author: JUSTICE GRAY CHIEF JUSTICE TURNAGE

text:
    CHAD EMERY and LAURA EMERY, for herself and as next friend to CHAD EMERY, Plaintiffs and Appellants, v. FEDERATED FOODS, INC., WEST COAST GROCERY COMPANY and its successor-in-interest SUPER VALU STORES, INC., MARK SORENSON, M.D., and KIDD & COMPANY, INC., Defendants and Respondents.
    No. 92-578.
    Submitted on August 30, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1454.
    262 Mont. 83.
    863 P.2d 426.

      For Plaintiffs and Appellants: Frank B. Morrison, Jr., Morrison Law Offices, Kalispell (argued).
    For Respondents: Sherman V. Lohn (argued); Garlington, Lohn & Robinson, Kalispell, (for Federated Foods); Leonard Kaufman and James Ramlow (argued), Murray, Kaufman, Vidal, Gordon & Ogle, Kalispell (for Mark Sorenson, M.D.).
   JUSTICE GRAY

delivered the Opinion of the Court.

Chad Emery appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment to Federated Foods, Inc., Kidd and Co., Inc., West Coast Grocery Co. and its successor-in-interest Super Valu Stores, Inc. (collectively hereafter Federated Foods). He also appeals an order changing venue to Flathead County on a negligence claim against Mark Sorenson, M.D. We reverse and remand.

We phrase the issues on appeal as follows:

1) Did the District Court err in changing venue to Flathead County on Emery’s negligence claim against Dr. Sorenson?

2) Did the District Court err in refusing to consider the affidavits of Dr. Loube and Dr. Dingus?

3) Did the District Court err in granting summary judgment for Federated Foods on Emery’s products liability claim?

4) Did the District Court err in declining to rule on the admissibility of a report compiled by the American Academy of Pediatrics?

In 1987, Laura Emery and her two children, Zach, age 7 and Chad, age 2 1/2, lived in Kalispell, Montana. On November 3,1987, Laura finished her shift as a waitress and stopped at the Price Plus grocery store. At her children’s request, she purchased a bag of generic large marshmallows, scanning the label before making her choice. When the family returned home, Laura put the marshmallows on the top shelf of her kitchen cupboard, out of the children’s reach.

The next morning around 7:15 a.m., Ken Kerzman, a friend of Laura’s, stopped by to shower and to complete paperwork at Laura’s kitchen table. Although Laura had not risen from her bed on the living room couch, the children asked her if they could have some marshmallows before breakfast; she consented. Zach climbed onto the kitchen counter and retrieved the bag of marshmallows from the top shelf of the cupboard. Zach gave Chad some marshmallows and took some for himself. Chad began to choke on the marshmallows within several seconds, and pulled on Kerzman’s pant leg. Kerzman executed the Heimlich Maneuver, forcing Chad to expel several pieces of marshmallow; Chad continued to choke. Kerzman held Chad upside down and alerted Laura; they drove Chad to the Kalispell hospital.

At the hospital, doctors suctioned a small liquified piece of marshmallow from Chad’s airway. Chad sustained severe brain injuries as a result of the incident.

Laura Emery, on behalf of Chad Emery (Emery), filed the second amended complaint against Federated Foods on May 31, 1990. The complaint alleged that the marshmallows were defective and dangerous to the consumer and that, in spite of the significant danger of aspiration by small children, the product contained no warning of such danger. Emery also asserted a breach of warranty claim against Federated Foods. The complaint further alleged that Dr. Mark Sorenson negligently treated Chad Emery at the Kalispell hospital. Claims against two Missoula doctors who treated Emery after he was transferred to Missoula subsequently were settled and dismissed.

Upon motion of Federated Foods, the District Court granted summary judgment for Federated Foods on the products liability and implied warranty claims. After these claims were dismissed, the District Court granted Dr. Sorenson’s motion to change venue to Flathead County. The District Court certified the summary judgment order as final pursuant to Rule 54(b), M.R.Civ.P. Emery appeals the orders granting summary judgment and changing venue.

We note initially that, notwithstanding Emery’s counsel’s statement during oral argument that he also had appealed the dismissal of his breach of warranty claim, Emery did not argue or brief this question. As such, Emery cannot contest the District Court’s grant of summaiy judgment against him on the breach of warranty claim. Nutter v. Permian Corp. (1986), 224 Mont. 72, 75, 727 P.2d 1338, 1340.

Did the District Court err in changing venue to Flathead County on Emery’s negligence claim against Dr. Sorenson?

Emery filed his complaint in Missoula County. In Dr. Sorenson’s first appearance in the action, he moved for a change of venue to Flathead County; the District Court denied the motion. After the dismissal of the other defendants, Dr. Sorenson renewed his motion to change venue. The District Court granted the motion, concluding that because Dr. Sorenson was the only remaining defendant, venue was proper in the county of his residence. Our review of such legal conclusions is plenary. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.

It is well-settled in Montana that venue will be determined by the status of the parties and pleadings at the time of the complaint or at the time the moving party appears in the action. Boucher v. Steffes (1972), 160 Mont. 482, 485, 503 P.2d 659, 660; Clark Fork Paving, Inc. v. Atlas Concrete & Paving (1978), 178 Mont. 8, 13, 582 P.2d 779, 782; Petersen v. Tucker (1987), 228 Mont. 393, 395, 742 P.2d 483, 484.

In Boucher, the plaintiff filed a complaint against defendant Steffes and the administratrix of defendant Byer’s estate in Fallon County, where the administratrix resided. Defendant Steffes moved for a change of venue to Yellowstone County, the county of his residence, after the claim against the administratrix was dismissed. Boucher, 503 P.2d at 660. In Boucher, we held that when there are multiple defendants when the case is instituted, and the defendants who reside in the county where the action was filed are dismissed, the remaining defendant has no right to change venue to his or her county of residence. Boucher, 503 P.2d at 660. We concluded that the status of the parties and pleadings at the time the moving party appears in the action determines venue. Boucher, 503 P.2d at 660.

Applying these principles to the case before us, venue was clearly proper in Missoula County when Dr. Sorenson originally appeared in the action, as the complaint alleged claims against out-of-state corporations and two Missoula doctors. See §§ 25-2-117 and -118, MCA. We conclude, therefore, that the District Court erred in changing venue to Flathead County. To hold otherwise would require courts to reexamine the question of venue whenever the composition of the parties was altered; such a result would generate needless litigation and unduly burden the judiciary.

Finally, Dr. Sorenson asserts that because the District Court’s order on Rule 54(b), M.R.Civ.P., does not mention the order changing venue, this Court lacks jurisdiction to determine whether venue was properly transferred. This argument is without merit. Rule 1(b)(2), M.R.App.P, provides for the direct appeal of an order changing or refusing to change venue when the basis for the motion is that the county designated in the complaint is not the proper county. As such, no Rule 54(b), M.R.Civ.P, certification is required.

Did the District Court err in refusing to consider the affidavits of Dr. Loube and Dr. Dingus?

In response to Federated Foods’ motion for summary judgment, Emery submitted the affidavits of Dr. Julian M. Loube, a pediatrician, and Dr. Thomas A. Dingus, an industrial engineer. Although this Court was not provided with a transcript of the summary judgment hearing, apparently Federated Foods’ only objection to the affidavits was that the subject matter of the lawsuit was not beyond the common understanding of a layperson and, therefore, expert testimony was not required.

In its order granting summary judgment for Federated Foods, the District Court stated:

[t]he Court is not convinced that either Dr. Loube or Dr. Dingus are experts on the allegedly latent design defect or hidden dangers of marshmallows. Furthermore, the affidavits do not offer any evidence upon which this Court can properly base a finding or inference that marshmallows possess any innocuous characteristics, either by design or composition, which would enhance the possibility of choking during consumption.

Emery contends that the District Court improperly refused to consider the affidavits of Dr. Loube and Dr. Dingus.

It is apparent from the District Court’s opinion that the affidavits were before the District Court and it did consider their content. Moreover, in the District Court’s May 24,1993, order on remand from this Court, it stated that the affidavits were “relied on by the Court in reaching its decision ... and constituted [a part of] the record.” Therefore, although the District Court concluded that the affidavits did not lend any support to Emery’s argument, it did not reject the affidavits on the basis argued by Federated Foods or otherwise; nor did it exclude them from consideration. The court having considered the affidavits, we conclude only that the District Corut did not err by refusing to consider them; we leave for later determination by that court the question of the admissibility of testimony by Dr. Loube and Dr. Dingus under the Montana Rules of Evidence. The propriety of the court’s conclusion regarding the content of the affidavits is analyzed in the following issue.

