text:
    In the MATTER OF THE ADOPTION OF D. J. V.
    No. 89-561.
    Submitted May 5, 1990.
    Decided Aug. 20, 1990.
    796 P.2d 1076.

      Chris Christensen, Keil & Christensen, Kalispell, for appellant.
    Scott O. Swanson, Pendroy, for respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This appeal involves an adoption proceedings held in the Ninth Judicial District, Pondera County. Appellant, Kent Keil, the natural father and respondent below, appeals the July 5, 1989 order and decree terminating his parental rights and granting the adoption of bis son, D. J. V., by D. J. V.’s stepfather, Albert Blockeel, Jr. The District Court ruled that the natural father’s consent was not required for the adoption because he failed to provide support for his son for a period of one year before the filing of the petition for adoption. We affirm the District Court’s order and decree.

The natural father raises the following issue on appeal:

Did the District Comb err in finding that the natural father’s consent to the adoption of D. J. V. was not required because the natural father did not contribute to the support of D. J. V. during a period of one year before the filing of the petition for adoption?

D. J. V. was born on September 2, 1987, in Choteau, Montana. In 1986, Carolyn Vandenbos (Carolyn), a 17 year-old junior in high school, began dating Kent Keil (Kent), a college student at Montana State University. In January of 1987, Carolyn discovered that she was pregnant with Kent’s child; at that time, Kent broke off their relationship.

Upon discovering Carolyn’s pregnancy, Kent’s parents, Dale and Sheri Keil, took an active interest in Carolyn’s welfare. They arranged for her to receive counseling. Kent attended one of these sessions, and apparently drove Carolyn home from another, but otherwise did not take part in the counseling sessions.

After D. J. V. was bom, Dale and Sheri visited several times with the baby in their home. Kent did not see his son until two months after the birth, when Carolyn’s cousin arranged a half hour visit. According to Carolyn, Kent held the baby, but did not appear to take a great deal of interest in him.

On another occasion, Kent happened to arrive at bis parent’s home when Carolyn and D. J. V. were visiting, and two photographs were taken of Kent and the child. The parties disagree on how many more times Kent visited with his son. Carolyn remembers only two occasions in which Kent saw D. J. V., whereas Kent testified that he saw his son at least five or six times. Testimony from the parties also differs whether Kent attempted to pay any of Carolyn’s medical expenses. Carolyn claims Kent never offered or paid any of her medical expenses during the pregnancy. In contrast, Kent claims that he specifically requested Carolyn to supply him with the medical bills so that he could pay them. Despite this offer by Kent, the record reveals that Kent failed to pay any of Carolyn’s and D. J. V. ’s medical expenses.

Kent appears from the record to be a rather prosperous young man. He estimates his net worth as being $200,000 and he also expects a substantial inheritance. Despite his wealth, Kent has not paid anything toward the support of his child. He has given no clothes or gifts of any kind to the boy.

In January of 1988, the petitioner, Albert Blockeel, Jr. (Albert), began dating Carolyn. By August, they had decided to marry. As part of their marriage plans, they wished to have D. J. V. adopted by Albert. At the suggestion of their lawyer, Jim Obie, and Dale Keil, who was acting as his son’s lawyer, Carolyn and Albert met with Kent and his new wife, Lisa, to discuss the possibility of Kent giving his consent to the adoption. Kent refused to consent to the adoption, and inquired whether Carolyn and Albert wanted child support. The subject of visitation also surfaced. Albert invited Kent and his wife to come to their house at anytime; Kent, however, chose not to take advantage of Albert’s invitation to see D. J. V.

Later, Carolyn and Albert were married on October 28,1988, and on February 21, 1989, Albert filed a petition for adoption. After a hearing on April 17,1989, the District Court ruled that Kent’s consent was not required, under § 40-8-111(1)(a)(v), MCA, since Kent failed to contribute to his son’s support for a period of one year prior to the filing of the petition for adoption.

The central issue in this appeal involves the District Court’s application of the adoption statute, § 40-8-111, MCA. Section 40-8-111(1), MCA, generally requires the filing of written consents in an adoption proceeding. However, consent for the adoption is not required from a father or mother:

“(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption .. . .” Section 40-8-111(1)(a)(v), MCA.

Accordingly, a father’s rights may be terminated, and an adoption decreed without that parent’s consent upon a showing of nonsupport under § 40-8-111(1)(a)(v), MCA. In re the Adoption of R. M. (Mont. 1990), [241 Mont. 111,] 785 P.2d 709, 711, 47 St.Rep. 124, 127.

As we have previously held, “Parental rights involve a fundamental liberty interest, and a judicial decree terminating such rights must be supported by clear and convincing evidence.” R. M., 785 P.2d at 711; In re the Adoption of C. R. D. (Mont. 1989), [240 Mont. 106,] 782 P.2d 1280, 1282; Matter of R. B. (1985), 217 Mont. 99, 102-103, 703 P.2d 846, 848, citing Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606. It is a fundamental principle of law, however, that parental rights do not exist without concomitant obligations. As the District Court properly noted, “It is the public policy of the State of Montana that the statutes concerning the termination of parental rights should not be interpreted in favor of those who shun the burden of parental obligations.” In re Burton’s Adoption, 147 Cal.App.2d 125, 305 P.2d 185, 191; In re the Adoption of S. L. R. (1982), 196 Mont. 411, 415, 640 P.2d 886, 888; In re the Adoption of B. L. P. (1986), 224 Mont. 182, 186, 728 P.2d 803, 805; In re the Adoption of R. G. C. (1987), 228 Mont. 345, 349, 742 P.2d 471, 474.

As the District Court notes, the central issue in this case is whether Kent has contributed to the support of D. J. V. during a period of one year before the filing of the petition. The District Court found Kent had failed to pay any support, and therefore his consent was not needed under § 40-8-411(1)(a)(v), MCA.

Kent argues that because there was no court order requiring him to pay child support, the District Court cannot terminate his parental rights pursuant to § 40-8-111(1)(a)(v), MCA. Furthermore, Kent contends that virtually all of the Montana cases decided under § 40-8-111(1)(a)(v), MCA, involve court-ordered child support. Kent is correct; most of the adoption cases under the statute involve court-ordered support; however, a parent’s obligation to his child is not dependent on an order of the court. Section 40-6-211, MCA. There is no requirement under § 40-8-111(1)(a)(v), MCA, that the child support be court-ordered. If the father has provided no support during the one year period prior to the filing of the petition for adoption and the father is able to provide support, then consent is not required. The absence of a child support order does not absolve Kent of his legal duty to support his child.

Next, Kent argues that his parental rights should not be terminated because he made an offer concerning support at a meeting in the Keg Restaurant in Conrad, Montana. At the meeting, Carolyn and Albert met with Kent and his new wife, Lisa, to discuss Albert adopting D. J. V. At the meeting, Kent asked Carolyn if she needed support, and she refused. According to Kent, this offer showed his willingness to pay the support, and thus his rights should not be terminated under § 40-8-411(1)(a)(v), MCA. We disagree, and adopt the District Court’s reasoning set forth in its memorandum:

“This Court agrees with the Petitioner that, at most, the discussion which occurred during July or August of 1988 was a mere inquiry concerning support which was insufficient to exempt the father from the requirements of § 40-8-111, MCA. The discussion took place one year subsequent to the birth of the child. There was no promise or offer to pay any child support for the preceding year. There was not a promise or offer to pay any of the expenses of the pregnancy or delivery. There was no specific dollar amount of future child support. No checks were written. No trust account was set up for the child. No health insurance policy was provided for the child. The father merely inquired of the Petitioner whether or not she wanted any support to be paid. The Petitioner, who was not yet married to the child’s mother, answered ‘no.’ The father has not ever actually contributed any money whatsoever to this child’s support or ever made a specific offer of child support.”

In the past, this Court has strictly upheld the child support requirements under § 40-8-111, MCA. In In re the Adoption of R. A. S. (1984), 208 Mont. 438, 679 P.2d 220, the father had paid the sum of $450,00 child support during the one year period immediately preceding the filing of the petition for adoption. However, this payment was properly attributable to a child support obligation which had accrued prior to the one year period preceding the filing of the petition for adoption. Therefore, the requirement of support during the one year period before the filing of the adoption petition was not met and the father’s consent to the adoption was not required. R. A. S., 679 P.2d at 223, 224. If actual payment of some child support, under R. A. S., does not toll the running of § 40-8-111(1)(a)(v), MCA, then Kent’s mere inquiry regarding child support is surely insufficient to toll the statute.

It is uncontroverted that Kent has not contributed financial support to D. J. V. , in the preceding one year or at any time. By Kent’s own admission, he has not paid any expenses of Carolyn’s pregnancy or hospitalization, or any child support since the birth of D. J. V. This is not a case where the father is suffering financial hardship. Thus, there is ample “clear and convincing evidence” to support the District Court’s termination of Kent’s parental rights.

Finally, Kent argues the doctrine of equitable estoppel should preclude petitioner (Albert) from asserting that Kent failed to pay child support. According to Kent, both Albert and Carolyn cleverly refused his “offer” of child support at the Keg Restaurant, in order to later assert at the adoption proceeding that Kent’s consent was not necessary. Kent claims that Albert and Carolyn should not be allowed to induce him to forego making child support payments, and then utilize § 40-8-111(1)(a)(v), MCA, which deprives Kent of his parental rights for his failure to pay child support.

