1988), 234 Mont. 438, 447, 767 P.2d 858, 863), it is clear that a district court cannot properly exercise discretion to make an incorrect ruling on a question controlled by law.

We conclude that, pursuant to Price and Schindler, the District Court erred as a matter of law in granting the City’s motion to dismiss Pizzola’s appeal with prejudice.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES NELSON, REGNIER, HUNT and LEAPHART concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    LEANNE M. NESET, Plaintiff and Appellant, v. MICHAEL FIFER, Defendant, Third Party Plaintiff and Respondent, v. LEANNE M. NESET, and all other persons, unknown, claiming or who might claim any right, title, estate, or interest in a lien or encumbrance upon the real property described in the complaint adverse to Third-Party Plaintiff’s ownership, or any cloud upon Third-Party Plaintiff’s title thereto, whether such claim or possible claim be present or contingent, Third Party Defendants.
    No. 97-051.
    Submitted on Briefs May 30, 1997.
    Decided July 23, 1997.
    54 St.Rep. 777.
    283 Mont. 527.
    942 P.2d 712.

      For Appellant: Phillip N. Carter, Sidney.
    For Respondent: Donald L. Netzer, Netzer Law Office, Sidney.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In this action, the Seventh Judicial District Court, Richland County, entered summary judgment that Michael Fifer is the owner of certain real property under a theory of resulting trust. Leanne M. Neset appeals. We vacate the summary judgment and remand for further proceedings consistent with this Opinion.

We restate the issue as whether the District Court erred when it entered summary judgment that a purchase money resulting trust existed in favor of Fifer pursuant to § 72-33-218, MCA.

In the spring of 1989, Fifer wrote a $33,500 check as a down payment on a home and real property in Sidney, Montana. Fifer and his then-girlfriend, Neset, borrowed $20,000 as joint obligors for the remainder of the property’s purchase price. Title to the property was placed in Neset’s name.

Neset and Fifer lived together in the home off and on (Neset moved out twice) for several years. When Neset and Fifer ended their romantic relationship in 1992, Fifer remained in the home and Neset moved out.

Neset brought this action in 1994, seeking an injunction evicting Fifer from the home to which she held title. Fifer counterclaimed that the property was his based on adverse possession, unjust enrichment, constructive trust, laches, equitable estoppel, and resulting trust. The District Court granted Fifer summary judgment under a theory of resulting trust, and declared him the owner of the property in fee simple. Neset appeals.

Standard of Review

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R This Court reviews a grant of summary judgment under the same Rule 56(c), M.R.Civ.R, criteria used by the district court. Carelli v. Hall (1996), 279 Mont. 202, 926 P.2d 756, 759 (citation omitted).

Discussion

Did the District Court err when it entered summary judgment that a purchase money resulting trust existed in favor of Fifer pursuant to § 72-33-218, MCA?

Section 72-33-218, MCA, provides, in relevant part:

(1) Where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person who paid the purchase price.
(2) Subsection (1) does not apply in any of the following circumstances:
(a) whenever the party paying the purchase price manifests an intention that no resulting trust should arise;
... or
(c) whenever the transfer is made in order to accomplish an illegal purpose and the policy against unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.

In the present case, the District Court found that all funds to purchase the property came from Fifer and that none came from Neset. It found that although the home loan payments were paid from Neset’s checking account for the first six months, Fifer had deposited funds into that account to cover the loan payments. The court concluded that a resulting trust arose in favor of Fifer as a result of his payment of the purchase price of the property.

In discussing whether Fifer manifested an intention that no resulting trust should exist as described under subsection (2)(a) above, the court concluded that no gift occurred because Fifer never clearly divested dominion and control of the property to Neset, and Neset did not accept the property and treat it as her own. The court further concluded that Fifer was not precluded from a resulting trust by a weighing of the equities under subsection (2)(c) above, because Neset was not an unknowing recipient of the property.

Neset argues that the District Court failed to correctly determine which facts are material to the dispute, made improper factual findings, and did not apply the proper standard of proof. She argues that the down payment on the home was a gift to her from Fifer and that Fifer therefore did not effectively pay the purchase price for the property, so that § 72-33-218, MCA, does not apply. She argues that the District Court erred by concluding as a matter of law that Fifer did not manifest an intent that no resulting trust should arise as described in the exception under § 72-33-218(2)(a), MCA.

Neset filed an affidavit with the District Court in which she stated that the $33,500 down payment on the property was a gift to her from Fifer. She also stated in the affidavit that, “He told me several times that the house was mine and that he was paying the down payment so that we could live together and love each other.” In his deposition filed with the District Court, Fifer stated, to the contrary, that title to the house was put in Neset’s name only to avoid the house being attached for back child support he owed and that he did not give the house to Neset. Fifer also filed affidavits by several of his friends and relatives who stated their understandings that he did not intend either the money or the house as gifts to Neset, but that Fifer was merely placing the property in Neset’s name so that it could not be levied upon for back child support he owed for children from a previous marriage.

Fifer contends, and the District Court apparently agreed, that any statements he made to Neset about intending the money or the house as a gift to Neset are inconsequential in light of the parties’ subsequent behavior. Fifer points out that a completed gift must include intent, delivery, and acceptance. See Lance v. Lance (1981), 195 Mont. 176, 183, 635 P.2d 571, 575. He argues that even if an issue of fact exists as to his intent to make a gift, he never completely divested himself of dominion and control over the property. He asserts that as a matter of law there was no delivery of the gift and, thus, the gift was never completed.

We disagree with Fifer and the District Court concerning the existence of issues of material fact. Physical delivery of the down payment was accomplished when the payment was made and title to the property was placed in Neset’s name. Fifer’s alleged statements to Neset are relevant as to whether he manifested an intent that no resulting trust exist. The conflicting affidavit and deposition statements submitted to the court create, at minimum, a question of fact as to whether the down payment was a gift from Fifer to Neset.

Further, Fifer’s retention of physical possession of the property after Neset left it is not dispositive as to delivery of a gift of the property. Delivery occurred when title to the property was placed in Neset’s name. Inasmuch as Fifer’s retention of the property is offered as evidence of intent, Neset testified in her deposition that she moved out of the home when she and Fifer split up not because she believed the home belonged to him, but because she knew he would not leave.

The District Court noted that Fifer paid all the property taxes on the home except for one payment Neset made immediately before she filed this suit. Fifer claimed an income tax deduction for interest paid on the mortgage on the property and he maintains that he made all the house payments. Although some of those payments came out of Neset’s checking account, Fifer stated that he deposited money to that account to fund those payments.

However, Fifer’s payment of property taxes and claim of the income tax deduction for such payments is not conclusive as to whether a purchase money resulting trust exists or as to whether he gifted the property to Neset. Neset, too, took an income tax deduction for the property taxes which she paid. Nor is it conclusive of ownership that Fifer made mortgage payments while he resided in the home after Neset left. Such payment would also be consistent with a rental arrangement.

Neset cites Johnson v. Kenneth D. Collins Agency (1993), 263 Mont. 137, 865 P.2d 312, as authority that no resulting trust was created here. In that case, Johnson constructed an apartment complex, the cost of which was paid with an FmHA loan to Collins Agency. When Collins Agency paid Johnson for his construction work, Johnson gave Collins Agency a down payment on the apartment complex and agreed to assume the loan. However, Johnson never obtained FmHA approval to assume the loan, and he made no payments on it. This Court held that, as a matter of law, a purchase money resulting trust was not created. Johnson, 865 P.2d at 314.

Johnson.is distinguishable from the present case in several important respects. First, in Johnson, the Court noted that the parties did not disagree as to any issues of material fact. Johnson made no payments on and was not liable as a borrower on the loan against the property. In the present case, Fifer and Neset are both exposed to financial and legal liability as co-borrowers on the $20,000 mortgage on the property. Finally, Johnson’s down payment on the property was to Collins Agency itself, rather than to a third party.

In Poepping v. Monson (1960), 138 Mont. 38-48, 353 P.2d 325, 330-31, this Court applied the rule that a person claiming a resulting trust who has paid only a portion of the purchase price is entitled to claim a resulting trust only proportionate to the amount of the total purchase price paid, absent clear and convincing evidence of a contrary intent. See also Restatement (Second) of Trusts § 454, pp. 416-17 (1997).

We conclude that issues of material fact exist in this case concerning to what extent, if any, the property or the down payment thereon was a gift from Fifer to Neset. These issues of fact implicate whether and to what extent a purchase money resulting trust, or the exception thereto, has arisen under § 72-33-218(1) and (2)(a), MCA, and Poepping.