Did the District Court err in granting summary judgment for Federated Foods on Emery’s products liability claim?

In support of its motion for summary judgment, Federated Foods filed a brief and relied on the existing record. In opposition to summary judgment, Emery submitted four affidavits: Dr. Loube, Dr. Dingus, attorney Sharon Morrison, and Laura Emery. He also filed the sworn statement of Zach Emery, four exhibits and an accompanying brief.

In granting Federated Foods’ motion for summary judgment, the District Court found that “the manner in which Chad consumed the marshmallows caused his damages,” and concluded that no genuine issues of material fact existed. The District Court stated:

[I]t is the manufacturer’s duty to warn inadequately informed users about the risk of danger involved with the use of a product ... The evidence in the record clearly supports a finding that the manner in which Chad consumed the marshmallows caused his damages. Under these circumstances, and for the reasons stated, the Court finds that the Defendants were not under any duty as a matter of law to warn the Plaintiffs that infants and toddlers can choke on large quantities of marshmallows eaten all at one time.

Relying on comment (j) of § 402A of the Restatement (Second) of Torts, the court concluded that a seller is not required to warn with respect to products which are only dangerous when consumed in excessive quantities if that danger is generally known and recognized.

Our standard in reviewing a grant of summary judgment is the same as that initially used by the district court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is appropriate when the pleadings, depositions, affidavits and other documents on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party seeking summary judgment has the burden of demonstrating a complete absence of any genuine factual issues. Mayer Bros. v. Daniel Richard Jewelers (1986), 223 Mont. 397, 399, 726 P.2d 815, 816. The burden then shifts to the non-moving party to show the existence of a genuine issue of material fact in order to withstand the summary judgment motion. Mayer Bros., 726 P.2d at 816.

We have stated on numerous occasions that the purpose of summary judgment is to encourage judicial economy through the elimination of any unnecessary trial. However, summary judgment is never to be a substitute for trial if there is an issue of material fact. Payne Realty v. First Sec. Bank (1992), 256 Mont. 19, 24, 844 P.2d 90, 93. All reasonable inferences that may be drawn from the offered proof must be resolved in favor of the party opposing summaiy judgment. If there is any doubt regarding the propriety of the summary judgment motion, it should be denied. Payne Realty, 844 P.2d at 93.

After careful review of the record in this case, we conclude that the District Court erroneously resolved disputed issues of material fact and, therefore, exceeded the scope of its role at the summary judgment stage of this case. Although Federated Foods argues that the affidavits submitted do not create genuine issues of material fact because the statements therein relate to non-essential, non-material facts, we conclude that the documents were sufficient to meet Emery’s burden in opposing summary judgment. We will briefly review the applicable law in this area to illustrate the materiality and relevance of the proof offered by Emery.

A products liability claim for failure to warn requires proof of the following elements:

1) the product was in a defective condition, “unreasonably” dangerous to the user or consumer;
2) the defect caused the accident and injuries complained of; and
3) the defect is traceable to the defendant.

Riley v. Honda Motor Co. (1993), [259 Mont. 128], 856 P.2d 196, 198, 50 St.Rep. 714, 715; Brown v. North American Mfg. (1978), 176 Mont. 98, 105-6, 576 P.2d 711, 717. In reviewing the District Court’s order in this case, we must consider the first two elements.

With respect to the first element, the failure to warn of an injury-causing risk associated with the use of a technically pure and fit product can render the product unreasonably dangerous. Riley, 856 P.2d at 198. The product is automatically defective if it is unreasonably dangerous and a warning is required but not given. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348; Rost v. CF&I Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. A product may be defective if purchasers and likely users have been misinformed or inadequately informed about either the risks or the dangers involved in the use of the product or how to avoid or minimize the harmful consequences from such risk. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 692 P.2d 440, 445-46.

Emery presented evidence to the District Court in support of his theory that the marshmallows involved in this case were defective and unreasonably dangerous because they lacked an effective warning. Dr. Loube’s affidavit related to the potentially hazardous properties of a marshmallow and included the following statements:

Food items are often particularly dangerous in that they change then-characteristics and consistency when they are soaked with the liquid secretions that are present in the breathing tubes of the lungs. These secretions usually cause some swelling of the food so that it further obstructs the breathing passage.
A marshmallow is a particularly hazardous confection as a risk of aspiration in children under the age of three. It is sweet and, therefore, has a great deal of appeal to small children. It appears soft and innocuous to parents and does not present the same apparent risk that might be perceived by a parent when considering a piece of hard candy or a jelly bean.
An aspirated piece of marshmallow can be veiy difficult to dislodge. Because it continues to expand after entering the airway it can efficiently obstruct a large breathing passage, perhaps even the trachea (the main breathing tube). An aspirated marshmallow fragment might not be reachable with a finger and could be difficult to dislodge with a Heimlich maneuver.

Further, Dr. Dingus stated that, absent an appropriate warning, it is foreseeable that a reasonable parent would not perceive that marshmallows present a danger to small children.

In spite of this evidence, the District Court stated that “the evidence does not support a finding that marshmallows pose any more of a threat of choking upon consumption than do the majority of other foods.” The court also concluded that the affidavits did not offer any evidence upon which the court could base a finding or inference that marshmallows possess any innocuous characteristics, either by design or composition, which would enhance the possibility of choking during consumption.

We emphasize that summary judgment was not intended, nor can it be used, as a substitute for trial of issues of fact. Edgewater Townhouse Assoc. v. Holtman (1992), 256 Mont. 182, 185, 845 P.2d 1224, 1226. The question before the District Court was whether genuine issues of material fact existed regarding the potential danger of aspiration of marshmallows without an appropriate warning. We conclude that the District Court erroneously resolved issues of fact regarding the chemical properties of marshmallows and the foreseeability of the danger of aspiration in children.

Regarding the element of causation, we recently stated in Riley that while causation is ordinarily a question of fact in a failure to warn claim, it may be determined as a matter of law where reasonable minds can reach but one conclusion. Riley, 856 P.2d at 198. We also explained that this element can be satisfied by evidence indicating that a warning would have altered the plaintiff’s use of the product or prompted the plaintiff to take precautions to avoid the injury. Riley, 856 P.2d at 198-99.

In Laura Emery’s affidavit, she stated that “if I had been warned of the risk of small children choking on marshmallows, I would not have purchased them at all... I usually read labels on food products prior to buying them. I always take note of warnings on labels about risks to children.” At a minimum, pursuant to Riley, this evidence raises a genuine issue of material fact regarding causation.

Nonetheless, the District Court made a factual finding that “Chad’s overindulgence caused his injuries” and concluded that “the evidence in the record clearly supports a finding that the manner in which Chad consumed the marshmallows caused his damages.” We conclude that a genuine issue of material fact exists regarding the cause of Chad’s damages. This question of causation — that is, whether the incident was caused by the manner and quantity of marshmallows eaten or by a product defective and unreasonably dangerous by virtue of the absence or inadequacy of a warning — remains to be decided by the fact-finder.

As a final matter, the District Court went on to state that:

[n]o evidence even suggests that Laura Emery was an inadequately informed user of marshmallows. Likewise, the record is devoid of substantial credible evidence which would support a finding that Ms. Emery was not cognizant of the potential harm presented by the consumption of marshmallows.

Laura Emery’s affidavit stated that it did not occur to her that marshmallows presented a risk of choking in small children. Dr. Dingus’ affidavit also stated that it is foreseeable that a reasonable parent, would not, without the presence of an appropriate warning, perceive that marshmallows present a danger to small children. Again, the affidavits presented belie the District Court’s opinion and its conclusion that no disputed issues of material fact exist here.

In sum, we conclude that the affidavits submitted by Emery in opposition to Federated Foods’ motion for summary judgment adequately discharged his burden of demonstrating genuine issues of material fact. We do not suggest that the disputed facts discussed herein are the only disputed facts that remain to be determined in this case; rather, those facts are indicative of the presence of disputed issues of fact and the error in granting summary judgment.