Equitable estoppel is a principle of equity, Cremer v. Cremer Rodeo Lands and Livestock Co. (1979), 181 Mont. 87, 93, 592 P.2d 485, 489, used to promote justice, honesty, fair dealing and to prevent injustice. Keneco v. Cantrell (1977), 174 Mont. 130, 135, 568 P.2d 1225, 1228. Furthermore, the object of equitable estoppel is to prevent a party from taking advantage of his own wrong while asserting his strict legal right. Matter of Shaw (1990), 189 Mont. 310, 316, 615 P.2d 910, 915. We cannot adopt Kent’s argument of equitable estoppel. Carolyn has done no wrong giving rise to estoppel. Since the birth of D. J. V., Kent has not performed his legal responsibility as a parent. Equitable estoppel is unavailable to Kent in this case. We affirm the District Court order.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and WEBER concur.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    CAROL THOMAS HARRISON, Plaintiff and Appellant, v. JAMES EDWARD CHANCE, Defendant and Respondent.
    No. 90-073.
    Submitted on Briefs June 14, 1990.
    Decided Aug. 20, 1990.
    797 P.2d 200.

      Rex Palmer, Attys., Inc. Missoula, for plaintiff and appellant.
    Samuel M. Warren, Worden, Thane & Haines, Missoula, for defendant and respondent.
    David Rusoff, Montana Human Rights Com’n, Helena, for amicus curiae.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellant Carol Harrison appeals an order of the Fourth Judicial District Court, Ravalli County, granting summary judgment to respondent James Chance on the ground that the Human Rights Commission provides the exclusive remedy for her claim of sexual harassment against her employer. Harrison also appeals the District Court’s award of costs to the respondent and the court’s refusal to impose Rule 11, M.R.Civ.P., sanctions. We affirm with a minor exception.

ISSUES

1. Did the District Court err in granting the respondent summary judgment on the grounds that the exclusive remedy provision of the Montana Human Rights Act, § 49-2-509(7), MCA, requires the appellant to pursue her sexual harassment claim through the Human Rights Commission rather than filing a complaint in district court?

2. Did the District Court err in holding that the exclusive remedy provision of § 49-2-509(7), MCA, applied to the appellant’s claim even though the acts complained of pre-dated passage of provision?

3. Did the District Court err in not holding that application of the Montana Human Rights Act’s exclusive remedy provision and 180-day statute of limitations unconstitutionally deprived the appellant of her rights to contract, substantive due process, and equal protection under the Montana and United States Constitutions?

4. Did the District Court err in refusing to sanction the respondent under Rule 11, M.R.Civ.P., for including non-compensable expenses in his memorandum of costs?

5. Did the District Court err in awarding the respondent the cost of taking the appellant’s deposition?

FACTS

Respondent Chance employed appellant Harrison from September 1986 to March 1987 as a horse trainer. Harrison alleges that during her employment, Chance repeatedly made unwelcome sexual advances culminating in a demand that she either “put out or get out.” Harrison responded to the ultimatum by resigning and filing a tort action against Chance in the Fourth Judicial District Court. The District Court, however, granted Chance’s motion for summary judgment reasoning that under § 49-2-509(7), MCA, proceedings before the Montana Human Rights Commission provided the exclusive remedy for actions based on sexual harassment. The court also awarded the respondent damages and refused the appellant’s motion for Rule 11, M.R.Civ.P., sanctions against the respondent. Harrison now appeals those orders.

THE EXCLUSIVE REMEDY

Did the District Court err in granting the respondent summary judgment on the grounds that the exclusive remedy provision of the Montana Human Rights Act, § 49-2-509(7), MCA, requires the appellant to pursue her sexual harassment claim through the Human Rights Commission rather than filing a complaint in district court?

Summary judgment may be granted when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. Unlike most summary judgment appeals, the question here is not whether there is an issue of fact; the question is whether Chance is entitled to judgment as a matter of law. Harrison argues that he is not for a number of interrelated reasons. To simplify discussion, we will consider each reason separately.

Drinkwalter v. Shipton Supply Co., Inc.

The appellant relies on Drinkwalter v. Shipton Supply Co., Inc. (1987), 225 Mont. 380, 732 P.2d 1335, in arguing that the Montana Human Rights Act does not provide the exclusive remedy for sexually discriminatory acts in the work place. Like Harrison, the plaintiff in Drinkwalter chose to file a district court action alleging several torts based on sexual harassment by her employer rather than filing with the Human Rights Commission. This Court held that, because the legislature had not indicated a clear intent to abolish other common law remedies, the Human Rights Commission did not provide the exclusive remedy for sexual harassment. Drinkwalter, 225 Mont. at 384, 732 P.2d at 1338.

We do not agree that Drinkwalter is controlling; a 1987 amendment to the Human Rights Act legislatively overruled Drinkwalter. At the time Drinkwalter was decided, the Montana Human Rights Act did not contain the exclusive remedy provision of § 49-2-509(7), MCA. During hearings before the Senate Judiciary Committee to consider various amendments to the Human Rights Act, LeRoy H. Schramm, Chief Legal Counsel of the Montana University System, proposed an additional amendment based on the following rationale:

“On February 23, 1987, the Montana Supreme Court decided the case of Drinkwalter v. Shipton. Under the holding of that case, persons alleging acts that violate the discrimination provisions of the Human Rights Act and the Governmental Code of Fair Practices need no longer vindicate their rights under the provisions of these acts. Rather, they are allowed to completely bypass the administrative procedures set up by statute and go directly to court alleging tort theories of recovery grounded on the individual dignities clause of the constitution. This amendment would make clear that the statutory procedures for discrimination are exclusive remedies and cannot be bypassed.”

Hearing on House Bill 393 Before the Senate Judiciary Committee, 50th Legislature, (March 20, 1987), Exhibit No. 3. The 1987 Legislature adopted the proposed amendment without change or comment as § 49-2-509(7), MCA. It reads:

“The provisions of this chapter [§§ 49-2-101 through -601, MCA] establish the exclusive remedy for acts constituting an alleged violation of this chapter, including acts that may otherwise also constitute a violation of the discrimination provisions of Article II, section 4, of the Montana constitution or 49-1-102. No other claim or request for relief based upon such acts may be entertained by a district court other than by the procedures specified in this chapter.”

While it is not clear that the legislature adopted Chief Counsel Schramm’s rationale, the passage of the exclusive remedy provision so close in the wake of Drinkwalter and the plain language of the provision indicate that the legislature intended the procedures of the Human Rights Commission provide the exclusive remedy for discrimination in employment.

Harassment vs. Discrimination

Harrison argues that her claim does not fall under the Human Rights Act because Chance’s alleged acts were sexual harassment, not sexual discrimination. The appellant correctly points out that in Drinkwalter this Court stated in dicta that sexual harassment is not sexual discrimination subject to the Human Rights Act. Drinkwalter, 225 Mont. at 385, 732 P.2d at 1339. The current authority, however, overwhelmingly supports the opposite conclusion.

The Human Rights Commission itself defines sexual harassment as sexual discrimination. In the construction of a statute, this Court gives deference to the interpretations of the agency charged with its administration. State v. Midland Materials Co. (1983), 204 Mont. 65, 70, 662 P.2d 1322, 1325. The Commission has explicitly adopted the federal Guidelines on Sexual Discrimination promulgated by the United States Equal Employment Opportunity Commission. A.R.M. 24.9.1407. Those guidelines provide:

“Harassment on the basis of sex is a violation of § 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

29 C.F.R. § 1604.11(a).

Other jurisdictions’ interpretations of laws similar to Montana’s Human Rights Act also provide persuasive evidence that sexual harassment is sexual discrimination. Because the Montana Human Rights Act was closely modeled after Title VII, reference to federal case law is both appropriate and helpful in construing the Montana Human Rights Act. Johnson v. Bozeman School Dist. No. 7 (1987), 226 Mont. 134, 139, 734 P.2d 209, 212. The United States Supreme Court holds that under Title VII,

“Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”

Meritor Savings Bank, FSB v. Vinson (1986), 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49, 58. Furthermore, every state considering the issue, as well as the District of Columbia, have reached the same conclusion in construing their human rights acts. Holien v. Sears, Roebuck and Co. (1984), 298 Or. 76, 689 P.2d 1292, 1299; Howard Univ. v. Best (D.C. App. 1984), 484 A.2d 958, 978; Continental Can Co., Inc. v. State (Minn. 1980), 297 N.W.2d 241, 249; see also Glasgow v. Georgia-Pac. Corp. (1985), 103 Wash. 2d 401, 693 P.2d 708, 712.

The reason behind this rule is apparent. When sexual harassment is directed at an employee solely because of gender, the employee is faced with a working environment fundamentally different from that faced by an employee of the opposite gender. Continental Can Co., 297 N.W.2d at 248. That difference constitutes sexual discrimination in employment. We hold that sexual harassment is sexual discrimination under the Montana Human Rights. Act.

The Bisexual Exception

Harrison argues that Chance’s acts fall under an exception to the general rule that sexual harassment is sexual discrimination and therefore, are not subject to the Human Rights Act. A number of federal courts have noted that a bisexual supervisor who has harassed both male and female employees is not liable for sexual discrimination. Although the supervisor may have committed a variety of torts, as an equal opportunity lecher, the supervisor has not violated Title VII. See Henson v. City of Dundee (11th Cir. 1982), 682 F.2d 897, 904; Barnes v. Costle (D.C. Cir. 1977), 561 F.2d 983, 990, n. 55. Harrison argues that Chance did not discriminate on the basis of gender because he made sexual advances to both her and her son.

The parties’ primary contention is whether the allegation of bisexual harassment was properly before the District Court on summary judgment. Uniform District Court Rule 4(a) states in part, “When any motion is filed making reference to discovery, the party filing the motion shall submit with the motion relevant unfiled documents.” (Emphasis added.) While the parties debate the meaning of “filing” and “relevant documents,” we do not reach those issues. Whatever is filed and however the filing is accomplished, it must precede the summary judgment hearing. See O’Neill v. State (1987), 225 Mont. 364, 366, 732 P.2d 1330, 1331.