Neset further argues that the District Court misapplied the balancing test under § 72-33-218(2)(c), MCA, when it concluded that, in this case, the policy against unjust enrichment outweighed the policy against giving relief to a person who has intentionally transacted business so as to deprive his children of the support to which they are entitled. Neset contends that the District Court did not properly apply the balancing test because the court determined that subsection (2)(c) was essentially a codification of the clean hands doctrine and then determined that Neset was not entitled to assert the doctrine because she was aware that Fifer owed back child support.

The proper factors to be weighed in the balance under subsection (2)(c) is a question of law, and we review questions of law to determine whether the district court’s interpretation of the law is correct. Matter of Estate of Dern Family Trust (1996), 279 Mont. 138, 928 P.2d 123, 127. Neset correctly states that the balance in this case should be between the policy against unjust enrichment of her and the policy disfavoring relief to Fifer as a result of his attempt to evade his child support obligation. The Uniform Fraudulent Transfer Act, §§ 31-2-326 through -342, MCA, makes it illegal to transfer property with the intent to hinder, delay, or defraud any creditor. The affidavits filed by both parties and the copies of court documents filed concerning Fifer’s child support obligation indicate that Fifer’s transfer of the down payment and title to the property to Neset were for the illegal purpose of evading his child support obligation, in violation of previous court orders and the Uniform Fraudulent Transfer Act. If, after resolving the material issues of fact described above, the finder of fact determines that a purchase money resulting trust was created in this case, it should then weigh the proper factors in determining whether the exception under § 72-33-218(2)(c), MCA, applies.

The summary judgment is vacated and this case is remanded for further proceedings consistent with this Opinion.

JUSTICES GRAY, REGNIER, LEAPHART and TRIEWEILER concur.


author: JUSTICE LEAPHART

text:
    BALYEAT LAW, P.C., as Trustee, Plaintiff and Appellant, v. LINDA JO HATCH, Defendant and Respondent.
    No. 97-151.
    Submitted on Briefs June 19, 1997.
    Decided July 23, 1997.
    54 St.Rep. 780. 942 P.2d 716.
    284 Mont. 1.

      For Appellant: Regan Whitworth; Balyeat Law Offices, Missoula.
    For Respondent: John M. Morrison; Meloy & Morrison, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant Balyeat Law (Balyeat) appeals from the order of the Ninth Judicial District Court, Teton County, granting respondent Linda Jo Hatch (Hatch) summary judgment on the basis of res judicata. We affirm.

We address the following issue on appeal:

Did the District Court err in granting summary judgment on the basis of res judicata and dismissing Balyeat’s complaint for collection of a debt when Balyeat had previously brought an action against Hatch for collection of a debt arising from the same incident? Factual and Procedural History

Linda Jo Hatch and her son Carson Hatch were injured in a car accident and were subsequently treated at Community Medical Center of Missoula (CMC) periodically between November 10, 1992 and February 4, 1994. On June 13, 1994, Balyeat filed a complaint as trustee for CMC in Missoula Justice Court against Hatch for a debt for services rendered by CMC to Hatch and her son in the amount of $2,400. Default judgment was entered and Hatch paid the debt in full.

On July 28, 1995, Balyeat filed a second complaint against Hatch in Teton County. Balyeat asked for judgment in the amount of $3,612 for goods and services provided to the Hatches by CMC during the same period of time in which CMC provided the services which were the subject of the first debt collection action. The Justice Court granted Hatch summary judgment and dismissed the complaint on the basis of res judicata. The parties stipulated to a de novo review by the Ninth Judicial District Court which likewise dismissed the complaint on the basis of res judicata. Balyeat appeals from that judgment.

Discussion

The standard of review of a summary judgment ruling is de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same standard as applied by the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted). In the instant case, the parties do not dispute any issues of material fact. Balyeat disputes only the District Court’s legal determination that the final judgment in the Missoula County Justice Court matter is res judicata as to the second debt action.

The doctrine of res judicata bars issues and claims litigated in a former action as well as issues and claims which might have been litigated in the former action. Mills v. Lincoln County (1993), 262 Mont. 283, 864 P.2d 1265. This Court has established that the doctrine of res judicata bars a party from relitigating a matter that the party has already had the opportunity to litigate. “ ‘Once there has been a full opportunity to present an issue for judicial decision in a given proceeding ... the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could have been raised Mills, 864 P.2d at 1267 (citing First Bank v. District Court (1987), 226 Mont. 515, 519-20, 737 P.2d 1132, 1134-35).

A resolved claim will be res judicata as to subsequent claims if: (1) the parties are the same; (2) the subject matter is the same; (3) the issues are the same and relate to the same subject matter; and (4) the capacities of the persons are the same in reference to the subject matter and issues, Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161.

Balyeat argues that res judicata cannot bar its present debt collection action because the subject matter is different from the initial debt collection action in the Missoula County Justice Court. It claims that because the first debt covered medical services and the second.debt covers mostly expert testimony costs and the debts had different account numbers, that the subject matter in the two actions is different.

Balyeat relies on Berlin v. Boedecker (1994), 268 Mont. 444, 887 P.2d 1180, as authority for the proposition that separate contracts do not present the same subject matter. By analogy, Balyeat argues that debts with different account numbers do not present the same subject matter. In Berlin, one lawsuit was brought by the Berlins against Boedecker and his company for breach of contract, fraud and breach of fiduciary duties in connection with a contract for acquisition of certain oil and gas leases. Berlin, 887 P.2d at 1184. Berlins brought a second lawsuit against Boedecker and his company for breach of fiduciary duty for failing to reveal conflicts of interest in a different investment transaction. This Court held that the subject matter of the two contracts was not the same for the following reasons:

The contracts in the two actions were separate and the contracts’ values differed. The locations of the oil and gas interests in the contracts also differed. Finally, the tortious conduct alleged by appellants in the present action differed from that in the [first action], involving a different fraudulent scheme.

Berlin, 887 P.2d at 1185.

We agree with Hatch that Berlin is distinguishable. In contrast to Berlin, the first and second actions brought by Balyeat both involve whether and to what extent Hatch is liable to Balyeat for services provided by CMC. The services in question were provided in connection with one car accident. The services giving rise to both debt collection actions were rendered in the same time period and CMC was aware of the entire debt at the time of the first action. For the above reasons, we hold that the subject matter of the two actions is the same.

The remaining requirements for res judicata have also been met. The parties in this action are the same as the parties in the Missoula County Justice Court action. The issue in this matter, whether Hatch owes amounts claimed due, is the same as the issue in the previous action and, as we have said, relates to the same subject matter. The capacities of the persons in this action are the same as the capacities of the identical persons in the previous action: Balyeat, as assignee \ trustee for CMC, claims Hatch, as an individual, is indebted to it for medical services provided by its assignor to Hatch.

Furthermore, the doctrine of res judicata bars not only subsequent litigation of previously litigated subject matter and issues, but also litigation of subject matters and issues which could have been litigated in the prior proceeding. Loney, 905 P.2d at 161. No evidence was presented showing that Balyeat lacked the opportunity to litigate all claims incurred by CMC during the period from November 10, 1992 to February 4, 1994, for services provided to the Hatches when Balyeat commenced its Missoula County Justice Court action in June, 1994.

Accordingly, we conclude that Balyeat’s second debt collection action is barred by res judicata. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and REGNIER concur.


text:
    WRIGHT OIL & TIRE CO., an Idaho Corporation, Plaintiff and Respondent, v. STEVE GOODRICH, d/b/a WEST GATE TEXACO and WEST YELLOWSTONE SNOWMOBILE RENTALS, INC., Defendants and Appellants.
    No. 96-561.
    Submitted on Briefs April 3, 1997.
    Decided August 5, 1997.
    54 St.Rep. 811. 942 P.2d 128.
    284 Mont. 6.

      For Appellants: Gerald J. Neely, Attorney at Law, Billings.
    For Respondent: Holly B. Brown, Attorney at Law, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

Steve Goodrich, doing business as Westgate Texaco (Goodrich), and West Yellowstone Snowmobile Rentals, Inc. (WYSR) appeal from the order of the Eighteenth Judicial District Court, Gallatin County, granting the motion for relief from judgment filed by Wright Oil & Tire Company (Wright Oil). We reverse.

We address the following issues on appeal:

1. Does this Court have jurisdiction to consider this appeal?

2. Did the District Court abuse its discretion in granting Wright Oil’s motion for relief from judgment pursuant to Ride 60(b)(6), M.R.Civ.R?

FACTUAL BACKGROUND

Wright Oil is an Idaho corporation in the business of providing wholesale petroleum products to other businesses. On November 9, 1994, Wright Oil filed a complaint against Goodrich to collect amounts allegedly due for wholesale fuel purchased by Goodrich. In his answer to the complaint, Goodrich denied owing the amount stated and alleged as an affirmative defense that the products purchased from Wright Oil were for the sole use and benefit of WYSR and that Wright Oil had failed to serve the proper party. Additionally, in discovery responses, Goodrich stated that the Westgate Texaco station was wholly owned by WYSR. Thereafter, Wright Oil amended its complaint to add WYSR as a defendant and allege that it also owed Wright Oil for the wholesale fuel. WYSR answered the amended complaint and denied that it owed Wright Oil the amount stated.