We hold that the District Court erred in granting summary judgment for Federated Foods on Emery’s failure to warn claim.

Did the District Court err in declining to rule on the admissibility of a report compiled by the American Academy of Pediatrics?

At the summary judgment hearing, Emery’s counsel attempted to introduce into evidence a report to the Food and Drug Administration by the American Academy of Pediatrics entitled “Foods and Choking in Children.” Federated Foods’ counsel objected to the report as hearsay. Emery contends that the study was offered pursuant to the hearsay exception for public records and reports under Rule 803(8), M.R.Evid., arguing that the report contains factual findings resulting from an investigation made pursuant to authority granted by law. Both sides briefed the question following the summary judgment hearing. The District Court did not rule on the admissibility of the report and does not mention it in its opinion and order on summary judgment.

We conclude that resolution of this issue is unnecessary and premature at this time. This Court was not provided with a transcript of the summary judgment hearing and the record before us does not reflect whether the District Court admitted or rejected the report. Furthermore, the thrust of the report’s conclusions is duplicated in Dr. Loube’s affidavit. Because we have determined that summary judgment was inappropriately granted based on the affidavits offered by Emery, the contents of the report are not necessary for our resolution of the summary judgment issue. In the event the report is offered into evidence at trial, the District Court will address the question of admissibility pursuant to the Montana Rules of Evidence.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES HUNT, TRIEWEILER, NELSON and WEBER concur.

CHIEF JUSTICE TURNAGE

dissenting:

I respectfully dissent.

Two-and-one-half-year-old Chad Emery choked on a marshmallow and sustained a permanent injury. Everyone is distressed at this unfortunate incident. However, the issue facing this Court is whether such incident is the basis for a products liability claim for failure of the respondents to warn Chad Emery’s mother of the danger of allowing her son to eat a marshmallow.

The majority opinion, in citing this Courts prior case law in Brown v. North American Mfg. (1978), 176 Mont. 98, 105, 576 P.2d 711, 716, and Riley v. American Honda Motor Co., Inc. (1993), [259 Mont. 128], 856 P.2d 196, 198, 50 St.Rep. 714, 715, correctly states the established rule:

A products liability claim for failure to warn requires proof of the following elements:
“1) the product was in a defective condition, ‘unreasonably’dangerous to the user or consumer,
“2) the defect caused the accident and injuries complained of[.]” [Emphasis supplied.]

The majority opinion then further states:

The question before the District Court was whether genuine issues of material fact existed regarding the potential danger of aspiration of marshmallows without an appropriate warning. We conclude that the District Court erroneously resolved issues of fact regarding the chemical properties of marshmallows and the foreseeability of the danger of aspiration in children.

In the real world of life as it is, the marshmallows in this case were not a product in a defective condition and thereby unreasonably dangerous to the user or consumer. If marshmallows are unreasonably dangerous to eat without a warning, then so would be nearly every conceivable food item that a two-and-one-half-year-old child would tiy to eat; and I submit that children of that age will try to eat anything and everything.

The possibility of a small child choking on nearly all food items is, or should be, a matter of common knowledge to all adults.

The net result of the majority opinion may well be that warnings must be placed on nearly every food item available to the public if the provider is to avoid litigation for a claim of products liability — an interesting challenge for the providers of edible items.

I understand the majority concern about the limits on summary judgments and district judges granting summary judgments when genuine issues of fact exist.

In this case as a matter of law, however, the essential element of a products liability claim is missing — the marshmallow was not in a defective condition and unreasonably dangerous.

I would affirm.

JUSTICE HARRISON concurs in the dissent of CHIEF JUSTICE TURNAGE.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. JOHN McCARVEL, Defendant and Appellant.
    No. 92-616.
    Submitted on September 3, 1993.
    Decided November 18, 1993.
    Rehearing Denied Dec. 16, 1993.
    50 St.Rep. 1460.
    262 Mont. 96.
    863 P.2d 441.

      For Defendant and Appellant: Charles F. Moses (argued), Moses Law Firm, Billings.
    For Plaintiff and Respondent: Mary Jane McCalla (argued), City Attorney’s Office, City of Billings, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Cotut.

The City of Billings filed its complaint in the City Court of the City of Billings in Yellowstone County on June 21,1991, alleging that on that same date defendant John M. McCarvel operated his motor vehicle while under the influence of alcohol in violation of § 61-8-401(a), MCA (1989). Over defendant’s objection, the charge against him was tried before a jury in City Court on July 10,1992. The jury returned its verdict, finding defendant guilty as charged. Defendant appealed his conviction to the District Court for the Thirteenth Judicial District in Yellowstone County and moved that court to dismiss the charges against him as a matter of law. The motion was denied. Following denial of that motion, defendant moved to change his plea from not guilty to guilty, and with the Citys consent pursuant to § 46-12-204(3), MCA, reserved his right to appeal from the District Court’s denial of his motion to dismiss. This appeal is from that order. We affirm the order of the District Court.

The issues raised by defendant on appeal are as follows:

1. Did the District Court err when it refused to dismiss the charge against defendant based on the City Court’s denial of his demand for a nonjury trial?

2. Did the District Court err when it refused to dismiss the charge against defendant based on the fact that he was charged with a violation of a state statute, rather than a city ordinance?

3. Did the District Court err when it held that the city attorney had authority to prosecute defendant in this case?

DISCUSSION

The followingfacts were stipulated to by the parties in the District Court and provide the factual background for defendant’s appeal:

A complaint was filed against John McCarvel on June 21, 1991, charging defendant with driving while under the influence of alcohol, in violation of § 61-8-401(a), MCA (1989). The City of Billings demanded that the issues raised by its complaint be tried by a jury. Defendant, however, waived his right to trial by jury and moved to strike the city attorney’s jury demand.

The City Court rejected defendant’s demand for a nonjury trial and set this case for trial with a jury on July 10, 1992. Prior to trial, defendant moved to dismiss the case on the basis that the City had no authority to charge him with a violation of State law and that the city attorney had no authority to prosecute him.

A jury trial was held on July 10, 1992, at which time the city attorney represented the City of Billings, and defendant was represented by his own counsel. The jury returned a verdict, finding that defendant was guilty as charged with driving under the influence of alcohol. The City Court Judge pronounced sentence, and defendant filed a timely notice of appeal to the District Court.

There is no stipulation between the parties regarding what occurred in the District Court, and there is very little record. However, it appears from the District Court record that the following events transpired in the District Court:

After filing his notice of appeal, defendant moved the District Court to dismiss the charge against him on the basis that he had been denied equal protection and due process when he was denied his right to waive a jury trial in the City Court. As additional bases for his motion, he asserted that the City had no authority to prosecute him under state law, and that the city attorney had no authority to prosecute the charges against him.

In response to defendant’s motion, the City pointed out that defendant’s appeal to the District Court entitled him to a trial de novo and that it had no objection to defendant’s waiver of trial by jury in the District Court. It contended that, therefore, the City Court’s failure to grant defendant’s waiver of a jury trial was irrelevant. The City objected to the other bases for defendant’s motion based on their merits.

On November 4, 1992, the District Court denied defendant’s motion to dismiss. Eight days later, defendant filed his waiver of trial by jury. No jury demand was filed by the City, and there is no further order from the District Court denying defendant’s request to waive trial by jury.

Instead, the District Court’s minute entry dated November 25, 1992, indicates that defendant moved for permission to withdraw his plea of not guilty and enter a plea of guilty to the charge of driving under the influence of alcohol. That motion was granted and defendant’s guilty plea was accepted.

On December 11,1992, an amended judgment was entered which reflects that defendant’s guilty plea was entered pursuant to § 46-12-204(3), MCA, with the consent of the city attorney, so that defendant reserved his right to appeal from the District Court’s denial of his motion to dismiss the charge against him. It is clear from the transcript of the hearing at which the change of plea was accepted that defendant was not appealing from a District Court denial of his right to waive trial by jury. He intended to appeal from the District Court’s refusal to dismiss the charge against him. The following dialogue is illustrative:

MS. McCALLA: Yes, your honor. The City has no objection to the defendant reserving his right to take his pretrial motions up for appeal.
THE COURT: The court will approve that plea under those conditions. The specified conditions namely would be the motion to dismiss filed by the defendant?
MR. MOSES: Well, we’re entering a plea of guilty.
THE COURT: I understand. But you’re reserving the right to have a post-judgment ruling upon the pre-judgment motion?
MR. MOSES: Yes, that is entirely correct. The court is correct, and that’s the position that we take.
THE COURT: And so that the record is clear, as I understand the statute, the specified motion, the motion that is being specified is the motion to dismiss filed in this Court by you on behalf of the defendant?
MR. MOSES: That is true, based upon the fact that we’re pleading guilty.