The record indicates that the appellant failed to raise the bisexual-harassment theory until after the District Court issued its order granting summary judgment. The complaint contains no charge that Chance harassed her son. The appellant’s reply to the respondent’s motion for summary judgment includes one sentence vaguely alluding to bisexual harassment, but makes no use of the allegation. The bisexual harassment theory appears for the first time in the appellant’s proposed findings of fact and conclusions of law. The record shows that that document was received on October 20, 1989, two days after the District Court signed the summary judgment order. Because the issue was not presented, the District Court made no error in failing to consider the issue of bisexual harassment.

Separate Cause of Action

Finally, Harrison argues that her claim is not limited to the Human Rights Commission because, in addition to sexual harassment, Chance committed a variety of torts against her which provide grounds for her cause of action in district court. Again, her authority is Drinkwalter which allowed the plaintiff to bring tort action based on sexual harassment rather than filing a complaint with the Human Rights Commission. Specifically, Harrison alleges that Chance’s conduct amounted to tortious battery, intentional infliction of emotional distress, the tort of outrage, wrongful discharge, and breach of the implied covenant of good faith and fair dealing.

It may be that the alleged acts provide grounds for these and other tort claims. However, the gravamen of the appellant’s claim is sexual harassment. Her claim of battery is based on an allegation that Chance forcefully kissed her against her will. The intentional infliction of emotional distress and outrage arise from charges that Chance repeatedly confronted Harrison with sexually explicit innuendos and offers. Likewise, the theories of wrongful discharge and breach of the implied covenant of good faith and fair dealing are based on Harrison’s allegations that Chance’s constant sexual harassment made her working conditions so intolerable that she was forced to resign.

As in this case, any claim based on sexual harassment can be framed in terms of numerous tort theories. The legislature expressed its intent that the Commission provide the exclusive remedy for illegal discrimination when it enacted subsection (7) of § 49-2-509, MCA. To allow such recharacterization of what is at heart a sexual discrimination claim, would be to eviscerate the mandate of the Human Rights Commission. The District Court did not err in holding that the Human Rights Commission provided the exclusive remedy for the appellant’s claim.

RETROACTIVE APPLICATION

Did the District Court err in holding that the exclusive remedy provision of § 49-2-509(7), MCA, applied to the appellant’s claim even though the acts complained of pre-dated passage of the provision?

Harrison argues that the application of the exclusive remedy provision to her claim violates § 1-2-109, MCA, which provides that no law is retroactive unless expressly declared so by the legislature. The alleged acts occurred between September 1986 when she was hired and March 17, 1987, when she resigned thereby pre-dating enactment of § 49-2-509(7), MCA, on April 16, 1987.

Again we disagree. The legislature provided that the 1987 amendments to the Human Rights Act, including the exclusive remedy provision, would apply to all cases not settled before the time' of enactment.

“This act applies to cases pending before the commission for human rights on the effective date of this act and to cases filed with the commission for human rights on or after the effective date of this act.” Act approved April 16,1987, ch. 511, § 4,1987 Mont. Laws 1240, 1243. Harrison filed her complaint on September 28, 1987, six months after the April 16, 1987, effective date of the statute. Although Harrison filed in District Court, we have already determined that she should have filed with the Human Rights Commission. The applicability section of the 1987 amendments, therefore, applies to her claim and brings it under the exclusive remedy provision. If we held otherwise, any discrimination claimant could avoid the exclusive remedy provision through the expedient filing of a tort claim in district court, contrary to the intent of the legislature that the Human Rights Act provide the exclusive remedy for all unadjudicated discrimination claims.

CONSTITUTIONALITY

Did the District Court err in not holding that the application of the Montana Human Rights Act’s exclusive remedy provision and 180-day statute of limitations unconstitutionally deprived the appellant of her rights to contract, substantive due process, and equal protection under the Montana and United States Constitutions?

In the recent case of Romero v. J & J Tire, JMH, Inc. (Mont. 1989), 238 Mont. 146, 777 P.2d 292, this Court held that the exclusive remedy provision of the Montana Human Rights Act did not violate either federal or Montana rights to access to the courts, equal protection, or trial by jury. Harrison now raises several new federal and Montana constitutional issues not covered in Romero.

Right to Contract

Harrison argues that application of the exclusive remedy provision violates her right to freedom from impairment of contract guaranteed by Article 1, Section 10 of the United States Constitution and Article II, Section 31, of the Montana Constitution, by retroactively effecting the terms of her employment contract with the respondent. She relies on Carmichael v. Workers’ Compensation Court (1988), 234 Mont. 410, 415, 763 P.2d 1122, 1126, in asserting that she was vested with a contract right to bring her claim under the laws in effect at the time of her alleged injury. Because Drinkwalter represented the law of Montana at that time, she has a right to bring a tort action with a three-year statute of limitations in district court. Harrison points out that application of the exclusive remedy provision replaces that right to sue in district court with a barren right to bring a claim before the Human Rights Commission. If the Human Rights Act provides her only remedy, it also extinguishes that remedy because its 180-day statute of limitations has already passed. See § 49-2-501(2)(a), MCA.

We agree with the appellant’s analysis of the effect of the statute of limitations, but we disagree with her contention that it is unconstitutional. Unlike the workers’ compensation claimant in Carmichael, Harrison has no vested contract right to application of the laws in effect at the time of her injury. The rights of an injured workers’ compensation claimant are contractual rights. Cadwell v. Bechtel Power Corp. (1987), 225 Mont. 423, 425, 732 P.2d 1352, 1354; see also Carmichael, 234 Mont. at 413, 763 P.2d at 1124. Above, we held that Harrison’s claim is essentially a discrimination claim even though it can be couched in terms of a tort claim. The same reasoning applies here; although Chance’s alleged acts can be termed a breach of an implied employment contract with Harrison, the gravamen of the claim is sexual discrimination. Because the appellant has no vested contract right, application of the exclusive remedy provision of § 49-2-509(7), MCA, does not violate her right to contract.

Substantive Due Process

Harrison next argues that application of the exclusive remedy provision violates her right to due process under Amendment XIV, Section 1 of the United States Constitution and Article II, Section 17, of the Montana Constitution, for the same reasons that it violates her right to contract; the legislature has retroactively extinguished her right to bring a tort action in district court.

Again, we disagree. Freedom from sexual discrimination is a constitutional right in Montana under Article II, Section 4, of the Montana Constitution, but no person has a vested interest in a particular remedy to a violation to that right. See Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 34-35, 776 P.2d 488, 496. The legislature is free to impose reasonable procedural requirements on the available remedies so long as those requirements have a rational basis. See Linder v. Smith (Mont. 1981), [_ Mont. _,] 629 P.2d 1187, 1192, 38 St.Rep. 912, 917. We have already held that the legislature had a rational basis for making the Human Rights Commission the exclusive means of combating illegal discrimination in Montana. Romero, 238 Mont. at 150, 777 P.2d at 295, 46 St.Rep. at 1161. Like any other statute of limitations, the Human Rights Act’s 180-day limitation provides a reasonable means of preventing stale claims and ensuring that claims are filed before essential evidence disappears.

Equal Protection

Harrison’s final constitutional argument is that the exclusive remedy provision violates her right to equal protection under Amendment XIV, Section 1 of the United States Constitution and Article II, Section 4, of the Montana Constitution. She contends that a male employee in the same position would fall under the three-year statute of limitations for torts while she is subject to the 180-day statute of limitations of the Human Rights Act. We find little reasoning and less merit in the appellant’s assertion. Both male and female victims of sexual discrimination in employment have the same rights and are subject to the same procedural requirements of the Montana Human Rights Act.

RULE 11 SANCTIONS

Did the District Court err in refusing to sanction the respondent under Rule 11, M.R.Civ.P., for including non-compensable expenses in his memorandum of costs?

Following dismissal of the appellant’s claim on summary judgment, the respondent submitted a memorandum of costs including the costs of eight depositions, a subpoena, expert witness fees, a psychological evaluation of the appellant, and various court fees. Harrison objected to the memorandum and asked the District Court to sanction Chance under Rule 11, M.R.Civ.P., contending that none of the listed depositions, expert witness, or psychological evaluation were necessary to the summary judgment proceedings. The court refused without comment and signed a memorandum including only court fees and Harrison’s deposition. Harrison now appeals that decision arguing that Chance’s memorandum of costs was a frivolous and abusive litigation practice submitted as a ploy to force Harrison into settlement.

This Court recently set out the appropriate standard in reviewing a district court’s decision on Rule 11 sanctions.

“This Court will give the district courts wide latitude to determine whether the factual circumstances of a particular case amount to frivolous or abusive litigation tactics .... A district court’s findings of fact will be overturned if clearly erroneous. The court’s legal conclusion that the facts constitute a violation of Rule 11 will be reversed if the determination constitutes an abuse of discretion. We will review the case de novo only if the violation is based on the legal sufficiency of a plea or motion.”

D’Agostino v. Swanson (Mont. 1990), [240 Mont. 435,] 784 P.2d 919, 926, 47 St.Rep. 10, 17. The District Court “tasted the flavor of the litigation,” heard the parties’ arguments, and found no need for sanctions. The appellant has raised no new argument which would indicate that the District Court abused its discretion in that decision.

THE AWARD OF COSTS

Did the District Court err in awarding the respondent the cost of taking the appellant’s deposition?

The memorandum of costs approved by the District Court came to $425 including $80 for court fees and $345 for the cost of taking appellant Harrison’s deposition. Harrison now argues that the District Court erred in awarding Chance the cost of her deposition because the deposition was not necessary to its summary judgment decision. This time, we agree.

The law controlling this issue is well settled. This case is not an action requiring an award of costs as a matter of course. See § 25-10-101, MCA. The decision to award costs fell within the discretion of the District Court. See § 25-10-103, MCA. The court is empowered to award costs to the prevailing party on summary judgment and to include the cost of depositions as long as they are reasonable in amount and necessary to the summary judgment. See Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 125, 760 P.2d 57, 64-65.