A bench trial was held, following which the District Court entered findings of fact and conclusions of law. The court concluded that Goodrich owed Wright Oil $25,474.54, plus finance charges, and that no evidence of record indicated the existence of either a contractual relationship between WYSR and Wright Oil or the alleged relationship between WYSR and Goodrich. The District Court entered judgment against Goodrich only on March 26, 1996, and notice of entry of judgment was filed on April 2, 1996.

On May 24, 1996, Wright Oil filed a Rule 60(b)(6), M.R.Civ.R, motion for relief from the judgment. It sought relief from the District Court’s denial of a judgment against WYSR and requested consideration of evidence in Wright Oil’s possession, but not presented at trial, which allegedly established that WYSR was the party responsible for payment of the amounts due. The District Court granted Wright Oil’s motion and ordered an evidentiary hearing, permitting Wright Oil to reopen its case regarding whether WYSR should be held liable for the amounts due. Goodrich and WYSR appeal.

DISCUSSION

1. Does this Court have jurisdiction to consider this appeal?

As a threshold matter, Wright Oil argues that this Court does not have jurisdiction to entertain Goodrich’s and WYSR’s appeal because the District Court’s order granting Wright Oil’s motion for relief from judgment is not a final judgment from which an appeal may be taken pursuant to Rule 1(b), M.R.App.P. We disagree.

Rule 1(b), M.R.App.P., provides, in part, that
[i]n civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases:
(1) From a final judgment entered in an action or special proceeding commenced in a district court ....
(2) From an order granting a new trial; or ... from any special order made after final judgment....

In this case, the District Court entered judgment on its findings of fact and conclusions of law on March 26, 1996, thus entering a final determination of the parties’ rights. See Rule 54(a), M.R.Civ.P. That was the “final judgment” in the action for Rule 1(b)(1) purposes and it is clear that Goodrich’s and WYSR’s appeal was not taken from that final judgment. Rule 1(b)(2), M.R.App.R, however, authorizes an appeal from a special order made after final judgment, and we have held that an order granting a motion for relief from judgment is a special order made after final judgment which is appealable under that Rule. See Roberts v. Empire Fire and Marine Ins. Co. (1996), 276 Mont. 225, 227, 915 P.2d 872, 873. We conclude, therefore, that Goodrich’s and WYSR’s appeal from the District Court’s order granting Wright Oil’s motion for relief from judgment is properly before us and we have jurisdiction to entertain it.

2. Did the District Court err in granting Wright Oil’s motion for relief from judgment pursuant to Rule 60(b)(6), M.R.Civ.P.?

Wright Oil’s Rule 60(b)(6) motion was premised on its assertion that Goodrich and WYSR improperly changed their position regarding WYSR’s liability for the debt in their posttrial proposed findings of fact and conclusions of law. Wright Oil argued that Goodrich’s answer to the complaint and answers to interrogatories, WYSR’s answer to the amended complaint, and the agreed facts and issues of law in the pretrial order misled it into believing that WYSR’s liability for the debt was not an issue at trial and, as a result, it did not present evidence regarding the relationship between Goodrich and WYSR.

After reviewing the parties’ briefs on Wright Oil’s motion and the additional evidence submitted by Wright Oil, the District Court determined that it would be inequitable to allow the judgment absolving WYSR from liability to stand. On that basis, the court granted Wright Oil’s motion for relief from the judgment and ordered an evidentiary hearing on the issue of WYSR’s liability.

Our review of a district court’s ruling on a Rule 60(b) motion for relief from judgment depends on whether or not the judgment was set aside. Karlen v. Evans (1996), 276 Mont. 181, 185, 915 P.2d 232, 235. Where, as here, the district court set the judgment aside and the appellant requests that it be reinstated, reversal is warranted only upon a showing of manifest abuse of discretion. Karlen, 915 P.2d at 235 (citation omitted).

Relief is appropriate under Rule 60(b)(6), M.R.Civ.P., only in extraordinary circumstances which go beyond those covered by the first five subsections of the rule. Falcon v. Faulkner (1995), 273 Mont. 327, 333, 903 P.2d 197, 201 (citation omitted). A motion for relief pursuant to Rule 60(b)(6) must contain more than just a request for a rehearing or a request that the court change its mind. Lussy v. Dye (1985), 215 Mont. 91, 93, 695 P.2d 465, 466. “It must be shown that something prevented a full presentation of the cause or an accurate determination on the merits and that for reasons of fairness and equity redress is justified.” Lussy, 695 P.2d at 466.

Goodrich and WYSR contend that the District Court abused its discretion in granting Wright Oil’s motion for relief from judgment because Wright Oil failed to establish that the circumstances of the case were so extraordinary as to warrant relief under Rule 60(b)(6), M.R.Civ.P. They argue that WYSR did not misrepresent its position regarding its liability for the amounts due and, thereby, prevent Wright Oil from fully presenting its case, as Wright Oil asserted; rather, Wright Oil simply failed to provide testimony or other evidence at trial proving its allegations against WYSR. We agree.

At the outset, we observe that “[t]he initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side.” Section 26-1-401, MCA. Additionally, if a party asserts a claim for relief, it has the burden of persuasion as to each fact the existence or nonexistence of which is essential to that claim. Section 26-1-402, MCA.

Wright Oil contends that it did not present evidence of WYSR’s liability because it presented its case in reliance on Goodrich’s representations in his answer to the original complaint and his responses to discovery that WYSR was responsible for the debt. Goodrich clearly did assert that WYSR was the entity liable for the amounts due to Wright Oil; it is not -unusual for a defendant in an action to assert that it is not the responsible party. That assertion by Goodrich, however, cannot be equated to an admission by WYSR that it was liable for the debt. Wright Oil amended its complaint to allege that both Goodrich and WYSR were hable and, absent an admission of liability from each defendant, it was required to prove its allegations as to each defendant. Section 26-1-402, MCA. WYSR never admitted that it was responsible for the debt and, thus, Wright Oil’s reliance on Goodrich’s statements to that effect was misplaced.

When Wright Oil amended its complaint to include WYSR as a named defendant and alleged that WYSR was responsible for the debt, it was required to produce evidence establishing that WYSR was actually liable for the amounts due. Sections 26-1-401 and 26-1-402, MCA. Wright Oil’s burden in this regard would be lifted only in the event WYSR conceded that it was liable for the debt. In its answer to the amended complaint, WYSR denied the allegation that it was indebted to Wright Oil for the amount stated. This denial effectively put that allegation into issue. See Rule 8(b), M.R.Civ.P. Moreover, the record does not reflect that WYSR admitted liability thereafter for the amounts allegedly due. Indeed, according to the pretrial order, one of the stated issues for the District Court to determine was “[w]ho the proper party Defendant is, i.e., Steve Goodrich or West Yellowstone Snowmobile Rentals, Inc., or both.” Since WYSR’s liability for the debt remained at issue, the burden remained on Wright Oil, pursuant to §§ 26-1-401 and 26-1-402, MCA, to produce evidence at trial in support of its claim that WYSR was liable. It failed to do so.

Wright Oil also contends that neither WYSR nor Goodrich provided any proof at trial — or even raised the issue — that WYSR was not liable for the debt and, therefore, it was unfairly surprised by Goodrich’s and WYSR’s proposed finding of fact that WYSR was not liable. This argument is without merit. As discussed above, Wright Oil added WYSR as a defendant and alleged that WYSR was liable. As a result, Wright Oil had the burden of proving its case against WYSR. See § 26-1-401, MCA. No proposed finding that WYSR was not liable should have “surprised” Wright Oil, given its failure to present a case against WYSR, and such a proposed finding could not be “unfair” under these circumstances.

Nor, as Wright Oil argues, did Goodrich and WYSR improperly change their legal position with respect to WYSR’s liability by offering a proposed finding of fact that Wright Oil offered no evidence regarding the nature or ownership of WYSR or that WYSR ever contracted with Wright Oil for the purchase of the petroleum products at issue. A party’s proposed findings of fact must be supported by the evidence presented and are submitted to a trial court to assist in its determination. See Rule 52(a), M.R.Civ.R They are not a statement of a party’s legal position on the issues. Here, the proposed finding properly reflected that Wright Oil failed to present evidence in support of its claim against WYSR. Moreover, Wright Oil had Goodrich’s discovery response, to the effect that WYSR was the liable entity because the petroleum products purchased from Wright Oil were for the sole use and benefit of WYSR, in its possession long before trial; that it neither obtained additional information for introduction into evidence nor elicited testimony about it at trial cannot be blamed on the parties defendant.