I.

Did the District Court err when it refused to dismiss the charge against defendant based on the City Court’s denial of his demand for a nonjury trial?

Prior to October 1, 1991, § 46-17-201(2), MCA, provided that in misdemeanor cases “[a] trial by jury may be waived by the consent of both parties expressed in open court and entered in the docket.” (Emphasis added). Based upon an amendment to that statute in the 1991 session of the Legislature, the statute now provides, and provided at the time of defendant’s trial in Billings City Court, as follows: “Upon consent of the defendant, a trial by jury may be waived.” (Emphasis added).

Defendant contends that based on this change, he had a statutory right to a nonjury trial in City Court, and that the City Judge’s refusal to grant a nonjury trial violated his constitutional rights to equal protection and to due process. The City, on the other hand, successfully argued that pursuant to Article II, Section 26, of the Montana Constitution, a jury trial could not be waived without its consent. The City Court agreed.

Without reaching the due process and equal protection issues, we agree that pursuant to § 46-17-201(2), MCA (as amended in 1991), defendant had a statutory right to waive trial by jury in the City Court. See State ex rel. Nelson v. Ninth Judicial District Court, Supreme Court Cause No. 92-512, decided November 18,1993.

However, we do not agree that the District Court erred by failing to dismiss the charges against defendant after he appealed to the District Court from the City Court.

Pursuant to § 25-33-301, MCA, defendant was entitled to a trial de novo in the District Court. That section provides:

(1) All appeals from justices’ or city courts must be tried anew in the district court on the papers filed in the justice’s or city court unless the court, for good cause shown and on such terms as may be just, allow other or amended pleadings to be filed in such action. The court may order new or amended pleadings to be filed. Each party has the benefit of all legal objections made in the justice’s or city court.
(2) When the action is tried anew on appeal, the trial must be conducted in all respects as other trials in the district court. The provisions of this code as to trials in the district courts are applicable to trials on appeal in the district court.

Pursuant to the right provided in § 46-17-201, MCA, defendant waived his right to jury trial in the District Court. The City lodged no objection to that waiver, and made no demand of its own for trial by jury. There is no indication in the record that the District Court overruled defendant’s waiver of his right to trial by jury. The only indication is that the District Court refused to dismiss the charges altogether based on the fact that defendant’s waiver had not been honored in the City Court. We have previously held that:

The district court does not, on appeal from a justices court, sit as a court of review, but tries the cause de novo (Code Civ. Proc., sec. 1761; Pen. Code, sec. 2717, Missoula El. Light Co. v. Morgan, 13 Mont. 394, 34 Pac. 488.) After the cause reaches that court, the trial and other proceedings are the same as in causes originating there, its jurisdiction depending upon the fact of jurisdiction by the justice’s court of the subject matter and of the parties. That the justice had jurisdiction of the offense charged here is clear. (Code Civ. Proc., sec. 68); that it had jurisdiction of the defendant is also clear, because the record discloses his plea of not guilty and his presence at trial and judgment. The defendant, having by his appeal asked for a trial de novo, cannot be heard to insist that the district court should confine its action thereon to a review of errors and irregularities in the proceedings of the justice [court,] and determine the case accordingly. By taking the appeal, the irregularities attending the rendition of judgment were waived. The motion was properly denied.

State v. O’Brien (1907), 35 Mont. 482, 491, 90 P. 514, 516-17.

Likewise, in this case, the District Court was not a court of review, it was an opportunity for defendant to have a trial de novo without a jury and thereby cure whatever prejudice resulted from the City Court’s refusal to apply the right to waiver provided for in § 46-17-201, MCA. We hold that the District Court did not err by refusing to dismiss the charge against defendant based on errors or irregularities that occurred in the City Court.

II.

Did the District Court err when it refused to dismiss the charge against defendant based on the fact that he was charged with a violation of a state statute, rather than a city ordinance?

For his second issue on appeal, defendant contends that when the City of Billings enacted § 61-8-401, MCA, which prohibits operating a motor vehicle under the influence of alcohol, it failed to adopt the penalty provisions found at § 61-8-714, MCA, and therefore, was without authority to prosecute defendant.

The City responds that Article 24.101 of the Billings, Montana, City Code, provides that:

It is unlawful and punishable as provided in sections 61-8-714 and 61-8-723 for any person who is under the influence of:
(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public ....

Therefore, the City points out that its ordinance adopting § 61-8-401, MCA, does in fact provide a penalty provision. However, more importantly, the City responds that defendant was not charged under its city ordinance, but instead under the state statute found at § 61-8-401(a), MCA. It points out that pursuant to § 3-11-302(2), MCA, it was authorized to bring a criminal action in its name for a violation of state statutory law that occurs within the Billings city limits. Furthermore, the City points out that § 3-11-102, MCA, provides that the City Court has concurrent jurisdiction with the Justice Court to decide misdemeanor violations arising under State law when they occur within the City. We agree.

We conclude that pursuant to the above statutes, the City did have authority to prosecute defendant and that the District Court did not err when it refused to dismiss the charge against defendant based on lack of statutory authority for the charge.

III.

Did the District Court err when it held that the city attorney had authority to prosecute defendant in this case?

The final basis for defendant’s motion to dismiss the charge against him and for this appeal is his argument that since the charge against him was based on state law, the city attorney had no authority to prosecute it. However, as noted above, the City Court had concurrent jurisdiction to try the charges against defendant, and the City had authority to bring the charges when the alleged incident occurred within its city limits.

Section 7-4-4604, MCA, provides that “[i]t shall be the duty of the city attorney to attend before the city court and other courts of the city and the district court and prosecute on behalf of the city.” Therefore, we hold that the city attorney did have authority to prosecute defendant based upon the allegation that he operated a motor vehicle while under the influence of alcohol within the city limits of the City of Billings. We hold that the District Court did not err when it refused to dismiss the charge against defendant based on lack of authority by the city attorney to prosecute him.

For these reasons, we affirm the District Court’s order denying defendant’s motion to dismiss the charge against him, and affirm the judgment entered in the District Court pursuant to defendant’s guilty plea.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, GRAY, WEBER and DISTRICT JUDGE LANGTON, sitting for JUSTICE NELSON, concur.


author: JUSTICE HUNT

text:
    THE MONTANA DEPARTMENT OF REVENUE, Petitioner and Appellant, v. JOHN C. and RITA ANN SHEEHY Respondents and Respondents.
    No. 93-193.
    Submitted on October 5, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1464.
    262 Mont. 104.
    862 P.2d 1181.
    For Petitioner and Appellant: David W. Woodgerd, Chief Legal Counsel; Lawrence G. Allen, Tax Counsel, Department of Revenue, Helena.
    For Respondents: John C. Sheehy, Pro Se, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from an order of the First Judicial District Court affirming the decision of the State Tax Appeal Board (STAB). The STAB ruled that DOR’s use of a stratified sales assessment ratio study to determine a value multiplier, as applied to the respondents’ (Sheehys) home, caused the same disparity of treatment of taxpayers within a specified area as that determined by this Court in Department of Revenue v. Barron (1990), 245 Mont. 100, 799 P.2d 533.

We affirm.

Both parties raise several issues. However, we find the following issue dispositive:

Is Senate Bill 412, Chapter 680, 1991 Mont. Session Laws (S.B. 412) unconstitutional?

During the 1991 Session, the Legislature enacted S.B. 412 to address the constitutional problems identified in Barron, 799 P.2d 533. Senate Bill 412 authorized DOR to use a specific stratified sales ratio study to adjust property values in a given district during an appraisal cycle. The DOR divided the State into 48 areas. In each area, DOR determines a ratio. The DOR established a ratio by comparing the assessed value of various pieces of property in the district to the actual sales price of each property sold.