We do not believe that Harrison’s deposition was necessary to this order. In the summary judgment proceedings, the respondent cited the deposition only to show that Harrison was aware that she could have filed a complaint with the Human Rights Commission and had not done so. Harrison’s knowledge of the administrative procedures does not appear to be a fact necessary to the decision to dismiss. The primary issue was whether she was required to file with the Commission.

Even if notice of the Commission’s procedures was a material fact, Harrison’s deposition provided only redundant authority. Chance also cited the facts contained in the appellant’s response to interrogatories to support his contention. Those facts are basically the same as those contained in the deposition. Chance received those answers to interrogatories in April, 1988— ten months before taking Harrison’s deposition on February 10, 1989. The respondent had no need to rely on the deposition to secure a summary judgment. The cost of Harrison’s deposition is, therefore, disallowed.

EQUITABLE TOLLING

In Erickson v. Croft (1988), 233 Mont. 146, 760 P.2d 706, this Court looked favorably upon the doctrine of equitable tolling. Under that doctrine, the statute of limitations may be tolled when a party reasonably and in good faith pursues one of several possible legal remedies and the claimant meets three criteria:

“(1) timely notice to the defendant within the applicable statute of limitations in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim.”

Erickson, 233 Mont. at 150-51, 760 P.2d at 708. In Erickson, we found no need to adopt equitable tolling because the appellant failed to meet the first criteria; the first claim did not give adequate notice of the second claim. Erickson, 233 Mont. at 152, 760 P.2d at 709.

Under the facts of this case, the doctrine of equitable tolling may be appropriate if Harrison refiles her claim with the Human Rights Commission. Unlike Erickson, here the District Court claim may give Chance adequate notice of a claim before the Commission. Furthermore, in filing with the District Court, the appellant appears to have relied reasonably and in good faith upon this Court’s holding in Drinkwalter. As a case of first impression holding that the legislature overruled Drinkwalter, this case should not prevent the appellant from having her substantive claims heard by the Human Rights Commission.

The cost of Harrison’s deposition is disallowed. The summary judgment is affirmed.

JUSTICES BARZ, McDONOUGH and WEBER concur.


author: JUSTICE WEBER JUSTICE HUNT,

text:
    HARLEY HOVEN, Estate of Donna Hoven, and Hoven Construction Co., a Montana corporation, Plaintiffs and Appellants, v. FIRST BANK (N.A.) — BILLINGS, a national banking association, and FBS Credit Services, Inc. a Minnesota corporation, defendants and Respondents. FIRST BANK (N.A.) — BILLINGS, a national banking association, Counterclaimant, v. HARLEY HOVEN, Estate of Donna Hoven, and Hoven Construction Co., a Montana corporation, Counterclaim Defendants.
    No. 90-046.
    Submitted On Briefs May 30, 1990.
    Decided Aug. 23, 1990.
    As Modified on Denial of Rehearing Sept. 24, 1990.
    797 P.2d 915.

      James P. Murphy, Billings, for plaintiffs and appellants.
    Stephen D. Bell and Charles W. Hingle, Dorsey & Whitney, Billings, Keith Strong, Dorsey & Whitney, Great Falls, defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

In the District Court for the Thirteenth Judicial District, Yellowstone County, plaintiffs Donna Hoven, for whom the estate of Donna Hoven has been substituted, and Harley Hoven, her husband, and Hoven Construction Company (Hoven Construction), all collectively referred to as Hovens, appeal from the Order granting the summary judgment motion of the defendants, First Bank (N.A.) — Billings and FBS Credit Services, Inc., servicing agent for First Bank, together referred to as Bank. We affirm.

The sole issue for our review is whether economic duress is a defense to the signing of the 1985 and 1986 Agreements?

The final pre-trial order sets forth the following agreed facts: Hoven Construction is a Montana corporation with its principal place of business in Laurel, Montana. Its sole stockholders were Harley and Donna Hoven.

Hoven Construction began doing business with Midland National Bank (Midland) in May, 1971. Midland later changed its name to First Bank (N.A.) — Billings. Over the years, Hoven Construction became one of the largest utility and excavation contractors in the Billings area. Although the company did various kinds of excavation, the bulk of its work was the installation or replacement of water and sewer lines in the city of Billings and other cities in Montana. Harley Hoven did all of the bidding for the jobs and spent most of his time working on the jobs himself.

In the spring of 1985, the Hovens were in debt to the Bank in the amount of $885,798.29, plus interest. On May 17, 1985, the Hovens executed and signed a “Workout Agreement” (the 1985 Agreement), three promissory notes, two Montana Trust Indentures and two mortgages with the Bank. The pertinent parts of the 1985 Agreement stated:

“D. The total outstanding balance owing Bank on 5/17/85.1985, is $885.798.24. plus interest. Borrower warrants, represents and acknowledges that it has no defenses to payment of, nor any right to set off against, all or any of the foregoing sums nor any counterclaims or other actions against the Bank of any kind whatsoever.
“E. Borrower acknowledges that said debt is in default and wishes to repay the principal and interest owing Bank according to the terms stated herein.
“22. Borrower hereby, and for its successors and assigns, releases, acquits and forever discharges Bank and its agents, servants, successors, heirs, executors, administrators, officers, directors, employees, and attorneys, and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever which the Borrower now has or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen damages and consequences thereof resulting from any action or inaction concerning the transactions between Borrower and Bank.”

In March of 1986, FBS Credit Services, Inc. handled the Hovens’ account as servicing agent for the Bank. Martin Moss of FBS Credit was the officer primarily responsible for the Hovens’ account. Both the Bank and FBS Credit are a part of First Bank System, Inc. This is the end of our summary of the agreed statement of facts.

In addition to admitted default, Hoven Construction acknowledged in paragraph F of the 1986 Agreement that it breached its contract by failing to apply all receivables to its debt. Specifically, Hoven Construction failed to remit to the Bank the sum of $118,118.59 that it had collected, in violation of the Bank’s secured interest in Hoven Construction accounts receivable.

Hovens signed a second agreement with the Bank on May 9,1986 (the 1986 Agreement). Relevant portions of the 1986 Agreement are:

“B. Borrower acknowledges that the operating line of credit note matured April 7, 1986, and had to be renewed. The real estate note matured April 17, 1986, and is in default. Borrower acknowledges that the Bank desires to be paid in full for all amounts due and owing under said notes, and Borrower enters into this Agreement for the purpose of paying said notes in full according to the terms and conditions of this Agreement.
“D. The total outstanding principal balances owing Bank according to the terms of the promissory notes described above on May 9,1986, is $885,448.39, plus interest.
“F. Borrower acknowledges that, according to the terms and conditions of the existing Agreement between the parties herein, Borrower was required to apply all receivables from the City of Billings contract on the indebtedness at the Bank, but despite this obligation of Borrower, Borrower failed to apply the sum of $118,118.59, dated March 28,1986.
“6. Borrower agrees to retain and consult a qualified financial advisor, preferably a certified public accountant, for the purpose of consultation and guidance regarding the monetary affairs of the business, including but not limited to, matters concerning income and expenditures, control of overhead, and budgetary projections.
“20. NO DEFENSE. THE BORROWER WARRANTS, REPRESENTS AND ACKNOWLEDGES THAT THEY HAVE NO DEFENSES TO PAYMENT OF, NOR ANY RIGHT TO SET OFF AGAINST, ALL OR ANY OF THE OBLIGATIONS TO BANK SET FORTH IN THIS AGREEMENT AND THE NOTE OR NOTES EXECUTED PRIOR OR PURSUANT HERETO, NOR ANY COUNTER CLAIMS OR OTHER ACTIONS AGAINST BANK OF ANY KIND WHATSOEVER, EXCEPTING THE TRANSACTION REGARDING THE WOODLAND HILLS SUBDIVISION. BORROWER ACKNOWLEDGES THAT THE DEBTS EVIDENCED BY EXHIBITS ‘A’, ‘B’, ‘C’ WILL BE EXTENDED ONLY TO OCTOBER 1, 1986, AT WHICH TIME ALL SUMS OWED ARE DUE AND PAYABLE, INCLUDING NEW MONEYS ADVANCED BETWEEN THE DATE OF THIS OR A SUBSEQUENT AGREEMENT, AND THE END OF THE BUDGET.”

As above mentioned, all debts were to be extended only to October 1, 1986. Hoven Construction ceased business operations at the end of September, 1986. On February 11,1987, the Hovens filed an action in the United States District Court for the District of Montana which alleged breach of the covenant of good faith and fair dealing, breach of fiduciary duty, misrepresentation and fraud and tortious interference with contracts by the Bank. That action was dismissed without prejudice on April 28, 1987, for the reason that the Federal Court lacked subject matter jurisdiction.

On April 21, 1987, the Bank filed suit in Yellowstone County District Court against the Hovens, seeking recovery on the promissory notes executed by the Hovens, and foreclosure of the mortgages and security instruments. On April 23, 1987, the Hovens filed suit against the Bank, FBS Credit and First Trust Company of Montana. These two cases were consolidated on July 1,1987. The Hovens were designated as the plaintiffs.

On December 14, 1988, the Bank filed its motion for summary judgment asserting that the Bank had been released from all liability under the terms of the 1985 Agreement and the 1986 Agreement. The pertinent response on the part of the Hovens asserted that the releases were obtained through economic duress and were void as against public policy. The Bank filed a joint answer and counterclaim. Following a hearing on the summary judgment motion, on March 9, 1989, the District Court granted the Bank’s motion for summary judgment. The Hovens appeal that decision.

The issue: Whether economic duress is a defense to the signing of the 1985 Agreement and the 1986 Agreement?

Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment and summary judgment is never a substitute for a trial on the merits. Batten v. Watts Cycle and Marine, Inc. (Mont. 1989), [240 Mont. 113,] 783 P.2d 378, 46 St.Rep. 1984.

In this case summary judgment was founded on the legal issue of the release language of the the 1985 and 1986 Agreements. Hovens urge that they were under economic duress when they signed both the 1985 Agreement and the 1986 Agreement. They contend that such economic duress was based upon the impending threat of civil or criminal penalties, including overdraft charges which could result, and the requirement on the part of the Hovens that they pay wages and other obligations with a failure to pay resulting in potential penalties, both civil and criminal. In addition, the Hovens argue that the Bank refused to extend other credit except on the terms set forth in the two agreements, thereby forcing execution by the Hovens. In substance the Hovens contend they had no choice but to sign the agreements, because the failure to sign would have resulted in a refusal on the part of the Bank to make farther loans and foreclosure by the Bank.

The Bank contends that the releases are clear and unambiguous in terms. The Bank argues that the Hovens did not suffer from any legally recognized duress at the time they signed the two agreements. The Bank contends there is a factual failure to show economic duress. The Bank contends that this case is similar to Aldrich & Co. v. Donovan (1989), 238 Mont. 431, 778 P.2d 397. The Bank argues that Donovan was under similar pressure to the Hovens in this case — he was pressured by his need for further credit, not by any duress imposed by the lender. That was held not to be a basis for a claim of economic duress.

In its Memorandum in support of summary judgment, the District Court considered various theories. The District Court considered Sprunk v. First Bank Western Montana Missoula (1987), 228 Mont. 168, 741 P.2d 766, as the closest factual case to the present case. It pointed out that under Sprunk a release could be set aside if it was obtained fraudulently or without adequate consideration. However, the District Court disposed of that theory by pointing out that the Hovens failed to raise a genuine issue of material fact because they failed to set forth facts establishing fraud or inadequacy of consideration.

The District Court next considered the theory of economic duress. It referred to 79 ALR 3d, § 2(a) at 603, as setting forth the three elements of economic duress or compulsion; a (1) wrongful act that; (2) overcomes the will of a person; (3) who has no adequate legal remedy to protect his interests. The District Court pointed out that the Hovens argued that they were under economic duress because they had overdrawn their checking account, had borrowed up to their credit limit, and had payroll and other obligations to meet. The District Court concluded that the Hovens had failed to provide any facts to satisfy the elements of economic duress. The Hovens had failed to set forth facts establishing a wrongful act on the part of the Bank in requiring the plaintiffs to sign the agreements. It pointed out that economic duress is not established merely by proof that consent was secured by the pressure of financial circumstances. The District Court concluded that the defense of economic duress or undue influence could not be made under the facts of this case.

We agree with the conclusions of the District Corut on the economic duress theory. The Aldrich case cited above was decided by this Court subsequent to the summary judgment decision by the District Court. The statements by this Court in Aldrich are peculiarly pertinent here:

“A claim of economic duress requires a showing that the contract at issue was made under circumstances evincing a lack of free will on the part of the contracting parties. It is not sufficient to show that consent was secured by the pressure of financial circumstances, or that one of the parties merely insisted on its legal right____The note at issue here evidenced an existing debt owed by Donovan to Aldrich. Aldrich did not force Donovan to incur the debt. Aldrich had a legal right to require security of some sort before extending farther credit to Donovan. He was therefore ‘pressured’ only by his need for further credit, not by any duress imposed by Aldrich. Aldrich was therefore entitled to summary judgment on the note.” (Citations omitted).

Aldrich, 778 P.2d at 401. In his affidavit in opposition to the Bank’s summary judgment motion, Mr. Hoven set forth the factual theory upon which he based his claim of economic duress. In substance, the facts established by the Hovens make it clear that the duress suffered by them was the result of their own financial circumstances. As stated in the above quote, it is not sufficient to show that consent was secured by the pressure of financial circumstances.

We conclude that the District Court was correct in its determination that the Hovens had failed to set forth facts which establish economic duress as a defense to the releases contained in the 1985 Agreement and the 1986 Agreement. We therefore hold that the Hovens have failed to establish that economic duress was present in the signing of the 1985 and 1986 Agreements. As a result, we affirm the summary judgment ruling in favor of the Bank by the District Court.

We will briefly discuss other issues raised by the Hovens in their briefs. The Hovens argue that there was a fiduciary relationship which should result in a different decision. The Bank disputed the presence of the fiduciary relationship. The District Court concluded that the Hovens had failed to present facts showing such a fiduciary relationship. After a review of the record, we conclude that the facts presented do not demonstrate a fiduciary relationship and the issue was properly disposed of by summary judgment.

The Hovens argued that the release provisions of the two agreements were not enforceable because of the provisions of § 28-2-702, MCA. That code section in substance provides that a contract which exempts anyone from responsibility from his own fraud, or willful injury, or for a violation of law, is against the policy of law. The Hovens failed to present facts bringing that statute into play. By its terms the statute therefore does not apply to existing claims. We conclude there is no proper basis for the application of § 28-2-702, MCA, to this case.

The Hovens filed with this Court a motion to strike the 1985 Agreement because the Bank failed to attach it to its briefs on the original motion for summary judgment, claiming that, as a result, the 1985 Agreement was not a part of the record before the District Court. Hoven admits he was aware of the provisions of the agreement. The Bank made reference to the agreement in its brief but did not initially attach a copy. In a similar manner Hoven Construction referred to the agreement in its pleadings. The Bank provided a copy of the agreement to the District Court prior to the hearing on the motion for summary judgment. Hoven did not file a motion to strike the 1985 Agreement or otherwise object. We conclude that Hoven waived any right to object to the absence of the agreement.

The Hovens contend that the releases are not clear and unambiguous and therefore are not enforceable. In addition the Hovens contend that the 1986 release was a novation of the 1985 release. Neither of those issues was presented to the District Court. We therefore decline to address either issue on appeal because of the absence of presentation to the District Court. See Wyman v. DuBray Land Realty Co. (1988), 231 Mont. 294, 752 P.2d 196; Miller v. Catholic Diocese of Great Falls (1986), 224 Mont. 113, 728 P.2d 794.

We affirm the summary judgment.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.

JUSTICE HUNT,

dissenting:

I dissent. It need hardly be said that summary judgment is inappropriate when a case presents disputed issues of material fact. In this case, the Hovens allege that they were forced to sign agreements in which they forewent legal rights and defenses under the threat of civil and criminal penalties. By granting summary judgment, the majority, and the District Court before it, concludes as a matter of law that the threat of civil and criminal penalties does not constitute economic duress. Under the circumstances alleged in this case, I cannot agree. The Hovens have raised material issues of fact which should be presented to a jury for its consideration. They should not be disposed of by the District Court on a motion for summary judgment.

Once again, the majority has approved the trend among the district courts in this state to sit as fact finders in motions for summary judgment, thereby denying plaintiffs their rightful day in court. What is the old saying? If I had a nickel for every dissent I’ve written protesting this trend....


author: JUSTICE HARRISON

text:
    LINDEY’S INC., a Minnesota corporation, Plaintiff and Appellant, v. PROFESSIONAL CONSULTANTS, INC., a Montana corporation, David Schurian, and the Estate of William C. Forrest, Deceased, Defendants and Respondents.
    No. 90-084.
    Submitted on Briefs June 20, 1990.
    Decided Aug. 23, 1990.
    797 P.2d 920.

      Paul Neal Cooley, Skelton & Cooley, Missoula, for plaintiff and appellant.
    John Tabaracci, Sullivan & Baldassin, Missoula, Jerome T. Loendorf, Harrison, Loendorf & Poston, Helena, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

The Fourth Judicial District Court in Missoula County denied plaintiff Lindey’s Incorporated’s motions to file second and third amended complaints and granted summary judgment in favor of defendant Estate of Forrest. Lindey’s, Inc. now appeals the District Court’s decision. We affirm.

Two issues are presented for review:

1. Did the District Court err in denying Lindey’s various motions to amend, to add experts, and to lengthen discovery schedules?
2. Did the District Court err in determining that Lindey’s breach of warranty claim against the Estate of Forrest is barred by § 28-2-904, MCA?

In the late 1970’s, Lindey’s Inc. (Lindey’s) was looking for property in Montana in order to open a restaurant. Lewis W. Lindemer is the sole stockholder and president of Lindey’s. Lindemer was president and a member of the board of directors of Lindey’s in 1978 when the corporation bought lots 1 and 3 of Seeley Lake Shore Sites from William C. Forrest. At closing for the sale of lots 1 and 3, at Lindemer’s request, Forrest gave Lindemer a letter stating that he would employ a surveyor to have the property restaked according to the plat on file in Missoula County.

On the day of closing, the realtor called defendant Professional Consultants, Inc. (PCI) and arranged for a survey of the property. Defendant David Schurian, an employee and shareholder of PCI, performed the survey including a survey of the common boundary lines between lots 1 and 2.

Over the years, a dispute developed between Lindey’s and its neighbor, Pat Goodover, concerning the common boundary between lots 1 and 2. Various surveys of the boundary were conducted. Finally, in 1984 Goodover filed suit against Lindey’s and the Estate of Forrest and a trial was held in 1987. The trial resulted in PCI’s survey being adjudged incorrect. On appeal the trial court was affirmed in Goodover v. Lindey’s, Inc. (1988), 232 Mont. 302, 757 P.2d 1290. On October 25, 1988, Lindey’s filed a complaint against Schurian and PCI for negligent surveying and breach of warranty and against the Estate of Forrest for breach of warranty. Lindey’s claims that Forrest represented to Lindey’s that the boundaries of lots 1 and 3 extend along certain general lines and that Forrest either actually or impliedly warranted that the actual lot lines would be in accordance with the survey. Lindey’s asserts that Schurian and PCI, acting as agents of Forrest, made a negligent survey and, based on this survey, Lindey’s made improvements within the described boundaries. Lindey’s further asserts that it is entitled to damages resulting from the loss of value of improvements made and required to be removed by the judgment in Goodover v. Lindey’s, the costs and damages awarded by the judgment, attorney’s fees in defending and appealing the judgment, the costs of prosecuting this action and loss of the value of land not purchased.