We previously have held that the conduct of an opposing party in handling a case may justify relief from a judgment pursuant to Rule 60(b)(6) when such conduct precludes the party requesting relief from adequately presenting its case. Moulding v. Hardman (1993), 257 Mont. 18, 847 P.2d 292. There, although Maulding’s attorney contacted Hardman’s insurance company prior to filing suit to request payment of Maulding’s medical bills allegedly incurred as a result of an accident involving Hardman’s car, the attorney made no further contact with the insurance company and failed to respond to the insurance company’s subsequent inquiries. Moulding, 847 P.2d at 297. The insurance company was not informed that a complaint had been filed against Hardman or that a default judgment had been entered for Hardman’s failure to appear until well over a year after Hardman’s default had been entered. Moulding, 847 P.2d at 297. We held that the manner in which Maulding’s attorney handled the case resulted in prejudice to the insurance company and created extraordinary circumstances justifying relief under Rule 60(b)(6). Moulding, 847 P.2d at 297.

In the present case, neither Goodrich nor WYSR acted so as to intentionally mislead Wright Oil or prevent it from adequately presenting its case. Early in the case, Goodrich took the position that WYSR was liable. WYSR took the opposite position. Thereafter, Goodrich chose not to rely on his affirmative defense and to risk the entry of judgment against him. That Wright Oil mistakenly believed there was no issue as to WYSR’s responsibility for the amounts due did not result from any improper conduct by Goodrich or WYSR. Nor did any conduct by the defendants, or either of them, prevent Wright Oil from adequately presenting its case. Thus, the “extraordinary circumstances” which may warrant relief under Rule 60(b)(6), M.R.Civ.R, do not exist in this case.

We conclude that Wright Oil failed to establish the existence of extraordinary circumstances which justified relief from the judgment pursuant to Rule 60(b)(6), M.R.Civ.P. We hold, therefore, that the District Court manifestly abused its discretion in granting Wright Oil’s motion for relief from judgment.

Reversed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and TRIEWEILER concur.


author: JUSTICE TRIEWEILER JUSTICE GRAY

text:
    BRIAN PARINI, Plaintiff and Appellant, v. MISSOULA COUNTY HIGH SCHOOL, DISTRICT NO. 1, and the following agents/employees, MIKE FREDRICKSON, MARK WRIGHT, NICK CARTER, JAY CHRISTOPHER, GINGER BILILE, JERRY PEASE, DICK GUILIANI, ROD BATES, TONY MARINO, LORA MEHRER, TEDDY MALOOF, and JOHN FREDERIKSON, Defendants & Respondents.
    No. 96-696.
    Submitted on Briefs May 1, 1997.
    Decided July 3, 1997.
    54 St.Rep. 711. 944 P.2d 199.
    284 Mont. 14.

      For Appellant: Mark E. Jones, Attorney at Law, Missoula.
    For Respondents: Molly Shepherd; Worden, Thane & Haines; Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Brian Parini, filed a complaint in the District Court for the Fourth Judicial District in Missoula County in which he: (1) appealed the Office of Public Instruction’s determination that he was not denied a free appropriate public education; and (2) asserted an independent claim in which he alleged that the respondents, Missoula County High School District No. 1 and twelve of its employees, negligently misplaced and misdiagnosed him as a special education student. The District Court affirmed the Office of Public Instruction’s decision and dismissed the negligent misplacement and misdiagnosis claim. Parini appeals. We affirm the judgment of the District Court.

The following issues are presented on appeal:

1. Did the District Court err when it affirmed the Office of Public Instruction’s determination that Brian Parini was not denied a free appropriate public education?

2. Did the District Court err when it dismissed Brian Parini’s negligent misdiagnosis and misplacement claim?

FACTUAL BACKGROUND

In 1989, when he was in the seventh grade, Brian Parini was diagnosed with a learning disability. He had previously been diagnosed with Attention Deficit Disorder. On that basis, school officials determined that he was eligible for special education services pursuant to the Individuals with Disabilities Education Act (IDEA).

The IDEA provides that disabled children are entitled to receive a free appropriate public education (“FAPE”), see 20 U.S.C. § 1400(c); mandates that an individualized education plan (“IEP”) be formulated for each eligible child, see 20 U.S.C. § 1401(a)(18)(D); and sets forth procedural safeguards and remedial provisions to ensure that disabled children receive adequate educational opportunities, see 20 U.S.C. § 1415.

In 1994, Rose Parini, Brian’s mother, filed a petition with the Office of Public Instruction (“OPI”) pursuant to the IDEA. The petition alleged that school officials failed to properly test and evaluate Brian and that, as a result, he was denied a FAPE. After a due process hearing, however, the OPI determined that he was not denied a FAPE.

Parini subsequently filed a complaint in the District Court in which he: (1) appealed the OPI’s decision; and (2) asserted an independent cause of action in which he alleged that the School District and twelve of its employees negligently misdiagnosed and misplaced him as a special education student. He claimed, therefore, that he is entitled to relief pursuant to the IDEA’S remedial provisions and to compensatory damages. The District Court dismissed Parini’s negligent misdiagnosis and misplacement claim and affirmed the OPI’s decision.

ISSUE 1

Did the District Court err when it affirmed the Office of Public Instruction’s determination that Brian Parini was not denied a free appropriate public education?

Rose Parini filed a petition with the OPI in which she contended that Brian was denied a FAPE. After an extensive hearing, the OPI concluded that the “IDEA does not require a school district to maximize the potential of a child with a disability but only to assure that the child receives an appropriate education reasonably calculated to enable him or her to receive educational benefit.” Additionally, the OPI made the following findings:

7. The absence of a complete three-year comprehensive re-evaluation of [Brian] constitutes a procedural flaw or inadequacy under IDEA. [Brian’s] own conduct is likely to have caused or contributed to the inadequacy.
8. The absence of a ... re-evaluation did not result in [Brian’s] loss of educational opportunity. His IEP’s continued to be constructed on informed, particularized assessments of his needs, abilities and performance. The October 1993 WORC Center evaluation and the July 1994 evaluation of Dr. Wollersheim establish that no causal link exists between the absence of the re-evaluation and the educational opportunity afforded [Brian]. There is no evidence that his IEP’s would have been constructed differently if a complete three-year re-evaluation had been conducted in 1991-1992.
9. The absence of a... re-evaluation also did not materially infringe upon [Rose Parini’s] opportunity to participate in the process of formulating IEP’s for [Brian]. With the assistance of experts, advocates and attorneys, as well as her own extensive research, she has played a pivotal role in the development of [Brian’s] IEP’s. In particular, she and [Brian’s] advocate were instrumental in formulating the November 30, 1993 IEP ....

On that basis, the OPI determined that Parini received an educational benefit and that, therefore, the School District did not deny him a FAPE.

Parini subsequently appealed the OPI’s decision to the District Court. The court determined that it “can set aside OPI’s ruling only after giving due weight to the administrative disposition and finding the aggrieved party has proved by a preponderance of the evidence the administrative disposition was erroneous.” After a hearing, the court made the following findings and conclusions:

[Brian] contends that the School District failed to provide a FAPE because it did not complete a comprehensive evaluation. The School District argues that evaluations were not completed because [Brian] was uncooperative. Although [Brian] argues that placing him with emotionally disturbed students denied him a FAPE, there is no evidence to support this claim. The preponderance of the evidence shows that the School District made numerous good faith efforts to create an IEP for Brian, but members of the team were never able to come to an agreement with [Brian and Rose]. Moreover, the testimony at the administrative hearing showed that [Brian] received ‘some education benefit’, which is the substantive standard for FAPE. Alamo Heights Indep. School Dist. v. State Bd. of Educ., 790 F.2d 1153 (5th Cir. 1986). The preponderance of the evidence also shows [Rose] participated extensively in the IEP formulation process. Therefore, [Brian] has failed to show that the administrative disposition was erroneous.

Parini maintains that the District Court erred when it affirmed the OPI’s decision. On appeal to this Court, he claims, as he did before the District Court, that the School District: (1) failed to properly test and evaluate him; (2) improperly placed him with emotionally disturbed students; and (3) failed to administer a comprehensive three-year evaluation pursuant to 20 U.S.C. § 1412(5)(C) and 34 C.F.R. § 300.534. On that basis, he asserts that he was denied a FAPE.

The IDEA entitles disabled children to a FAPE. See 20 U.S.C. § 1400(c). According to the United States Supreme Court, a FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’from the instruction.” Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley (1982), 458 U.S. 176,188-89,102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690, 701. Moreover, the Court concluded that the IDEA does not obligate a state to maximize each disabled child’s potential; rather, the IDEA requires a “basic floor of opportunity,” “sufficient to confer some educational benefit upon the handicapped child.” Rowley, 458 U.S. at 200-01, 102 S.Ct. at 3048.