Sheehys live in Urban Helena Area 5.1, where they are joint tenant owners of a home. In 1982, DOR appraised the property at a value of $10,500 for the land and $66,007 for the improvements, for a total of $76,507. In 1991, DOR increased those values to $10,920 for the land and $68,647 for the improvements, for a total of $79,567.

In the area, there were 20,535 pieces of property. From November 1989 to November 1990, 249 of those properties were sold. The stratified sales assessment ratio study conducted in Area 5.1 found that 19.3 percent of the properties were within the 95 to 105 percent of their true market value; 65.1 percent were appraised under 95 percent of their true market value; while 15.6 percent were appraised in excess of 105 percent of their market value. A ratio of 0.9138 was found for Urban Helena Area 5.1. The inverse ratio is 1.09433 (1 divided by 0.9138). DOR subtracted 5 percent from this inverse to bring it closer to 0.95, resulting in an adjustment multiplier of 1.04 percent, or 4 percent. As a result, DOR raised 1990 appraised value of all properties in Area 5.1 by 4 percent.

Prior to the application of the adjustment multiplier, of the 249 properties sold, 39 were considered over-appraised, 162 properties were considered under-appraised, and 48 fell between the 95 percent to 105 percent range. After the application of the adjustment multiplier, 58 properties were considered as over-appraised, 123 properties remained under-appraised, and 68 fell into the 95 percent to 105 percent range. Expanded to the entire population of 20,535 parcels, this would mean that 49.4 percent or 10,144 parcels remain under-appraised.

Sheehys purchased the property in 1979 for $69,000. In 1990, the DOR appraised value was 10.8 percent over the purchase price. The revised 1991 appraised value and assessment would increase the DOR appraised value to 15.3 percent over the 1979 purchase price. Sheehys accept the 1990 DOR appraised value, which is the same as the 1982 appraisal.

On June 12, 1991, Sheehys appealed their tax assessment to the County Tax Appeal Board of Lewis and Clark County (CTAB). After a hearing, CTAB denied the appeal. On July 24, 1991, Sheehys appealed the CTAB decision to STAB. After conducting a hearing, on June 5, 1992, STAB ruled in favor of Sheehys.

OnAugust4,1992, DOR filed a petition for judicial review in the First Judicial District Court. On Februaiy 2,1993, the court issued an order affirming STAB’s decision based upon Barron. On April 5, 1993, DOR appealed the District Court decision to this Court.

In Barron, we held that the use of the 1990 tax values derived from the ratio studies and the application of the 30 percent factor to residential properties in Area 2.1 required certain taxpayers to bear a disproportionate share of Montana’s tax burden in violation of the equal protection and due process clauses of the United States and Montana Constitutions. Barron (1990), 799 P.2d at 542. We also stated that it violated the appraisal provisions of our statutes which require general and uniform appraisal, assessment, and equalization of all taxable property in the State. Barron, 799 P.2d at 542. We held that the methodology employed by DOR for yearly equalization between areas unfairly discriminates against property taxpayers in Area 2.1 whose properties in 1989 were appraised at or above market value. Barron, 799 P.2d at 540.

In response to Barron, the Legislature passed S.B. 412 in 1991 which provided reappraisal of areas with widely disparate appraisals, such as existed in Area 2.1 in the Barron case. Senate Bill 412 provided a right to appeal adjusted values. Finally, S.B. 412 reduced the appraisal cycle from five to three years, with no interim adjustments following the completion of the appraisal cycle in 1993.

Even with these changes, S.B. 412 did not address the central holding of Barron-, that an across-the-board application of the 30 percent factor, without considering other factors relating to market value, is unconstitutional. We said that the indiscriminate use of an across-the-board 30 percent factor would “necessarily exacerbate the values of those properties which are already assessed at or near market value or in excess thereof.” Barron, 799 P.2d at 540. DOR is employing the same methodology used in Barron, but instead of applying a 30 percent factor, DOR is now applying a four percent factor. The method may achieve equalization between areas but not between individual properties where inequities already exist. Barron, 799 P.2d at 540. The same disparities exist here as those that occurred in Barron. The DOR did not include in its study a representative sample relating to age, condition, size, design, construction materials, location, utilities, city or county services, or other factors that determine market value.

The DOR contends that the appeal provision of S.B. 412 saves the entire statute. As we stated in Barron, the non-appeal provision of § 15-7-102(6), MCA, was not necessarily essential to our decision. Barron, 799 P.2d at 541. We hold that S.B. 412 is unconstitutional as it relates to the appraisal process as a denial of equal protection.

We affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, TRIEWEILER, NELSON and WEBER concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NEIL TODD, Defendant and Appellant.
    No. 93-210.
    Submitted on Briefs September 30, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1466.
    262 Mont. 108.
    863 P.2d 423.

      For Defendant and Appellant: Bob Alsobrook, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Paul D. Johnson, Assistant, Helena; Loren Tucker, Madison County Attorney, and Robert R. Zenker, Deputy, Virginia City.
   JUSTICE GRAY

delivered the Opinion of the Court.

This case presents procedural and jurisdictional issues relating to when appeals from justice court to district court are timely filed, the effect of a premature notice of appeal on the justice court’s jurisdiction and which court has jurisdiction to rule on the timeliness of such an appeal. In affirming the District Court’s dismissal of Neil Todd’s appeal from the Justice Court to District Court, we take this opportunity to clarify the procedural and substantive standards that surround an appeal from justice court to district court.

Todd was charged in Madison County Justice Court with misdemeanor assault as a result of allegedly slapping a high school basketball referee. A jury subsequently convicted him of the offense, a sentencing hearing was scheduled and the State filed its recommendations. On March 18,1992, Todd filed his sentencing recommendation. On the same date, he filed a “Notice of Intention to Appeal” his conviction to the District Court.

The Justice Court proceeded with sentencing on March 23, 1992, without objection from Todd. It ordered Todd to pay a $250 fine or perform fifty-nine hours of community service and to pay restitution to Madison County for jury costs totalling $603.55. It also deferred imposition of a six-month sentence. Three months later, Todd notified the Justice Court that he had fulfilled the community service requirement. After three more months, the Clerk of the Justice Court advised Todd that he had not yet reimbursed the county for the jury costs, a condition of his deferred sentence. On the basis of Todd’s failure to pay the ordered reimbursement, the State moved the Justice Court for imposition of sentence. It also moved that court to dismiss Todd’s March 18, 1992, notice of intention to appeal.

Todd responded by requesting the Justice Court to transfer the record of his case to District Court and to deny the State’s motion to dismiss the appeal. Following a hearing, the Justice Court granted the State’s motion to dismiss Todd’s notice of intention to appeal. Todd subsequently filed a notice of appeal from the Justice Court’s order dismissing his first appeal. After briefing and oral argument, the District Court concluded that it had no jurisdiction to review the Justice Court’s order and dismissed his appeal. Todd now appeals to this Court.

Did the District Court err in dismissing Todd’s appeal?

We begin our analysis with the filing of Todd’s initial notice of intention to appeal and review the proceedings from that point forward. As detailed above, Todd filed his first notice of intention to appeal prior to sentencing by the Justice Court on his assault conviction. The Justice Court disregarded the notice of appeal and proceeded to sentence Todd.

The time requirements for filing an appeal to district court are found in § 46-17-311(2), MCA, which provides that a defendant may appeal to the district court by filing written notice of intention to appeal within ten days after a judgment is rendered following trial. The statutory definition of ‘judgment” states that if a defendant is adjudicated guilty, judgment includes the sentence pronounced by the court. Section 46-1-202(10), MCA Thus, a prerequisite for an appeal from justice court to district court is the imposition of sentence and final judgment. State v. Wilson (1992), 252 Mont. 264, 266, 827 P.2d 1286, 1287; State v. Hegeman (1991), 248 Mont. 49, 52, 808 P.2d 509, 511. We note that, although § 46-17-311, MCA, was amended in 1993, the amendment does not relate to or change the validity oí Wilson's application of the time requirements for filing a notice of appeal from justice court.