On February 10, 1989, all parties to this action stipulated and agreed to deadlines for various activities, pursuant to Rule 16(b), M.R.Civ.P. The trial court ordered that the stipulation would govern the proceedings. The stipulation provided that all amendments to pleadings must be filed by July 1, 1989.

Lindey’s filed its initial motion to amend on April 27, 1989. With none of the defendants opposing the motion, the trial court set a hearing on the matter for June 15, 1989. The June 15 hearing was continued without date. Therefore, it was not until the pretrial conference of August 8, 1989 that the trial court heard Lindey’s first motion to amend. Since three months had passed from the time of fifing at the pretrial conference, all defendants now opposed the motion as not being timely. At the pretrial conference the District Court ordered Lindey’s to file the first amended complaint and required Lindey’s to provide the court with a written order allowing the filing of the first amended complaint by August 17,1989. Because Lindey’s failed to provide the court with such order, the court, on August 23,1989, issued another order denying Lindey’s motion to file the first amended complaint.

Undaunted, Lindey’s filed motions to file a second and third amended complaint. The second amended complaint is dated August 22, 1989 and the third amended complaint is dated August 29, 1989. Lindey’s did not withdraw its previous motion before attempting to file its third amended complaint, thus forcing defendants to oppose both motions to amend. On August 29, 1989 Lindey’s also filed a motion to extend the trial schedule in order to allow Lindey’s more time to add and name expert witnesses, file amendments to the complaint, and complete discovery. The Estate of Forrest had filed a motion for summary judgment on August 10,1989. PCI and Schurian filed a motion for summary judgment on September 29, 1989.

Following hearings on both motions for summary judgment, both motions to amend, and the motion to modify the scheduling order, the District Court issued its opinion and order. The court granted defendant Estate of Forrest’s motion for summary judgment on the basis that the Estate of Forrest is not vicariously liable for the negligence of an independent contractor and Lindey’s claim for breach of warranty is barred by § 28-2-904, MCA. The court denied the motion of defendants PCI and Schurian for summary judgment, finding that a genuine issue of material fact remained relating to the date of discovery by Lindey’s of its cause of action. The District Court denied all three of Lindey’s motions, stating “The [District] Court does not find good cause required by Mont.R.Civ.P. [16](b) to modify the Scheduling Order, nor does the Court find that justice requires amendment in this case as required by Mont.R.Civ.P. 15(a).” Lindey’s now appeals the District Court’s decision denying its motions to amend the complaint and modify the scheduling order and granting Estate of Forrest’s motion for summary judgment.

Issue 1: Motions to amend, add experts, and lengthen discovery schedules

The District Court summarily disposed of all Lindey’s motions. Regarding the motion to amend, the court stated only that justice does not require the amendments be allowed under Rule 15(a) of M.R.Civ.P. Of the motion to modify the scheduling order to allow experts to be added and discovery lengthened, the court noted there was no good cause to grant the motion as required by Ride 16(b), M.R.Civ.P.

Lindey’s contends that, although it failed to meet time requirements imposed by the District Court, its amendment to add experts, extend discovery and amend pleadings should be granted in the interest of justice in the absence of substantial prejudice to the other parties. Rule 15(a), M.R.Civ.P., covering amendments reads in pertinent part as follows:

“[A] party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”

The decision to grant or deny a motion to amend lies within a the discretion of the trial court. Foman v. Davis (1962), 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226. The District Court’s decision will be reversed only for an abuse of discretion. Roberts v. Arizona Bd. of Regents (9th Cir. 1982), 661 F.2d 796, 798; Mende v. Dun & Bradstreet, Inc. (9th Cir. 1982), 670 F.2d 129, 131.

As this Court has previously noted, Rule 15(a), M.R.Civ.P., provides for liberal amendment of pleadings but does not require amendments to be allowed in all instances. Fry v. Heble (1981), 191 Mont. 272, 274, 623 P.2d 963, 964. While the rule favors allowing amendments, a trial court is justified in denying a motion for an apparent reason “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments ■previously allowed, undue prejudice to the opposing party by allowance of the amendment, futility of the amendment, etc.” Foman at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226. See also Lien v. Murphy Corp. (1982), 210 Mont. 488, 491, 656 P.2d 804, 806, and Sooy v. Petrolane Steel Gas, Inc. (1985), 218 Mont. 418, 421, 708 P.2d 1014, 1016.

The party seeking to overturn the trial court’s decision must demonstrate that an abuse of discretion occurred. Izaak Walton League of America v. St. Clair (8th Cir. 1974), 497 F.2d 849, 854. In this case, Lindey’s has failed to show that the trial court abused its discretion in failing to allow second and third amended complaints. Almost two months after the deadline for amending pleadings, the trial court, in accordance with Rule 15(a), M.R.Civ.P., granted Lindey’s first motion to file an amended complaint. When Lindey’s failed to file the amended complaint within the extended time granted, the trial court was well within its discretion in not granting Lindey’s motions to file second and third amended complaints. Had the trial court granted Lindey’s motion, all defendants would have been substantially prejudiced and the trial unduly delayed. Granting the amendments would have required additional discovery and time to determine the sufficiency of the claims alleged in the amended complaints, all costing the defendants additional time, energy and money to resolve the case.

Lindey’s contends that the trial court erred in denying its motion to extend discovery and add experts. The time allowed for discovery and listing expert witnesses was set out in the February 10, 1989 stipulation which the court ordered would govern the proceedings. Rule 16(b), M.R.Civ.P., provides that “A schedule shall not be modified except by leave of the judge upon a showing of good cause.”

Lindey’s maintains that extension of deadlines is necessary in order to add experts and do further discovery. Lindey’s learned on June 21, 1989 at the deposition of its expert witness, that the expert it had retained did not agree with its allegation of professional negligence and would not provide expert testimony. As set out in the scheduling order, deadline for identifying expert witnesses was June 1, 1989, but Lindey’s did not move for an extension until August 29, 1989, even though it knew two months earlier that the expert it had retained did not agree with its position on professional negligence.

Clearly, Lindey’s failed to meet the threshold showing of good cause. Lindey’s motion was not timely and appears to be the result of Lindey’s procrastination and failure to act diligently. The District Court did not err in finding there was not good cause to amend the scheduling order. This Court will not disturb the District Court’s finding on appeal.

Issue 2: Summary Judgment

The District Court granted Estate of Forrest’s motion for summary judgment on the basis that the Estate is not vicariously liable for the negligence of the surveyor defendants, and that the breach of warranty claim is barred by § 28-2-904, MCA. Lindey’s does not dispute that part of the District Court’s decision finding the Estate of Forrest was not vicariously liable for the acts of its independent contractor, the surveyors. However, Lindey’s contends the District Court erred in granting summary judgment on the breach of warranty claim.

Summary judgment was properly granted pursuant to Rule 56(c), M.R.Civ.P., which states that where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law. The party requesting summary judgment has the burden of demonstrating that no issues of material fact exist, and, once this burden is met, the responding party assumes the burden to show that there are material facts which will require trial. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510-11. If no material facts are at issue, the district court is then able to determine whether the moving party is entitled to judgment as a matter of law. Id.

Lindey’s complaint alleges that “Defendant warranted that the actual lot lines would be in accordance with the survey” and that the Estate of Forrest breached this warranty.

The District Court found Lindey’s breach of warranty claims are barred by § 28-2-904, MCA, which provides:

“28-2-904. Effect of written contract on oral agreements. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.”

Lindey’s and Forrest executed a written contract for the purchase of lots 1 and 3 of Seeley Lake Shore Sites. Contemporaneously with the contract, Forrest, at Lindemer’s request, wrote the following letter:

October 19, 1978

Lindey’s, Inc.

3610 North Snelling Avenue

St. Paul, Minnesota 55112

Gentlemen:

The undersigned, William C. Forrest, agrees that, having sold you Lots 1 and 3 of Seeley Lake Shore Sites at Seeley Lake in Missoula County, Montana, he will employ a surveyor to have the property restaked according to the plat on file in Missoula County; that the stakes should be set at all corners shown on the plat; and that the undersigned will pay the surveyor.

Very truly yours,

s/ William C. Forrest

William C. Forrest

WCF/sbs

As the District Court noted, review of these two written documents (the contract and the letter) reveals no warranty by Forrest of the survey or that the lot lines would be in accordance with the survey. Since the alleged warranties were not included in the written instruments constituting the contract between the parties, they were superseded by the written documents pursuant to § 28-2-904, MCA.

This is consistent with our previous holding in Hosch v. Howe, where we quoted with approval Wigmore on Evidence:

“The chief and most satisfactory index is found in the circumstance whether or not the particular element of the alleged extrinsic negotiations is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing presumably the writing was meant to represent all the transactions on that element.”

Hosch v. Howe (1932), 92 Mont. 405, 410-11, 16 P.2d 699, 700. See also Aye v. Fix (1978), 176 Mont. 474, 580 P.2d 97; Merritt v. Merritt (1974), 165 Mont. 172, 526 P.2d 1375; Heckman and Shell v. Wilson (1971), 158 Mont. 47, 487 P.2d 1141.