The IDEA’S “basic floor of opportunity” is achieved for each individual child through: (1) the completion of an evaluation every three years pursuant to 20 U.S.C. § 1412(5)(C) and 34 C.F.R. § 300.534; and (2) the establishment of an IEP pursuant to 20 U.S.C. § 1401(a)(18)(D). An IEP is a written plan which incorporates the placement decisions made by the child’s IEP team of school authorities, the child’s parents, and other knowledgeable persons. See 20 U.S.C. § 1401(a)(20). Additionally, Congress devised procedural safeguards and remedial provisions to ensure full parental participation and the proper resolution of substantive disagreements. See 20 U.S.C. § 1415.

Furthermore, the IDEA, specifically 20 U.S.C. § 1415(e), governs judicial review of the OPI’s decisions:

(1) A decision made in a [due process] hearing conducted [by a state educational agency] shall be final, except that any party involved in such hearing may appeal such decision under the provisions of ... paragraph (2) of this subsection ....
(2) Any party aggrieved by the findings and decision made [in a due process hearing conducted by a state educational agency] ... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction .... In any action brought under this paragraph the corut shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

In Rowley, the Supreme Court interpreted 20 U.S.C. § 1415(e), and concluded that reviewing courts are required to engage in the following two-part inquiry:

First, has the State complied with the procedures set forth in [IDEA]? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051; see also Town of Burlington v. Department of Educ. (1st Cir. 1984), 736 F.2d 773, 788 (“[t]he ultimate question for a court under the Act is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time”).

Federal case law recognizes, and Parini concedes in his brief, that procedural flaws in the development of an IEP do not necessarily require a finding that a disabled child has been denied a FAPE. See, e.g., Independent Sch. Dist. No. 283 v. S.D. (8th Cir. 1996), 88 F.3d 556, 562. Rather, a FAPE is denied when procedural flaws result in the disabled child’s loss of an educational opportunity or seriously infringe a parent’s opportunity to participate in the process of formulating the IEP. See W.G. v. Board of Trustees of Target Range Sch. Dist. (9th Cir. 1992), 960 F.2d 1479,1484; Burke County Bd. of Educ. v. Denton (4th Cir. 1990), 895 F.2d 973, 982; Roland M. v. Concord Sch. Comm. (1st Cir. 1990), 910 F.2d 983, 994.

The Supreme Court, in Rowley, concluded that judicial review of actions filed pursuant to the IDEAincludes a substantive review and, therefore, is not limited to the issue of whether a state has complied with the IDEA’S procedural requirements. The Court, however, rejected the proposition that the IDEA confers upon courts broad powers to disturb the placement and policy decisions made by state and local school officials:

[T]he provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.

Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. The Court also recognized that 20 U.S.C. § 1415(e) requires a reviewing court to receive the records of the underlying administrative proceeding and, on that basis, concluded that Congress intended that “due weight” be given to the administrative proceeding. Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. Additionally, the party who challenges an administrative decision in an IDEA action bears the burden of proving by a preponderance of the evidence that the decision is erroneous. See Board of Educ. of Murphysboro v. Illinois Bd. of Educ. (7th Cir. 1994), 41 F.3d 1162, 1167.

Therefore, when an appellate court reviews a lower court’s findings of fact in an IDEA action, the appellate court is required to uphold those findings unless they are clearly erroneous. Yankton Sch. Dist. v. Schramm (8th Cir. 1996), 93 F.3d 1369,1374; Light v. Parkway C-2 Sch. Dist. (8th Cir. 1994), 41 F.3d 1223, 1229. When an appellate court reviews a lower court’s conclusions of law in an IDEA action, the standard of review is whether those conclusions are correct. Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996), 82 F.3d 1493, 1499. After a review of the record, we conclude that, based on the aforementioned legal principles and the application of those principles to the facts of this case, the District Court’s findings of fact are not clearly erroneous and its conclusions of law are correct. Accordingly, we hold that the District Court did not err when it affirmed the OPI’s determination that Brian Parini was not denied a free appropriate public education.

ISSUE 2

Did the District Court err when it dismissed Brian Parini’s negligent misdiagnosis and misplacement claim?

When we review a district comet’s conclusions of law, the standard of review is whether those conclusions are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. Additionally, it is well established that if a district court reaches the correct result, then we will uphold the court’s judgment regardless of the reasons for its decision. Robinson v. First Wyoming Bank (1995), 274 Mont. 307, 319, 909 P.2d 689, 696.

Parini’s complaint, filed in the District Court, not only appealed the OPI’s decision, but also asserted an independent claim in which he alleged that the School District and twelve of its employees negligently misdiagnosed and misplaced him as a special education student. On that basis, he maintained that he is entitled to compensatory damages.

The defendants, however, filed a motion to dismiss Parini’s claim. In its April 10,1996, order, the District Court concluded that:

The issue of whether a disabled child can sue under Negligent Misplacement and Diagnosis has not been brought before the Montana Supreme Court since IDEA was enacted. Evaluation and placement are covered by IDEA and should be addressed under procedures provided by IDEA, not in an independent tort action entitled Negligent Misplacement and Diagnosis.

On that basis, the District Court granted the defendants’ motion and, accordingly, dismissed Parini’s negligent misdiagnosis and misplacement claim.

On appeal, Parini contends that the District Court erred when it dismissed his claim. In support of this contention, he relies on our prior decision in B.M. v. State (1982), 200 Mont. 58, 649 P.2d 425.

In B.M., the plaintiff filed a complaint in which she alleged that the State negligently placed her in a special education program. The District Court, however, determined that the State does not owe a legal duty of care to students placed in special education programs and, on that basis, granted summary judgment in favor of the State.

On appeal, we reversed the District Court and concluded that the State does have a duty to use due care when it places students in special education programs. B.M., 200 Mont. at 63, 649 P.2d at 427. We based our conclusion on Article X, Section 1, of the Montana Constitution, which provides:

It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.

The School District, however, points out that the cause of action in B.M. accrued in 1973, two years before Congress enacted the Education for All Handicapped Children Act (now titled IDEA), and that, therefore, we did not consider the IDEA’S procedural safeguards and remedial provisions when we decided B.M.

We recognize that the IDEA sets forth comprehensive procedural safeguards and remedial provisions through which an aggrieved child and his or her parents can seek redress for alleged violations of the Act. However, we conclude that pursuant to our decision in B.M., and Article X, Section 1, of the Montana Constitution, a private cause of action against the State for its negligent misdiagnosis or misplacement of a special education student remains viable in Montana. Accordingly, we further conclude that Parini is entitled, pursuant to Montana law, to bring an independent tort claim against the School District for its alleged negligent misdiagnosis and misplacement of him as a special education student.

However, that conclusion does not resolve this issue. Parini asserted his negligent misdiagnosis and misplacement claim after the OPI had already decided that the School District did not deny him a FAPE. Moreover, the OPI’s decision was affirmed by the District Court, and now this Court on appeal.

The doctrine of res judicata bars the relitigation of a claim once a final judgment has been entered. Holtman v. 4-G’s Plumbing and Heating, Inc. (1994), 264 Mont. 432, 436, 872 P.2d 318, 320. Finality is accorded to the disposition of all issues that were raised or that could have been raised; a party, therefore, is prohibited from relitigating a claim that he or she has already had an opportunity to litigate. Traders State Bank v. Mann (1993), 258 Mont. 226, 238, 852 P.2d 604, 611. The following four elements must be satisfied in order to apply the doctrine of res judicata: (1) the parties or their privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same and relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the issues. Holtman, 264 Mont. at 436, 872 P.2d at 320.

We conclude that all four elements are satisfied in the underlying OPI and District Court actions. Furthermore, as stated by the Eighth Circuit Court of Appeals in S.D., “[w]hen that process [exhaustion of administrative remedies pursuant to 20 U.S.C. § 1415(f)] produces an administrative decision that is upheld on judicial review under IDEA, principles of issue and claim preclusion may properly be applied to short-circuit redundant claims under other laws.” S.D., 88 F.3d at 562 (citations omitted).

We conclude that, in this case, therefore, the doctrine of res judicata bars Parini from litigating his negligent misdiagnosis and misplacement claim. Accordingly, we hold that the District Court did not err when it dismissed his claim.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER and HUNT concur.

JUSTICE GRAY

specially concurring.

I concur in the Court’s opinion on issue one and specially concur in that opinion on issue two.