Under Wilson and the statutes discussed above, it is clear that Todd’s first notice of intention to appeal was filed prematurely. As we explained in Hegeman, a district court does not obtain jurisdiction until sentencing and final judgment have been imposed; similarly, the justice court does not lose jurisdiction until a timely notice of appeal has been filed pursuant to the requisites of § 46-17-311, MCA. See Hegeman, 808 P.2d at 511. As a result, we hold that Todd’s notice of appeal from this criminal action in Justice Court, filed prior to sentencing and final judgment, was premature as a matter of law and had no effect on the Justice Court’s jurisdiction. Therefore, in this case, the Justice Court retained jurisdiction over Todd’s case and properly proceeded to Todd’s sentencing and final judgment.

However, procedural and jurisdictional errors in this case were committed thereafter. Nearly seven months after sentencing and final judgment, the State moved the Justice Court to dismiss Todd’s March 18,1992, notice of intention to appeal on the basis that the appeal was premature. In response, Todd asserted that his prior appeal was perfected and that a dismissal of his appeal would be a denial of due process; he requested that the record be transferred to District Court. The Justice Court held a hearing and subsequently dismissed Todd’s notice of intention to appeal.

Before we address Todd’s specific arguments, we clarify a procedural point relevant to this case to provide future guidance to the justice courts. The district court, not the justice court, must address the merits of a motion to dismiss an appeal from justice court; therefore, it is in the district court that such a motion must be filed. See, for example, State v. Speith (1990), 244 Mont. 392, 395, 797 P.2d 221, 222; City of Billings v. Seiffert (1985), 215 Mont. 381, 383, 697 P.2d 1342, 1343; and State v. Main (1980), 191 Mont. 304, 307, 623 P.2d 1382, 1384. As is clear from our discussion above, a motion to dismiss is not necessary if the notice of appeal is premature as a matter of law; however, if a motion to dismiss an appeal is otherwise appropriate, the motion should be filed in the district court.

In Hadford v. Hadford (1980), 189 Mont. 329, 332, 615 P.2d 920, 921, after the appellant filed notice of appeal from a district court order to the Supreme Court, the respondent moved the district court to dismiss the appeal because a bond had not been posted. We held that a district court had no authority to order the dismissal of an appeal once a notice of appeal has been filed; such authority is the exclusive province of this Court. Hadford, 615 P.2d at 921. The same principles apply here. The Justice Court had no authority to rule on a motion to dismiss an appeal to the District Court.

Aside from the procedural irregularities, the District Court ultimately concluded that dismissal of Todd’s appeal was appropriate. Our review of such legal conclusions is plenary. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603. Because we have determined that Todd’s first notice of appeal was filed prematurely and had no legal effect, we turn our focus to Todd’s second notice of appeal.

The District Court concluded that it lacked jurisdiction to review the Justice Court’s order dismissing Todd’s appeal because § 46-17-311, MCA, limited its jurisdiction to a trial de novo. Because Todd had failed to file his notice of appeal within ten days of his sentence and final judgment, the court concluded that its “de novo jurisdiction” was moot.

We conclude that the District Court did not err in dismissing Todd’s second notice of appeal. Section 46-17-311(1), MCA, provides:

[e]xcept for cases in which legal issues are preserved for appeal pursuant to 46-12-204, all cases on appeal from a justice’s or city court must be tried anew in the district court....

As the statute makes clear, an appeal to the district court for a trial de novo is a party’s exclusive remedy for review of justice court proceedings. Adair v. Lake County (1984), 213 Mont. 466, 468, 692 P.2d 13, 14. A district court does not have appellate jurisdiction to review the correctness of legal conclusions made by a justice court. State v. Kesler (1987), 228 Mont. 242, 246, 741 P.2d 791, 793. The District Court correctly determined, therefore, that it could not review the Justice Court’s order dismissing Todd’s appeal.

Todd concedes that a new trial is the exclusive remedy provided by § 46-17-311, MCA. He nonetheless asserts that the Justice Court’s hearing on the State’s motion to dismiss his appeal and his asserted “due process violations” constituted a trial entitling him to an appeal under § 46-17-311, MCA. Todd’s argument is without merit. He cites no applicable authority to support his assertion that this hearing, and not the trial held March 9, 1992, to determine his guilt or innocence, was the “trial” from which he could appeal to District Court. Under the plain wording of § 46-17-311, MCA, Todd’s “trial” was held on March 9,1992, and that trial, not the hearing erroneously held by the Justice Court on the State’s motion to dismiss his initial notice of intention to appeal, gave rise to his right to appeal to the District Court for a trial de novo.

Todd also argues that rigid adherence to the time limits set by § 46-17-311, MCA, violates his constitutional guarantee of due process. This argument is equally meritless. We have stated on many occasions that the right to appeal a criminal conviction from justice court is purely statutoiy and that strict compliance with § 46-17-311, MCA, is necessary to perfect an appeal. Speith, 797 P.2d at 222; State v. Arthur (1988), 234 Mont. 75, 76-77, 761 P.2d 806, 807. Todd simply failed to follow the requirements of § 46-17-311, MCA, and, therefore, he is not entitled to a new trial in District Court. No due process violation occurred here.

In summary, we hold that Todd’s first notice of appeal was premature as a matter of law and that the District Court did not err in dismissing Todd’s second notice of appeal.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    LORN WELCH, Plaintiff and Appellant, v. SHARON D. HUBER, a/k/a SHARON TURBIVILLE, a/k/a SHARON BERTRAM, Defendant and Respondent.
    No. 93-220.
    Submitted on Briefs October 15, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1469.
    262 Mont. 114.
    862 P.2d 1180.

      For Plaintiff and Appellant: Richard J. Carstensen, Billings.
    For Defendant and Respondent: George T. Radovich, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner Lorn Welch appeals from a decision of the Thirteenth Judicial District Court, Yellowstone County. The court declared that a judgment, judgment lien, and judgment execution held by Lorn Welch against respondent were void. We affirm the holding of the District Court for reasons not stated in its order.

The dispositive issue is whether the judgment in this case is barred because the judgment creditor did not file an action to extend the judgment within ten years of the date the judgment was entered, as permitted by § 27-2-201(1), MCA.

During 1980, Lorn Welch (Lorn) loaned money to Sharon D. Huber, a/k/a Sharon Turbiville, a/k/a Sharon Bertram (Sharon) for the construction of a home in Billings. As part of their agreement, Sharon signed a promissory note which stated she would pay Lorn $6,612.34. Sharon did not pay Lorn. On July 20,1982, he successfully obtained a default judgment against her.

On July 20, 1988, Lorn moved the court to extend the judgment, the hen ofthe judgment and the right to issue execution thereon. That day, the District Court entered an order extending the judgment until July 20, 1994. On January 11 and 26, 1993, ten years, five months, twenty-two days and ten years, six months, six days, respectively, after the July 20, 1982 judgment, Lorn attempted to collect on the judgment by obtaining two writs of execution against property Sharon had in Roosevelt and Lewis and Clark Counties. Sharon thereafter moved the court to strike the order which extended the judgment, and to quash Lorn’s writs of execution.

The court granted Sharon’s motion after finding that the order extending the judgment was void because Sharon was not served with notice of the motion. Lorn appeals.

Is the judgment in this case barred because the judgment creditor did not file an action to extend the judgment within ten years of the date the judgment was entered, as permitted by § 27-2-201(1), MCA?

Our standard of review concerning a district court’s conclusions of law is to determine whether the conclusions are correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

The order extending Lorn’s time to execute the judgment presumed to make the original judgment order valid for a period of twelve years (from 1982 to 1994). This is not permissible. Enforcement of a judgment is barred by its statute of limitations after the judgment order’s ten-year duration has expired. Section 27-2-201(1), MCA, states:

[T]he period prescribed for the commencement of an action upon a judgment or decree of any court of record of the United States or of any state within the United States is within 10 years. [Emphasis supplied].

A judgment creditor may file an action to extend a district court’s judgment beyond its initial ten-year duration; the judgment cannot be extended past ten years by ex parte motion, as Lorn moved on July 20,1988. See generally State v. Hart Refineries (1939), 109 Mont. 140, 92 P.2d 766.

In light of the above statute and § 25-13-102, MCA, motions to extend the time for executions of district court judgments past six years from the date the judgments are entered are permissible, as long as the total time period does not extend past the judgment’s ten-year duration. Because Lorn attempted to collect on the judgment on January 11 and 26, 1993 — ten years, five months, twenty-two days and ten years, six months, six days, respectively, after the court entered its original July 20, 1982 judgment order — the executions are barred as being five months, twenty-two days and six months, six days, respectively, late.