Here, the survey was dealt with in the writing. Since the survey was mentioned, covered or dealt with in the writing, then presumably the writing was meant to represent all the transactions on that element. Neither the contract nor the October 19 letter from Forrest to Linde/s contains a warranty regarding the survey of the boundary line. We affirm the District Court’s finding that the warranty claim is barred by § 28-2-904, MCA.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT and WEBER concur.


author: JUSTICE McDONOUGH

text:
    WILLIAM R. HILL and CAROL N. HILL, Plaintiffs and Respondents, v. CLAUDE I. BURLINGAME, Chester Lamoreaux, Wayne Kaswork, Department of Fish, Wildlife and Parks of the State of Montana, Defendants and Appellants.
    No. 89-626.
    Submitted on Briefs June 20, 1990.
    Decided Aug. 29, 1990.
    797 P.2d 925.

      W. D. Hutchison, Agency Legal Services Bureau, Helena, for defendants and appellants.
    Edward A. Cummings, Missoula, for plaintiffs and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The defendants Chester Lamoreaux, Wayne Kasworm, and the Montana Department of Fish Wildlife and Parks (FWP) appeal the order of the Twentieth Judicial District Court, Sanders County, denying their motion for summary judgment, and the District Court’s subsequent judgment and verdict awarding the plaintiffs $107,000.00 on their malicious prosecution claim. The claim arose from an acquittal on criminal charges filed by FWP’s warden Lamoreaux for the alleged illegal killing of a grizzly bear by the plaintiffs’ hunting clients. We affirm.

Defendants raise the following issues on appeal:

(1) Did the District Court err in denying the defendants’ motion for summary judgment to dismiss the malicious prosecution claim on the grounds that game wardens are not entitled to prosecutorial immunity?
(2) Did the District Court err in refusing to give the State’s proposed instruction on “advice of counsel”, an affirmative defense to a malicious prosecution claim?

The plaintiff Wilham R. Hill is a self-employed guide and outfitter. While guiding two archery hunters on an elk hunt his hunting party encountered a grizzly bear. The bear had previously been trapped by defendant Kasworm of FWP for study purposes and was released with a broken jaw. Hill and his clients maintain that the bear charged them and that the hunters shot and killed the bear with their bows at close range in self defense. Hill immediately reported the incident to FWP and its game warden, defendant Lamoreaux. Lamoreaux filed and prosecuted criminal charges against Hill’s clients for illegally killing a grizzly and against Hill under the outfitter equal responsibility law. A jury acquitted Hill and his clients on all criminal charges.

Hill filed a claim for malicious prosecution against Lamoreaux and FWP, a negligence claim against Kasworm for allegedly injuring and then releasing the grizzly, and a claim for libel and slander against county attorney Claude Burlingame, among other claims. The plaintiffs settled their claim against defendant Burlingame prior to trial. The State moved for summary judgment on the malicious prosecution claim on the grounds that defendant Lamoreaux was entitled to prosecutorial immunity because he consulted with the county attorney before filing charges against Hill. The District Court denied the motion. At trial the District Court also refused the State’s proposed instruction No. 15 on the affirmative defense of “advice of counsel.” A jury returned a verdict in favor of the plaintiffs in the amount of $107,000.00 on the malicious prosecution claim against FWP and Lamoreaux, and found no liability against defendant Kasworm. The defendants FWP and Lamoreaux now appeal.

First, we note that the State’s contention that Warden Lamoreaux is entitled to “prosecutorial immunity” is without merit. In Orser v. State (1978), 178 Mont. 126, 582 P.2d 1227, we held that a “more limited form of immunity, rather than the absolute immunity which is afforded to prosecutors . . . applies to law enforcement officers, including state game wardens.” Orser, 582 P.2d at 1232. We also noted that “[t]he common law has never granted police officers an absolute and unqualified immunity.” Orser, supra, citing Pierson v. Ray (1967), 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288, 295. The statutory provisions governing the powers and duties of game wardens limit the warden’s role to that of an investigator and enforcer of the fish and game laws; the statutes do not prescribe for the warden to function as a prosecutor. See §§ 87-1-501 through 514, MCA. Thus, prosecutorial immunity does not apply to game wardens.

While a warden is not entitled to prosecutorial immunity, in essence the State is actually arguing that Warden Lamoreaux is entitled to the affirmative defense of “advice of counsel” which may be available to a defendant in a malicious prosecution case. See generally Annotation, Reliance On Advice of Prosecuting Attorney as Defense to Malicious Prosecution Action, 10 A.L.R.2d 1215. The State then alleges that the District Court erred in refusing to give an instruction on the elements of the affirmative defense.

We disagree. In order to warrant an instruction on advice of counsel it is the defendant’s burden to establish a prima facie defense:

“In order for the defendant to avail himself of the defense of advice of counsel, it must appear that he fully and fairly presented to counsel all of the facts within his knowledge. . . . And it is a question of fact for the jury whether the defendant fairly communicated to his counsel all of the facts which he knew or ought to have known, and whether he acted in good faith upon the advise received, where different conclusions may be drawn from the evidence. When the facts in the case, and those laid before the attorney, are all in evidence, the jury may determine whether the statement was full and fair. . . .”

Cornner v. Hamilton (1922), 62 Mont. 239, 244, 204 P. 489, 491. (Citations omitted.) Thus, it is insufficient for the defendant to describe the factual allegations underlying the prosecution and then to testify generally that all such facts were conveyed to the prosecutor. The defendant must specifically testify as to the details of the information conveyed to the prosecutor at that time:

“If the first question was intended ... to elicit the answer that the complaining witness made a full and fair disclosure of the facts, without stating what facts he disclosed, the objection was well taken, for a complaining witness is not permitted to testify that he related all of the facts and circumstances, without stating what they were.”

Beadle v. Harrison (1920), 58 Mont. 606, 612, 194 P. 134, 135. See also Wisniski v. Ogg (1958), 84 Ariz. 372, 329 P.2d 1097, 1099; Crow v. United States (D.Kan. 1987), 659 F.Supp. 556, 575.

In the case at bar, Warden Lamoreaux testified concerning his investigation and what facts he believed might establish the necessary probable cause to charge Hill. Later, he testified concerning his meeting with the prosecutor:

“...We went over the whole evidence. We talked about everything. We went over the whole thing.
“Q: So you told Mr. Burlingame everything that you knew about the case and all about your investigation?
“A: That’s correct.
“Q: Full disclosure of that to Mr. Burlingame?
“A: That’s correct.”

Such testimony is insufficient to warrant an instruction on the defense because Lamoreaux did not testify specifically about the factual details related to the county attorney. Thus the jury was not afforded an opportunity to determine whether full and fair disclosure of the facts of the case was actually made to the county attorney. The State failed to elicit the necessary facts to warrant giving an instruction on advice of counsel, thus the District Court properly refused the State’s proposed instruction on the affirmative defense.

AFFIRMED.

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


author: JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LEE AND REBECCA GIBBS, Husband and Wife, Defendants and Appellants.
    No. 90-109.
    Submitted June 28, 1990.
    Decided Aug. 30, 1990.
    797 P.2d 928.

      Torger S. Oaas, Lewistown, for defendants and appellants.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Craig R. Buehler, Fergus County Atty., Jon A. Oldenburg, Deputy County Atty., Lewistown, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Lee and Rebecca Gibbs each appeal from judgments of conviction against them for violations of the game laws of Montana. The convictions were obtained in the District Court, Tenth Judicial District, Fergus County. As to Lee Gibbs, we affirm the judgment of conviction as to two of the counts and remand one of the same for resentencing. We affirm the conviction of Rebecca Gibbs but remand for resentencing.

In the month of February, 1988, Warden Sergeant Gary E. Burke, of the Montana Department of Fish, Wildlife and Parks, posing as a buyer of animal horns, in an undercover investigation, viewed antlers at the Gibbs residence. On a subsequent date, when Burke returned to the Gibbs residence, Lee Gibbs inquired about purchasing a set of sheep horns the agent had in his truck. Eventually Gibbs agreed to trade his tanning services for two illegal bobcat hides that Burke brought over in exchange for a small set of sheep horns from Burke. Burke picked up the bobcat hides after they were tanned. Rebecca Gibbs told Burke that she had done most of the work on the hides.

On Burke’s first visit to the Gibbs residence, Lee Gibbs had shown him a mountain lion hide which Gibbs said he had caught in a trap line he had set out. Gibbs had shot the mountain lion twice in the side with a pistol. On a later visit by Burke to the Gibbs home, the price of lion hide was discussed and eventually Burke paid Gibbs $300 for the lion hide.

The foregoing are the important facts in regard to this case. Lee Gibbs was charged in the District Court with violations of the game laws in five counts: Count I possession of parts of an unlawfully taken fur-bearing animal (§ 87-3-112, MCA), for the possession of two illegal bobcat pelts; Count II possession of parts of an unlawfully taken game animal (§ 87-3-112, MCA), illegal possession of the head and cape of a bighorn sheep; Count III sale of parts of unlawfully taken game animals (§ 87-3-111, MCA), selling the hide of an unlawfully taken mountain lion for $300; Count IV possession of parts of an unlawfully taken game animal (§ 87-3-112, MCA), having possession of parts of an unlawfully taken mountain lion; and, Count V, a felony, trafficking in body parts of unlawfully taken species (§ 87-3-111(4), MCA), relating to the purchase, sale, possession and transportation of unlawfully taken game animals.

Rebecca Gibbs was charged with the felony count of trafficking in body parts of game animals through accountability, under §§ 87-3-111(4) and 45-2-302, MCA, relating to aiding and encouraging Lee Gibbs in selling, purchasing, possessing and transporting unlawfully taken game animals or parts thereof.

The cases against the two defendants were consolidated for trial. The jury found Rebecca Gibbs guilty as to the charge against her. As to Lee Gibbs, the jury was unable to reach a verdict (a hung jury) on Counts I (possession of illegal bobcat pelts) and II (possession of the head and cape of an illegal bighorn sheep). Lee Gibbs was found guilty by the jury of Count III (selling the mountain Hon for $300), Count IV (illegal possession of the hide of the mountain lion); and, Count V (trafficking in body parts of unlawfully taken species, a felony).