I agree that an independent cause of action for negligent misdiagnosis and misplacement of a special education student remains viable in Montana. While the IDEA sets forth comprehensive procedural safeguards and remedial provisions for alleged violations of that Act, it is not inconceivable that an action in tort could allege and prove negligence separate from, and not coextensive with, conduct which would violate the specific federal requirements contained in the IDEA. To the extent any such negligence caused damage to a special education student, that student should be entitled to recover. It is my view, however, that most IDEA-based cases will involve the same conduct as would be alleged under an independent tort action and, to that extent, I would hope that special education students continue to assert IDEA claims, in order to ensure that they receive the education required by the IDEA which is so critical to their futures, rather than independent tort actions in which monetary recovery ordinarily would be a poor substitute for a more appropriate education provided in a timely fashion.

I also agree with the Court that, under the circumstances of this case, res judicata bars Parini from litigating his independent cause of action. This is so because — while the Court does not expressly state it — Parini alleged the same underlying facts and issues with regard to his IDEA claim as he alleged in his independent cause of action. Once he failed to prevail on those facts and issues — here, in the IDEA claim at the OPI which was affirmed by the District Court and now by this Court — that final judgment is res judicata as to any further litigation on the same issues. As I understand the Court’s opinion, the same result would have obtained had Parini failed to seek judicial review of the adverse OPI decision and, instead, simply filed his independent action. In that event, the OPI decision would have become final without judicial review and res judicata would bar litigation of the tort action because the issues had been raised and a final decision rendered.

I join the Court in affirming the District Court.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NORMAN ALVIN ADAMS, Defendant and Appellant.
    No. 96-302.
    Submitted on Briefs December 19, 1996.
    Decided July 15, 1997.
    54 St.Rep. 717. 943 P.2d 955.
    284 Mont. 25.

      For Appellant: Amy N. Guth, Lincoln County Public Defender, Libby.
    For Respondent: Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General; Bernie Cassidy, Lincoln County Attorney, Libby.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Nineteenth Judicial District Court, Lincoln County. On February 22,1996, the District Court entered its findings of fact, conclusions of law and order denying Defendant Adams’ motion to suppress evidence seized pursuant to a search warrant. From this judgment, Defendant Adams appeals. We affirm.

The sole issue raised on appeal is whether the State conducted a search of Defendant Adams’ home which violated Defendant Adams’ constitutional guarantees of privacy and freedom from unreasonable search and seizure.

FACTUAL AND PROCEDURAL BACKGROUND

This case arose from a search of the rented residence of Defendant Adams (Adams) located in Libby, Montana. The search was conducted pursuant to a search warrant issued based upon information supplied by Michael Dotts (Dotts), a man arrested on September 23, 1995, in Lincoln County for assault and disorderly conduct. Upon his arrest, Dotts gave the police a false name. After his arrest, Dotts advised the police that he had information concerning a marijuana growing operation in Libby.

On September 25,1995, during his first interview with the police, Dotts told Detective Hurtig and Detective Martin he would like to make a deal with them. Although Dotts did not want the charges against him dropped, he wanted to be released on his own recognizance in exchange for his information regarding the marijuana growing operation. The detectives advised Dotts that they could not guarantee him anything. Rather, they told Dotts he should tell them everything he knew and explained that if his information was used, they might be able to help him; but, if the information was not used, he would remain in jail.

Dotts explained, in this first interview, that he had previously lived with Adams’ son, Gary, but that the marijuana growing operation was in Adams’ house in Libby. Because Dotts could not remember the address of Adams’ house, he left the station with the detectives and pointed out a gray house with an off-yellow roof, located on the corner of Quartz Road and Rawlings Road. After returning to the station to complete this first interview, Dotts told the detectives that he had helped to set up the grow operation in Adams’ house. He described the grow operation as a hydroponic system, where the plants are grown in water, with a 1000-watt converter bulb and a 400-watt, two burner bulb used as grow lights.

After this first interview, Detective Hurtig again went to Adams’ residence, without Dotts. He took pictures of Adams’ house and two vehicles parked in front of the house — a brown Mustang and a white Lincoln — vehicles which were not present when Dotts first identified the house. Upon his return to the station, Detective Hurtig learned that the State of Washington had a warrant for Dotts’ arrest. Consequently, only two hours after the first interview, Detective Hurtig conducted a second interview with Dotts. He explained to Dotts that due to the outstanding warrant, he could not release Dotts on his own recognizance. Despite this, Dotts agreed to interview with Detective Hurtig for a second time to describe the marijuana growing operation in Libby.

In the second interview, Dotts again described the hydroponic marijuana growing operation he helped set up and the type of plants that Adams was growing. Dotts explained that only three weeks earlier he had been in Adams’ house which Dotts believed Adams rented under a false name. Additionally, Dotts’ description of the vehicles driven by Adams and his son, Gary, matched the description of the vehicles that Detective Hurtig had previously photographed at Adams’house. Furthermore, Dotts stated that, prior to his arrest that day, he had talked with Gary Adams who informed him that “they were moving the plants” and getting ready to go to Sandpoint, Idaho. Shortly after this second interview, Detective Hurtig corroborated Dotts’ statement by locating in the Clerk and Recorder’s office the name of the owner of the house Adams rented, calling the owner and confirming that Adams was renting the house under his true name.

Based upon Dotts’information, Detective Hurtig prepared a search warrant application that same day (September 25, 1995) using a generic search warrant form that he obtained from the Montana Department of Justice which specifically listed the types of materials commonly used and found in conjunction with a marijuana growing operation. In this application, Detective Hurtig did not use Dotts as a confidential informant, but rather specifically identified him. Detective Hurtig explained that Dotts had provided him with information about a growing operation involving over 100 marijuana plants while Dotts was held in the Lincoln County Jail due to his arrest in Lincoln County for assault and because the State of Washington had issued a warrant for his arrest. Detective Hurtig also explained Dotts’ role in helping to set up the marijuana growing operation in Adams’ house. Furthermore, Detective Hurtig described his personal observations of Dotts and explained how he had corroborated Dotts’ information.

Without consulting the Lincoln County Attorney’s Office, Detective Hurtig presented the search warrant application on September 25, 1995, to the acting district court judge who reviewed the application and signed the search warrant authorizing a search of Adams’ residence. That same afternoon, Detective Hurtig served and executed the search warrant on Adams’ house. The search yielded a sophisticated hydroponic marijuana growing operation and approximately 133 marijuana plants in different stages of growth. Apparently, either a search of the vehicles on the property was not conducted or if a search was conducted, no incriminating evidence was found. Thereafter, Detective Hurtig arrested Adams on the charge of Criminal Production or Manufacture of Dangerous Drugs.

On October 5,1995, Adams was charged with Criminal Production or Manufacture of Dangerous Drugs pursuant to § 45-9-110, MCA. Adams filed a motion to suppress evidence seized pursuant to a search warrant and the District Court heard this motion on February 5,1996. On February 22,1996, the District Court entered its findings of fact, conclusions of law and order denying Adams’ motion to suppress. Subsequently, Adams entered into a plea agreement. Pursuant to the plea agreement, Adams plead guilty to Criminal Possession of Dangerous Drugs pursuant to § 45-9-102, MCA, and the State agreed to dismiss the charge of Criminal Production or Manufacture of Dangerous Drugs. Adams reserved the right to appeal the District Court’s denial of his suppression motion. On April 17, 1996, Adams entered a guilty plea, acknowledging that he had possessed marijuana in his home on September 25, 1995, in violation of the law. On May 23,1996, Adams was given a three-year deferred sentence with a $500.00 fine. Adams now appeals the District Court’s February 22, 1996 Order denying his motion to suppress.

DISCUSSION

Did the State conduct a search of Adams’ home which violated Adams’ constitutional guarantees of privacy and freedom from unreasonable search and seizure?

On January 17, 1996, Adams filed a motion to suppress evidence seized by the Lincoln County Sheriff’s Department during the search conducted on September 25, 1995, and requested that the District Court conduct a hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (procedure for challenging the truthfulness of factual statements made in an application for search warrant). In his brief supporting his suppression motion, Adams alleged that the State conducted an unreasonable search because the search warrant lacked probable cause. Pursuant to Adams’ request in his suppression motion, the District Court conducted a hearing on February 5, 1996, and heard the testimony of Detectives Hurtig and Martin as well as Adams.

Subsequently, the District Court entered its findings of fact, conclusions of law and order denying Adams’ motion to suppress. In Conclusion of Law No. 3, the District Court stated:

On the facts before the Court, it cannot be said that Dotts’ statements should have been rejected as coming from a source unworthy of belief. The Court concludes that the Lincoln Comity Sheriff’s Office had probable cause to believe that drugs were present in a house they knew to be occupied by Adams.