We hold that Lorn’s ex-parte motion was not an action nor a valid basis to extend the 1982 judgment against Sharon past 1992.

Affirmed.

JUSTICES HARRISON, GRAY, NELSON and TRIEWEILER concur.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. KEVIN E. JENKINS, Defendant and Respondent.
    No. 93-245.
    Submitted on Briefs August 12, 1993.
    Rehearing Denied Dec. 16, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1471.
    262 Mont. 117.
    863 P.2d 438.

      For Plaintiff and Appellant: Susan L. Wordal, City Prosecutor, City of Bozeman, Bozeman.
    For Defendant and Respondent: Pamela S. Snyder, Bryan & Atkins, Bozeman.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighteenth Judicial District, Gallatin County, the Honorable Larry W. Moran presiding. Appellant State of Montana (State) appeals from the dismissal of defendant’s driving under the influence of alcohol charge for lack of a speedy trial. We reverse and remand.

The issue is whether the District Court erred in ruling that the criteria for evaluating speedy trial issues enunciated in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, did not apply in this case.

On September 2, 1991, the City of Bozeman charged Kevin E. Jenkins (Jenkins) with driving under the influence of alcohol, a misdemeanor. The facts of the crime are not at issue. Jenkins requested a jury trial in Bozeman City Court, which was held on January 31, 1992. Following a guilty verdict, Jenkins appealed on that day to the Gallatin County District Court.

Jenkins filed a motion to dismiss for failure to state an offense on July 1,1992. The State responded to Jenkins’ motion on July 9,1992. A hearing on Jenkins’ motion to dismiss was set for August 24,1992; however, the District Court granted the State a continuance, as the arresting officer was to be in Helena, Montana, on duty-related matters at that time. Over no objection by Jenkins, the hearing was rescheduled for September 8, 1992. At that hearing, the District Court denied Jenkins’ motion to dismiss.

Due to the crowded court docket (especially a time-consuming murder trial), the judicial election, court vacation and a week of court administrative duties, the court’s calendar was booked until January 25, 1993, when a scheduling conference was held to select Jenkins’ trial date. At that conference, the court set trial for April 9,1993, the earliest available date. On April 8, 1993, Jenkins filed a motion to dismiss for lack of a speedy trial. On April 9, 1993, after hearing arguments from Jenkins and the State, the court granted Jenkins’ motion.

The right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. This right is of fundamental importance and we analyze it under the four-factor test set out in Barker. State v. Heffernan (1991), 248 Mont. 67, 69, 809 P.2d 566, 567; State v. Robbins (1985), 218 Mont. 107, 115, 708 P.2d 227, 233; State v. Ackley (1982), 201 Mont. 252, 255, 653 P.2d 851, 853; State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

The factors of the test are: 1) length of delay; 2) reason for delay; 3) defendant’s assertion of his right to a speedy trial; and 4) prejudice to the defendant. Barker, 407 U.S. at 514,92 S.Ct. at 2182; Heffernan, 809 P.2d at 567. While no one factor is dispositive on the issue of speedy trial, they' “must be considered together with such other circumstances as may be relevant. The Court must still engage in a difficult and sensitive balancing process.” State v. Larson (1981), 191 Mont. 257, 261, 623 P.2d 954, 957 (citation omitted). In the instant case, the District Court determined that the four-factor Barker test did not apply. Moreover, the court did not apply the balancing process referred to in Larson.

The first factor of the test is length of delay. The court need not go beyond this factor unless the delay is presumptively prejudicial. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The length of delay, from Jenkins’ notice of appeal to the hearing on his motion to dismiss for lack of a speedy trial, was 433 days. Section 46-13-401(2), MCA, addresses a defendant’s right to a speedy trial in misdemeanor cases:

(2) After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

The State met this statutory requirement by bringing Jenkins to trial in Bozeman City Court within six months. The parties agree that the ensuing 433-day delay, especially in light of a misdemeanor charge, is presumptively prejudicial. The court, then, must balance the remaining factors articulated in Barker. State v. Sunford (1990), 244 Mont. 411, 416, 796 P.2d 1084, 1087.

The second factor of the test is reason for delay. In analyzing this factor, the court balances the State’s actions against those of the defendant. It must compare the State’s exercise of reasonable diligence in bringing a defendant to trial with the percentage of delay attributable to the defendant. State v. Freeman (1979), 183 Mont. 334, 338-39, 599 P.2d 368, 371.

In this case, the District Court found:

[T]he State did nothing intentionally to delay the prosecution of the case. They acted properly. They acted consistently. The delays in the case are caused simply because the case can never be brought to trial because of the condition of the court dockets.... We simply could not grind the thing out. And that’s not the Defendant’s fault. It’s not the State’s fault. It simply is recognition of a circumstances that exists.

The District Court, citing a crowded court docket, accepted full responsibility for the delay. However, the District Court erred in finding that neither Jenkins nor the State bore any responsibility for the delay. The District Court must now determine the number of days attributable to each party, bearing in mind that unintentional delay is not held against the State to the same extent as intentional delay designed to gain a tactical advantage over the defendant. Heffernan, 809 P.2d at 569; State v. Marquardt (1990), 243 Mont. 133, 134-35, 793 P.2d 799, 801 (citing Ackley, 653 P.2d at 853). The court must then weigh this computation against the other factors set out in Barker.

The third factor of the test is assertion of the right to speedy trial. “The proper time to assert the right to a speedy trial is prior to the actual commencement of the trial, usually at the time the trial date is set, or the time the case is called to trial.” State v. Steward (1975), 168 Mont. 385, 390-91, 543 P.2d 178, 182. In this case, the District Court determined that Jenkins satisfied the third factor by bringing bis motion on April 8,1993, one day before his trial was to begin.

The fourth factor of the Barker test is prejudice to the defendant. Defendants have three interests which are to be protected by a speedy trial: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit possible impairment of the defense. Heffernan, 809 P.2d at 570 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193). Although the first interest is not at issue in this case, the court must analyze the second two interests. We determine that while the District Court touched on these interests at Jenkins’ hearing, it failed to make specific findings regarding anxiety and concern to Jenkins and possible impairment of Jenkins’ defense resulting from the delay.

To support its contention that the District Court failed to apply the Barker test, the State cites the following District Court statement: “I don’t feel, quite frankly, that the criteria in [Barker\ really have application.” Conversely, Jenkins argues that the District Court did, in fact, apply Barker. For example, the District Court stated: “I don’t think that this defendant is going to forget all of the events of that night. I don’t feel that his defense is truly going to be hampered. I don’t feel that there has been any — any problem under [Barker].” We agree with the State’s argument that the District Court failed to apply Barker.

Jenkins, the State and the court are understandably frustrated by delays which have kept a misdemeanor charge from being resolved for well over a year. While we understand the serious difficulties Montana courts face with respect to overcrowded dockets, we note that in speedy trial cases “[t]he essential ingredient is orderly expedition and not mere speed.” United States v. Marion (1991), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (citing Smith v. United States (1959), 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041).

In the absence of any Barker analysis, the District Court erred by ruling as a matter of law that too much time had passed between the filing in District Court and the trial. We conclude that the District Court must consider all of the factors under the Barker analysis and make the required findings and conclusions.

We reverse the order granting a new trial and remand for further proceedings consistent with this opinion.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.


text:
    IN THE MATTER OF THE ESTATE OF JOSEPH F. LANGENDORF, Deceased.
    No. 93-333.
    Submitted on Briefs October 15, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1474.
    262 Mont. 123.
    863 P.2d 434.

      For Appellant: Lawrence G. Allen, Tax Counsel, Dep’t of Revenue, Helena.
    For Respondent: Bruce E. Lee, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

This appeal arises from a dispute over the taxable value of a gift of real property made by Joseph F. Langendorf two years prior to his death. Although the Estate of Joseph F. Langendorf (the Estate) agrees that the gift is subject to Montana inheritance tax, it challenges the Department of Revenue’s (the Department) valuation of the gifted property. The Thirteenth Judicial District Court, Carbon County, granted summary judgment to the Estate, allowing the Estate a $20,000 reduction in the taxable value of the gifted property under Montana’s inheritance tax statutes. We reverse, holding that the court incorrectly interpreted the statutes at issue.