The defendants were sentenced on January 15, 1990. Rebecca Gibbs was sentenced to a fine of $10,000 and a one year term of imprisonment, all of which was suspended on the condition that she have no firearms in her possession during the suspension and that she spend five days in the Fergus County Jail. Lee Gibbs was sentenced on Counts IV and V only, the District Court having declared that Count III constituted a lesser-included offense of Count V. As to Count IV, Lee Gibbs was fined $300 and ordered to serve 30 days in the Fergus County Jail concurrent with time imposed under Count V, and was further ordered to pay restitution in the sum of $500 pursuant to § 87-1-111(1)(b), MCA. As to Count V, the court imposed a fine of $10,000, which was suspended on the condition that the defendant Lee Gibbs obey all the fish and game laws of the state of Montana for the period of his incarceration and he was sentenced to a one year term of imprisonment at the Montana State Prison. All of each of the defendants’ hunting, fishing and trapping privileges were suspended under § 87-1-111, MCA, from December 5, 1989 through and including December 31,1999. The case has come to this Court on appeal from the foregoing judgments and sentences.

There is no doubt that there was sufficient evidence to sustain the convictions on counts found by the jury. The difficulty for us in the case arises, as it did for the District Court, from consideration of the sentences imposed, in the light of the language of the statutes under which the defendants were charged. In passing sentence, the District Court expressed its dismay, saying:

“The statutes concerning the fish and game laws and regulations of Montana are mismatched, inconsistent, and provide inconsistent penalties. They render the hunting, fishing and trapping regulations of this state difficult if not impossible for game wardens to enforce, and make the job of other law enforcement officials difficult. I feel that the laws as they are written render it difficult for citizens of this state to know what those laws and regulations are. It is the feeling of this Court that they need to be redrafted so that they can be understood.
“This case does present some possible grounds for an appeal. The Supreme Court in this case, should the Defendant desire to appeal, may interpret the laws, but they will have difficulty in rendering an opinion which may have general application. I would request and invite them to do so, should they have the opportunity.”

Montana law makes it a misdemeanor to sell, offer to sell, possess, ship or transport a fur-bearing game animal or any part thereof except as permitted by law. Section 87-3-111(1)(3), MCA. The law also provides that any person engaging in the activities prohibited by the misdemeanor statute in furtherance of a “scheme to traffic in the body parts” of unlawfully taken species is a felony. Section 87-3-111(4), MCA. The District Court properly concluded that the misdemeanor portion of the statute was a lesser-included offense of the felony portion, guided by State v. Hankins (1984), 209 Mont. 365, 680 P.2d 958. The District Court also held that under Hankins, the felony crime did not require a scheme to traffic by involving more than one animal. The District Court was uncomfortable with this holding because there is no statutory definition for “trafficking” in game animals.

Because Lee Gibbs was convicted of a felony scheme to traffic in body parts, the District Court concluded that Count III was a lesser-included offense of that felony conviction and so imposed no sentence as to the sale of the mountain lion, charged as a misdemeanor.

With respect to the felony conviction of Count V, however, a problem arises as to the sentence imposed under the statute. Section 87-3-111(4), MCA, provides:

“Any person engaging in the activities prohibited in subsection (1) in furtherance of a scheme to traffic in the body parts of unlawfully taken species is guilty of a felony and shall be punished by a fine of $10,000 or imprisonment in the state prison for a term of 1 year or both.”

The sentence for imprisonment in the foregoing statute does not meet the statutory definition of a “felony” found in § 45-2-101(21), MCA, which states:

“ ‘Felon/ means an offense in which the sentence imposed upon conviction is death or imprisonment in the state prison for any term exceeding 1 year.” (Emphasis ours.)

On the other hand, a “misdemeanor” is defined as follows (§ 45-2-101(36), MCA):

“ ‘Misdemeanor’ means an offense in which the sentence imposed upon conviction is imprisonment in the county jail for any term or a fine, or both, or the sentence imposed is imprisonment in the state prison for any term of one year or less.” (Emphasis supplied.)

Counsel for Lee Gibbs contends that because the jail punishment for the purported felony described in § 87-3-111(4), MCA, does not meet the definition of felony contained in § 45-2-101(21), MCA, the conviction of Lee Gibbs for a felony is improper. The state contends with respect to this argument that the legislature has the right to define crimes, and that moreover the general definitions of felony and misdemeanor under § 45-2-101 are intended to apply only to crimes described in Title 45, from language which appears in the first portion of § 45-2-101. We cannot accept the state’s argument on this point however because of the language in § 45-1-201 which provides:

“Classification of offenses. (1) For the determination of the court’s jurisdiction at the commencement of the action and for the determination of the commencement through the period of limitations, the offense shall be designated a felony or misdemeanor based upon the maximum potential sentence which could be imposed by statute.
“(2) An offense defined by any statute of this state other than this code shall be classified as provided in this section, and the sentence that may be imposed on conviction thereof shall be governed by this title and Title 46.” (Emphasis added.)

Regardless therefore of the statement in § 87-3-111, MCA, that trafficking in game animals is a felony, because the jail sentence for a violation of that statute does not exceed one year, it may not, under the classification rules provided by the legislature, be considered a felony. Although the legislature has the undoubted right to classify crimes, in so doing the legislature is required to follow the rules which it has itself provided for such classification. We therefore determine that because of the imprisonment provision of § 87-3-111(4), MCA, which fixes the imprisonment for a term of one year, and does not provide for a term exceeding one year, the conviction of Lee Gibbs for trafficking in game animals is in fact a misdemeanor. It is necessary therefore that the sentence imposed for the infraction of § 87-3-111(4), MCA, must be remanded to the District Court where a sentence shall be imposed by the District Court, as though the conviction were for a misdemeanor.

The District Court construed the violation of Count V to be a felony, and the violation of Count III a misdemeanor. It therefore held that Lee Gibbs was convicted in Count III of a lesser-included offense of Count V. We have now determined that a violation of Count V is a misdemeanor also. One misdemeanor cannot be a lesser-included offense of another misdemeanor. The District Court is not in error, however. The gravamen of his crime is that he sold a lion hide to Burke for $300. Selling an illegal game animal pelt is a misdemeanor under either §§ 87-3-111(1) or 87-3-111(4), MCA, since we decided in Hankins that trafficking can involve a single animal. Lee Gibbs cannot be convicted of more than one offense because one is included in the other. Section 46-11-502(1), MCA. We uphold the District Court in Gibb’s conviction for a violation of § 87-3-111(4), MCA, and its decision not to convict for the same violation under §87-3-111(1), MCA.

We turn now to the conviction of Lee Gibbs under Count IV. This Count related to the misdemeanor possession of an unlawfully taken fur-bearing animal, the bobcat pelt. Lee Gibbs contends that he was lawfully in possession of the pelt of the bobcat, because it was taken by him in defense of the person of his son whom the bobcat was attacking. Section 87-3-130, MCA, provides that there is no criminal liability for the taking of wildlife otherwise protected by the game laws if the wildlife is molesting or threatening to kill any person. The same statute requires that any person who takes such wildlife in the protection of others notify the Department within 72 hours. Because no notification was given by Lee Gibbs to the Department, the District Court refused to allow the issue of Gibbs’ defense of another person to be submitted to the jury. Gibbs having possessed the bobcat pelt for more than 72 hours, and with no excuse shown, not having reported acquiring the same to the Department, his possession of the pelt after that period became illegal. Thus the issue attempted to be raised by Lee Gibbs, that he shot the bobcat in defense of another person, would have not effect on the eventual outcome, since his possession after the 72 hour period was illegal, regardless of the circumstances under which he obtained the bobcat pelt. The District Court was not in error in refusing to submit to the jury the issue of Gibbs’ defense of another person. His conviction for illegal possession of the pelt of a game animal is affirmed.

We next consider the appeal of Rebecca Gibbs. She was convicted of felony trafficking in parts of illegally-taken game animals on the basis of criminal accountability. She argues on appeal that the jury was hung on the counts charged against her husband, Lee Gibbs, relating to the bobcat pelts that Burke had brought for tanning. She had admitted to Burke that it was she who did the tanning. There is no other evidence in the record which shows her participation in the acts charged against her husband, for which he was convicted. She relies on State v. Cornish (1925), 73 Mont. 205, 209, 235 P. 702, 703 and State ex rel. Murphy v. McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909 that she cannot be criminally responsible as an accomplice because of her mere presence at the acts for which her husband was convicted.

Again the conviction of Rebecca was for “trafficking,” as an accomplice. It is not necessary that criminal accountability must be founded on the convictions for the same crime by the principal offender. A person may be convicted for accountability on proof that the offense was committed, even though the other person claimed to have committed the offense has not been convicted, or is convicted of a different crime. Section 45-2-303, MCA.

There is stronger proof in Rebecca’s case that she aided or abetted “trafficking,” since for a consideration to her husband, she tanned two hides for Burke.

The same problem for Rebecca’s felony conviction arises as for Lee Gibb’s, relating to the classification of trafficking as a felony. What we said foregoing applies also here. Accordingly we sustain the conviction of Rebecca as a misdemeanor, and remand her sentence to the District Court for resentencing as a misdemeanor violation.

We strongly urge the Department of Fish, Wildlife and Parks to engage the legislature in a clean-up of the statutes defining crimes against protected game animals. The present statutes, particularly the whole of § 87-3-111, MCA, are vague and redundant. Especially it should be made clear whether “trafficking” means a course of trade or the sale of a single animal. There are constitutional considerations to be recognized in the rights of people to know in clear language when their acts transgress the rules of society.

Convictions affirmed. Remanded for resentencing in accordance herewith.

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