Dotts’ admissions to: (1) selling the grow equipment to Adams; (2) assisting Adams in settingup the operation; and (3) manicuring the marijuana plants for Adams, are all corroborative of Dotts’ statements regarding the presence of a marijuana grow operation in Adams’ residence. Furthermore, regarding corroboration, the Application states:

“Mr. Dotts said that Norman Adams drove a white Lincoln with Alaska license plates, and that Gary Adams drove a Ford Mustang GT that was brown in color that had Montana license on it. This matches the two vehicles that were parked in front of the residence of 45 Quartz Road although I could not see the license plates of the vehicles.
I then checked with the Land Classification Office in the Lincoln County Courthouse to find out who owned the property and found that it was owned by Greg and Susan Rice of Libby. I contacted Susan Rice and she told me that Norman Adams was currently renting the property from them. Mr. Dotts appears to be telling the truth and I was able to confirm a large portion of the information that he has given me. Mr. Dotts asked for nothing in giving me this information and I have offered him nothing in return for this information.”

The fact that Dotts happened to know the types of cars driven by the Adams and the fact that Adams was renting the residence from a doctor contribute little of substance to his credibility. Nonetheless, these minor facts, coupled with Dotts’ admissions against interest, do provide some corroboration which further bolsters his testimony.

Granted, the information in the Application is arguably incomplete or inaccurate. For instance, it is not mentioned in the Application that, contrary to Dotts’ statement to the detectives, Adams was not renting the house under an alias. Nor is it mentioned in the Application that the only alias involved in this case was the one Dotts himself used when he was arrested.

Nor is it entirely true that “Dotts asked for nothing in giving me this information ...” In fact, when he first offered the information, Dotts made it clear he was seeking a release from custody on his own recognizance. Before the search warrant was actually issued, Detective Hurtig testified that he had received information from the State of Washington that Dotts was to be held in custody without bail, and he had conveyed this information to Dotts, but when Dotts provided the information which formed the basis of the Application, he was operating under the hope and belief that the detectives could assist him in being released from custody.

These inconsistencies are troubling but not fatal. The fact remains that Dotts provided detailed and fresh information about criminal activity, and his status as a co-conspirator in that criminal activity, coupled with his knowledge of certain collateral facts, establish his trustworthiness for purposes of the Application. The Court concludes probable cause was established for the search of Adams’ residence.

On appeal, Adams raises three arguments to support his contention that the District Court erred by denying his suppression motion. First, pursuant to Article II, Section 10 of the Montana Constitution, Adams argues that we should adopt a policy of “zero tolerance” when intentional misstatements or omissions of police officers are made in search warrant applications. Second, pursuant to Article II, Section 11 of the Montana Constitution, Adams argues that the search warrant was not supported by sufficient probable cause due to Detective Hurtig’s alleged intentional misstatements and omissions in his search warrant application. Finally, Adams argues that the search warrant was unconstitutionally overbroad because it did not state with sufficient particularity the items to be seized in Adams’ residence.

Adams first argues that, based on Article II, Section 10 of the Montana Constitution, Montana’s privacy clause, this Court should abandon the procedure set forth in Franks which allows a court to reevaluate the sufficiency of probable cause supporting a search warrant after excising any misstatements which a defendant has proven by a preponderance of the evidence to be intentional. In its place, Adams argues that we should adopt a policy of “zero tolerance” which would allow a court to quash an entire search warrant if the warrant’s application contained intentional misstatements or omissions. The State responds that we should not address this issue because Adams raises it for the first time on appeal.

Upon review of Adams’ brief in support of his motion to suppress and the transcript of the District Court hearing held February 5, 1996, we conclude that Adams did not raise this theory of “zero tolerance” to support his objection to the search warrant application. Therefore, because this argument is raised for the first time on appeal, we will not address it. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100. Consequently, the procedure set forth in Franks is controlling in this case.

While Adams’ next argument is not clearly articulated on appeal, he appears to alternatively rely on Article II, Section 11 of the Montana Constitution and Franks to assert that this Court should review the District Court’s conclusions regarding Detective Hurtig’s alleged misstatements and omissions as well as the court’s overall decision that the search warrant was supported by sufficient probable cause. Unlike Adams’ first argument concerning our adoption of a policy of “zero tolerance,” we note that Adams, in his suppression motion, requested that the District Court hold a Franks hearing to address Detective Hurtig’s alleged misstatements and omissions. Furthermore, after the hearing held February 5, 1996, the District Court directly addressed these issues in its February 22,1996 Order, as evidenced in Conclusion of Law No. 3, set forth above. Consequently, because Adams raised this argument before the District Court, we will address the merits of Adams’ second argument now on appeal.

Relying on State v. Valley (1992), 252 Mont. 489, 830 P.2d 1255; and State v. Kaluza (1995), 272 Mont. 404, 901 P.2d 107, Adams argues that the District Court erred when it denied his motion to suppress based on its determination that sufficient probable cause supported the search warrant. Adams asserts that probable cause did not exist because Detective Hurtig failed to fully corroborate all of the information provided by Dotts and because his statement in the search warrant application describing Dotts as a reliable informant was not based on any objective facts. Adams contends that Detective Hurtig’s assertion of Dotts’ reliability is baseless for a number of reasons. First, Adams notes that Detective Hurtig omitted from the search warrant application the fact that Dotts had given a false name upon his arrest. Second, Adams claims that Detective Hurtig misstated that Dotts did not expect to be released from jail in return for his information. Finally, Adams asserts that Detective Hurtig’s statements concerning Dotts’ reliability are directly contradicted by Detective Martin’s statements, made during Dotts’ first interview, that the detectives did not know him.

The State responds that Adams’ reliance on Valley and Kaluza to assert that Dotts was an “unreliable” informant is misplaced because, unlike in those cases, Dotts was not a confidential informant. Rather, the State argues that Dotts’ veracity and reliability were established when he made statements implicating himself in the marijuana growing operation. That is, the State contends that because Dotts’ information concerning the marijuana growing operation allegedly located in Adams’ house implicated Dotts’ own penal interests, his statements were inherently reliable, and, therefore, did not require corroboration. Furthermore, the State maintains that the omissions and misstatements that Adams argues Detective Hurtig made in the application for search warrant are immaterial to the determination of Dotts’ credibility. Finally, the State asserts that Dotts’ basis of knowledge was established because he provided fresh, detailed information based upon his personal observation of the growing operation. Accordingly, the State argues that the District Court properly concluded that the search warrant was supported by probable cause, and, thereby properly denied Adams’ motion to suppress. We agree.

‘We review the District Court’s conclusions of law in ruling on a motion to suppress evidence to determine whether the trial court’s interpretation and application of the law is correct.” State v. Pastos (1994), 269 Mont. 43, 45, 887 P.2d 199, 201. Generally, probable cause must be determined from the four comers of the search warrant application. State v. Rinehart (1993), 262 Mont. 204, 211, 864 P.2d 1219, 1223. However, the United States Supreme Court set forth an exception to this rale in Franks, which allowed a defendant to challenge the truthfulness of statements made in an application for search warrant. We adopted the Franks procedure in State v. Sykes (1983), 194 Mont. 14, 20, 663 P.2d 691, 695, and we have since consistently applied this rationale. See e.g., State v. Feland (1994), 267 Mont. 112, 882 P.2d 500; State v. Mosley (1993), 260 Mont. 109, 860 P.2d 69; State v. Garberding (1990), 245 Mont. 356, 801 P.2d 583; State v. Hembd (1989), 235 Mont. 361, 767 P.2d 864 (overruled on other grounds); State v. Wilson (1985), 218 Mont. 359, 708 P.2d 270.

In Mosley, we described the Franks procedure as follows:

The defendant must first make a substantial preliminary showing that a false statement was knowingly or intentionally made, or was made with reckless disregard for the truth. If defendant makes such a showing, and the misstatement was necessary to a finding of probable cause, a hearing must be held at defendant’s request. When a hearing is held, the allegation of pexjury or reckless disregard must be proved by defendant by a preponderance of the evidence. Once proved, the offending information must be excised from the warrant application. If after the egregious material is excised, the remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded.

Mosley, 860 P.2d at 73 (citing Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77).

Accordingly, before we address Adams’ argument that the search warrant lacked probable cause, we must first consider the effect of Detective Hurtig’s alleged misstatements and omissions on Dotts’ credibility. Adams first notes that Detective Hurtig omitted from the search warrant application the fact that Dotts had given a false name upon his arrest. Second, Adams claims that Detective Hurtig misstated that Dotts did not expect to be released from jail in return for his information. We agree with the State that this information is immaterial to the determination of Dotts’ credibility.

In Garberding, a defendant similarly argued that the district court erred by denying him an evidentiary hearing pursuant to Franks based on the alleged facts that the sheriff had failed to indicate in the search warrant application that the primary informant was a convicted felon and had received a cash reward for his information. Garberding, 801 P.2d at 586. We disagreed with the defendant, concluding that these alleged misstatements and omissions did not justify a Franks hearing. Garberding, 801 P.2d at 586. Rather, we concluded that this information added credit to the informant’s tip because “[a] person of known criminal activity or a person admitting his own criminal activity is not likely to place himself in such a dubious position unless he is telling the truth.” Garberding, 801 P.2d at 586.