The pertinent facts are undisputed. Joseph F. Langendorf (Langendorf) died on September 17, 1990. Two years prior to his death, Langendorf gifted real property located in Carbon County to Dean and Teresa Hayden in equal undivided interests.

Teresa Hayden, the personal representative named in Langendorf’s will, filed a petition for informal probate on October 10,1990. She subsequently filed an application for Determination of Inheritance Tax with the Department, listing the appraised value of the gifted real property as $128,000. She then subtracted $20,000 for an exclusion she denominated “annual gift exclusion” ($10,000 per do-nee) and submitted the property’s taxable value for state inheritance tax purposes as $108,000.

The Department disallowed the $20,000 exclusion and determined inheritance taxes due based on the $128,000 market value of the property. The Estate filed its objection to, and appeal of, the Department’s determination of tax in District Court. Both parties moved for summary judgment, agreeing that no disputed issues of fact remained. In its opinion, the District Court tacitly conceded that the statutes did not provide for the exclusion, but reasoned that the legislature must have impliedly intended to allow the exclusion. It concluded that, in order to avoid an absurd result, the statute must be read to allow the $20,000 exclusion. The Department appeals.

The sole issue on appeal is whether Montana’s inheritance tax statutes allow a deduction, exclusion or exception for the first $10,000 per donee of the taxable value of a gift made in contemplation of death.

The District Court’s interpretation of the statutes in light of the facts presented resulted in a conclusion of law. Thus, our standard of review is whether the District Court’s interpretation of the law is correct. Mooney v. Brennan (1993), 257 Mont. 197, 848 P.2d 1020, 1022; Andrews v. Ford Const. (1990), 241 Mont. 203, 205, 786 P.2d 18, 19. Applying our well-established rules of statutory construction, we conclude that the District Court’s interpretation was in error.

In interpreting statutes, we first look to the plain meaning of the words used. Allison v. Jumping Horse Ranch (1992), 255 Mont. 410, 412, 843 P.2d 753, 755. When the language of a statute is plain, unambiguous, direct and certain, the statute speaks for itself and no further interpretation is required. Blake v. State (1987), 226 Mont. 193, 198, 735 P.2d 262, 265; GBN, Inc. v. Montana Dep’t of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597. Furthermore, we have stated many times that it is the function of the courts to ascertain and declare what, in terms or substance, is contained in a statute; it is not our function to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. With those principles in mind, we review the applicable Montana inheritance tax statutes.

Section 72-16-308, MCA, establishes that taxable transfers will be taxed on the “clear market value” of the property and enumerates the allowable deductions which may be made in determining the clear market value. The statute is clear that only the listed deductions “and no other shall be allowed.” Section 72-16-308(2), MCA Moreover, even absent such explicit language, it is a general rule of taxation that an item may constitute a deduction only when the legislature specifically establishes the deduction. GBN, Inc., 815 P.2d at 597. Under the plain meaning of § 72-16-308, MCA, no deduction is allowed for the first $10,000 in value per donee of the transfer at issue here.

The question remains, therefore, whether the gift was a taxable transfer under Montana inheritance tax statutes. Section 72-16-301, MCA, reads, in pertinent part:

Taxable transfers generally — contemplation of death.
(1) A tax shall be and is hereby imposed upon any transfer of property, real, personal, or mixed, or any interest therein or income therefrom in trust or otherwise to any person, association, or corporation in the following cases, except as provided in this section:
(c) when the transfer is of property made by a resident ... by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor, or donor or intended to take effect in possession or enjoyment at or after such death.
(3) Every transfer during the 3-year period ending on the date of the decedent’s death must be considered to have been made in contemplation of death, except:
(b) if the transfer was a gift to a donee made during the calendar year and if the decedent was not required by section 6019 of the internal revenue code to file any gift tax return for the year with respect to the donee, the transfer may not be considered to be a gift made in contemplation of death. [Emphasis added.]

Thus, § 72-16-301(l)(c) and (3), MCA, begin by clarifying that transfers made in contemplation of death — such as Langendorf’s gift to Dean and Teresa Hayden two years prior to his death — generally are taxable transfers for purposes of Montana inheritance tax. Section 72-16-301(3)(b), MCA, unambiguously goes on to provide that if the decedent was not required to file a federal gift tax return pursuant to § 6019 of the Internal Revenue Code (I.R.C.) for the particular transfer, that transfer is not made in contemplation of death and, therefore, is not subject to Montana inheritance tax.

The I.R.C. provision referenced in § 72-16-301(3)(b), MCA, only exempts a person from filing a gift tax return if the gift is $10,000 or less in value. See§§ 6019 and 2503,1.R.C. The property gifted to Dean and Teresa was worth more than $10,000 per donee and, therefore, a federal gift tax return was required. Because the federal gift tax return was required, the exclusion in § 72-16-301(3)(b), MCA, was not triggered.

We conclude, therefore, that the District Court erred in allowing the Estate’s deduction. Under the plain meaning of § 72-16-301, MCA, Langendorf’s gift to Teresa and Dean was a taxable transfer and the exception provided in § 72-16-301(3)(b), MCA, did not apply because a federal gift tax return was required. Accordingly, the plain language of § 72-16-308, MCA, requires that the property be taxed at its clear market value, $128,000.

The Estate argues that the 1989 Editorial Comments to § 72-16-301, MCA, demonstrate legislative intent to incorporate federal estate and gift tax provisions into Montana’s inheritance tax scheme. On that basis, it asserts that the $10,000 annual federal gift tax exclusion per donee should be read into § 72-16-301, MCA We disagree.

The comments read:

1989 Editorial Comment: Former Montana law subjected gifts of a “material part” of a decedent’s estate to inheritance taxation if made within 3 years of the donor’s death. However, former law did not define the phrase “material part”. Some attorneys argued that the phrase meant that any amount, no matter how small, would be included, so long as the inheritance tax would increase by such inclusion.
This change conforms Montana inheritance tax provisions concerning the de minimis exception for gifts made within 3 years of death with the corresponding provision of the federal estate tax. See Internal Revenue Code section 2035. Thus, if no federal gift tax return must be filed because the gift is within the annual exclusion of Internal Revenue Code section 2503(b) ... then such gifts are not considered to be made in contemplation of death and therefore are not subject to Montana inheritance tax. ...

As the comments indicate, the legislature intended to conform Montana inheritance tax statutes with the federal estate tax statutes — not federal gift tax statutes — with regard to what was formerly referred to as the de minimis exception. Both the federal estate and Montana inheritance tax systems exempt from taxation any transfer that was not required to be reported under § 6019, I.R.C. The Editorial Comments also confirm our conclusion, based on § 72-16-30 l(3)(b), MCA, that if a federal gift tax return is not required, then the gift is not subject to Montana inheritance tax. The converse also is true and applies to this case: if a federal gift tax return is required, the gift is subject to Montana inheritance tax.

Further, nothing in the latter portion of the comments indicates that the legislature intended to incorporate federal gift tax provisions of any kind into Montana inheritance tax statutes. If the legislature had intended to provide an exclusion similar to that found in the federal gift tax provision at § 2503, I.R.C., it could have enacted a similar statute; it did not. Instead, it explicitly provided an exception only for those transfers for which a federal gift tax return was not required. Section 72-16-301(3)(b), MCA. As emphasized earlier, the reference to the gift tax provisions merely provides the “trigger” for determining whether a transfer made in contemplation of death is taxable under Montana inheritance tax statutes.

We hold, therefore, that Montana’s inheritance tax statutes do not allow a deduction, exclusion or exception for the first $10,000 per donee of the taxable value of a gift made in contemplation of death. We further hold, on that basis, that the District Court erred in granting summary judgment for the Estate.

This Court has the power to reverse a district court’s grant of summary judgment and direct it to enter summary judgment in favor of the other party only when all of the facts bearing on the issues are before the Court. Canal Ins. Co. v. Bunday (1991), 249 Mont. 100, 108, 813 P.2d 974, 979. Both parties agree that the material facts are undisputed and before this Court; indeed, both parties moved for summary judgment in the District Court on that basis. For the reasons set forth herein, we hold that the Department is entitled to summary judgment in its favor.

Reversed and remanded for entry of summary judgment consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, HUNT, NELSON and WEBER concur.