Here, the District Court concluded in Conclusion of Law No. 3, that upon review of the misstatements and omissions regarding Dotts’ use of a false name upon his arrest, his expectation of release in exchange for his information about the marijuana growing operation, as well as Dotts’ admissions concerning his participation in the growing operation, “it cannot be said that Dotts’ statements should have been rejected as coming from a source unworthy of belief.” We agree. Just as in Garberding, Dotts admitted to his own criminal activity, and, therefore, the information about Dotts’ use of a false name and his expectation of release “does not cast doubt on the reliability of his information.” See Garberding, 801 P.2d at 586. Consequently, we find unpersuasive Adams’ arguments that based on Detective Hurtig’s misstatements and omissions the District Court erred when it denied his motion to suppress.

Additionally, we find unpersuasive Adams’ argument that Detective Hurtig’s statements in the search warrant application concerning Dotts’ reliability are directly contradicted by Detective Martin’s statements, made during Dotts’ first interview, that the detectives did not know him. In response to Dotts’ question, Detective Martin explained in this first interview that he could not use Dotts as a confidential informant because this was the first time he had met Dotts:

If I put down in a search warrant I have a confidential reliable informant, it has to be something or somebody I know, somebody that I’ve dealt with in the past, somebody that I know has been truthful with me in the past and has never lied to me and so the information they’re giving me is going to be truthful now..... With you, I don’t have that boat to go rowing in.

Contrary to Adams’ argument, Detective Martin’s comments do not contradict Detective Hurtig’s statements concerning Dotts’reliability. Rather, we consider these comments merely an explanation why Dotts would not be used as a confidential informant.

Having concluded that the misstatements and omissions concerning Dotts’ use of a false name and expectation of release are immaterial to his credibility, we next consider whether the District Court correctly concluded that probable cause supported the search warrant. When reviewing the issuance of a search warrant, our duty is to ensure that the magistrate or lower court had a substantial basis for concluding that probable cause existed; our duty is not to review the lower court’s determination de novo. Rinehart, 864 P.2d at 1223.

A magistrate’s determination that probable cause exists should be paid great deference by reviewing cotuts and every reasonable inference possible should be drawn to support that determination. If a magistrate issues a search warrant after subjecting the application to the totality of the circumstances test, a reviewing cotut must presume that decision to be correct.

Rinehart, 864 P.2d at 1223 (citations omitted).

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect a person’s right to be free from unlawful searches and seizures by requiring that probable cause exist before a search warrant is issued. Rinehart, 864 P.2d at 1222. Yet, prior to issuing a search warrant, a magistrate must determine only that there is a probability, not a prima facie showing, of criminal activity. Rinehart, 864 P.2d at 1222. We previously adopted the “totality of the circumstances” test, as set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, to determine whether probable cause existed for issuance of a search warrant. State v. O’Neill (1984), 208 Mont. 386, 679 P.2d 760. In determining probable cause under the totality of the circumstances test, the veracity, reliability and basis of knowledge of an informant remain highly relevant factors. Rinehart, 864 P.2d at 1222.

As the State correctly contends, Adams’ reliance on Valley and Kaluza to argue that Dotts’ information lacked veracity and reliability is misplaced because both cases involved confidential informants or anonymous tips. See Valley, 830 P.2d 1255; Kaluza, 901 P.2d 107. In contrast to the informants in those cases, Dotts was not a confidential informant, and, therefore, Detective Hurtig did not need to verify Dotts’ reliability by referencing his past conduct. Rather, Dotts’ veracity and reliability were established through Dotts’ statements implicating himself in the marijuana growing operation. See State v. Sundberg (1988), 235 Mont. 115, 121, 765 P.2d 736, 740. See also Garberding, 801 P.2d at 586.

In fact, even if Dotts had been a confidential informant, the information he provided would have established sufficient probable cause because he admitted to helping set up the marijuana growing operation in Adams’ house. See Sundberg, 765 P.2d at 740 (admissions against interest are sufficient to establish probable cause). In Sundberg, a confidential informant admitted to marijuana use and stated that he had been to the defendant’s home within the previous ten days and had seen marijuana growing there. We concluded that the affidavit containing this information was sufficient to establish probable cause for a search warrant. In support of our conclusion, we quoted the United States Supreme Court:

Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a “break” does not eliminate the residual risk and opp[r]obrium of having committed criminal conduct....

Sundberg, 765 P.2d at 740 (quoting United States v. Harris (1971), 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723, 734) (emphasis added).

Here, Dotts’ credibility also is sufficient to support a finding of probable cause to search. First, Dotts was not used as a confidential informant. Second, as the District Court noted, Dotts admitted selling marijuana growing equipment to Adams; assisting Adams in setting up the operation; and manicuring marijuana plants for Adams. Based on this information, the District Court correctly concluded that “[Dotts’] status as a co-conspirator in that criminal activity, coupled with his knowledge of certain collateral facts, establish his trustworthiness for purposes of the Application [for Search Warrant].” Despite Adams’ arguments to the contrary, Detective Hurtig did not need to include additional information in the search warrant application concerning Dotts’ past conduct to establish Dotts’ reliability or veracity.

Nonetheless, Adams also contends that Detective Hurtig failed to fully corroborate Dotts’ information. Specifically, Adams asserts that Detective Hurtig needed to more fully corroborate Dotts’ information than just verifying that Dotts could properly identify Adams’ house and the vehicles that Adams and his son drove as well as verifying that Adams rented the identified house. Yet, corroboration of an informant’s information through other sources is only necessary when the information is hearsay or the informant is anonymous. Rinehart, 864 P.2d at 1224. Here, Dotts personally observed the marijuana growing operation in Adams’ house and he was not used as an anonymous informant. Consequently, corroboration of Dotts’ information was not necessary. See Rinehart, 864 P.2d at 1224.

In sum, we conclude that Detective Hurtig’s misstatements and omissions were immaterial to the determination of Dotts’ credibility. Furthermore, we conclude that Dotts’ admissions against interest regarding his participation in setting up the marijuana growing operation, without any further corroboration, provided the District Court with a substantial basis for concluding that probable cause supported the search warrant. Accordingly, we hold that the District Court properly denied Adams’ motion to suppress.

Finally, Adams argues that the search warrant was unconstitutionally overbroad because it did not state with sufficient particularity the items to be seized in Adams’ residence. At the conclusion of the February 5, 1996 suppression hearing, Adams informed the District Court that he would file a supplemental brief raising the issue that the search warrant was overbroad. Adams acknowledges that he failed to file this supplemental brief “for reasons contained outside of the court record.” Upon review of the record, we also note that no record of Adams’ objection concerning the search warrant’s over-breadth was made. However, the District Court did address this issue in its February 22, 1996 decision. Conclusion of Law No. 4 states in pertinent part:

[Adams] raised a question about the scope of the search permitted by the Search Warrant. Specifically, [Adams] objects that Detective Hurtig was authorized to search the vehicles as well as the residence itself. .... In this case, however, because no search of the vehicles was apparently conducted, or if one was, no incriminating evidence was located in the vehicles, there is no basis to object to the search.

Now on appeal, Adams raises this issue concerning the search warrant’s overbreadth, but he does not argue that authorization for a search of the vehicles was overbroad, rather he argues that the search warrant application and the search warrant were standardized forms enumerating “all the various things that any person, including those engaged in ordinary legal activities, might legitimately have in their homes or offices.” Therefore, Adams contends that because the search warrant did not specify with sufficient particularity the items to be seized in Adams’ residence, it was unconstitutionally broad. Additionally, Adams asserts that despite his failure to file his supplemental brief, the District Court did consider and rule upon the overbreadth issue in its Memorandum in Support of the Order filed jointly with its February 22,1996 decision.

The State responds that we should not address this issue because Adams raises it for the first time on appeal. Referring to the District Court’s Conclusion of Law No. 4, the State contends that while it appears that Adams objected to the breadth of the search warrant, he only did so to the extent the search warrant authorized the search of the vehicles. The State asserts that Adams never objected to the search warrant on the grounds that the warrant did not state with sufficient particularity the items to be seized within the residence. Consequently, the State argues that Adams raises a new theory for his objection concerning the search warrant’s overbreadth for the first time on appeal, and, therefore, we should not address this issue. We agree.

A party may not change his theory on appeal from that advanced in the district court. State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016. Upon review of Adams’brief in support of his motion to suppress evidence and the transcript of the District Court hearing held February 5, 1996, we conclude that Adams did not raise this theory to support his objection to the breadth of the search warrant. Consequently, we will not address the merits of this argument.

In sum, we hold that the District Court had a substantial basis for concluding that probable cause supported the search warrant, and, therefore, the District Court properly denied Adams’ motion to suppress.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and LEAPHART concur.