author: Pee, Cueiam. Per Curiam.-

text:
    No. 1,718.
    In re SUTTON; STATE ex rel SUTTON, Petitioner, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.

      Habeas curpus. Certiorari.

    Decided March 13, 1902.

      Application of Wakeman Sutton for writ of habeas corpus and for writ of certiorari in aid thereof to the district court of the Second judicial district and William Clancy, Judge.
    Judgment of contempt set aside, and petitioner discharged.
   Pee, Cueiam.

This causa having been heretofore argued and by the court taken under advisement;, now, upon consideration, the court, being advised in the premises, doth find that the judgment in contempt of the district court of Silver Bow county, Montana, rendered on the 3d day of September, 1901, and entered on the 4th day of September, 1901, was and is* in so far as it declares tire petitioner, Sutton, guilty of contempt, wholly unauthorized and void, for the reason that the evidence adduced on the hearing of tire supposed contempt charged to have been committed by the petitioner*, Sutton, and brought before this court by the writ of certiorari in aid of the Writ of habeas corpus, does not show or tend to prove him guilty thereof, and that no legal cause is shown for the imprisonment of said Sutton or for the’said judgment of contempt against him or for any part thereof. It is therefore ordered and adjudged that the said judgment of contempt be, and the same is hereby, annulled as to the said petitioner, Sutton, and that he be discharged from the custody of the sheriff or Silevr Bow county, aforesaid, and that his bail be exonerated.

The court is of the opinion that the order, of which the following is a copy: “It is further ordered that the said defendants, their agents, servants, and -employes, shall not do any further work in that certain drift known as a drift from the new shaft or the Hobinson upraise, and that they shall immediately securely timber the same,”- — -which is included in the said judgment for contempt, and which was imposed as a penalty or punishment for the supposed contempt, is utterly null and void, for the reason that it attempts to denounce a penalty for contempt not warranted by Section 2179, Code of Criminal Procedure, or by any other law.

The Chief Justice concurs. He is further of the opinion that the order is before the court for review under the writ of •certiorari, and that it should be annulled entirely.

Mr. F. T. McBride, Mr. Robert McBride, and Mr. E. N. Harwood, for Petitioner.

(For opinion on application for writ of supervisory control, see 21 Mont. p. —, 69 Pac. 988.)

March 18, 1902.

Per Curiam.-

Upon further consideration, and of its own motion, the court does hereby vacate and set aside its judgment in said cause made and entered on the 13th day of March, 1902, annulling the judgment ini contempt as to the petitioner Sutton, ordering his release and exonerating bis bail, for the reason and upon tire ground) that the district court of the Second judicial district of the state of Montana in and for the county of Silver Bow, having jurisdiction of the subject-matter and of the person and to make the judgment and order sought to be reviewed on habeas corpus aided by certiorari, the supreme court may not, in this proceeding, determine whether the evidenlce adduced and certified to in the return on certio-rari tended to prove the contempt charged or tended to support the finding or judgment and order, declaring the petitioner Sutton guilty of contempt,

It is therefore ordered that the writs of habeas corpus and certiorari heretofore issued herein be and the same are hereby quashed, and the proceeding be and the same is hereby dismissed, with leave to the petitioner Sutton to apply to the supreme court, within twenty days hereafter, for a writ of supervisory control in the matter of such supposed contempt.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    No. 1,810.
    STATE ex rel. COLLINS, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    Wilt of supervisory control.
    Decided April 11, 1902.

      Mr. 8. 0. Herron, and Mr. Charles B. Saclcett, for Relator.
   Pee Cueiam.

Relator’s application for a writ of supervisory control herein! is denied.


text:
    No. 1,473.
    BOOTH, Respondent, v. McGOVERN et al., Appellants.

      Appeal from Bistmct Court, Silver Bow County.
    On motion to dismiss appeal.
    Decided April 15, 1902.

      Mr. William B. Carroll, for Appellants.

      Messrs. Forbis & Maltison, for Respondent.
   Pee Cueiam.

The motion to dismiss the appeal herein is hereby sustained and the appeal is dismissed.


author: Per Curiam.

text:
    No. 1,446.
    FRARY, Appellant, v. DWYER, Respondent.

      Appeal from District Court, Cascade County.

    (For former opinion, see ante, .page 414.)
    April 16, 1902.

      Mr. F. A. Merrill, for Appellant.

      Mr. -T. E. Brady, for Respondent.
   Per Curiam.

Upon the stipulation of W. S. Frary and counsel for respondent, this appeal is dismissed, without, prejudice, however, to any right counsel for appellant may have in the premises.

Mr. Justice Pigott, having’ been of counsel during the pendency of tills cause in the district court, takes no part in this order.


text:
    No. 1,732.
    In re QUINN’S ESTATE.

      Appeal from District Court, Silver Bow County.

    On motion to dismiss appeal.
    Decided April 29, 1902.

      Mr. Charles O’Donnell, for Appellant.

      Messrs. Mediation do Colter, for Respondent.
   Per Curiam.

The motion to dismiss this appeal is hereby sustained and the appeal is dismissed.


text:
    No. 1,821.
    In re APPLICATION OF T. J. WALSH, ON BEHALF OF JOHN F. FORBIS AND L. ORVIS EVANS, for a Writ of Habeas Corpus, and in Aid Thereof a Writ or certiorari.

      Habeas corpus — Certiorari.
    Decided April 29, 1902.

      Mr. T. J. Walsh, for Petitioners.

      Mr. John Lindsay, for Bespondent.
   Per Curiam.

Upon examination of the judgment of the district court whereby the petitioners were found guilty of contempt, and in pursuance of which they were committed to the custody of the sheriff of Silver’ Bow county, the court finds that the same is void, in that the said judgment, being’ as for a contempt in the joresence of the court, does not recite any fact showing that a contempt had been committed: It is therefore ordered that the judgment be annulled; that the petitioners be discharged from custody, and that their bail be exonerated.


text:
    No. 1,638.
    BURKE, Appellant, v. HAMILTON et al., Respondents.

      Appeal from District Court, Fergus County.

    On motion to dismiss appeal.
    Decided May 14, 1902.

      Messrs. Oort & Worden, for Appellant.

      Mr. F. E. Smith, for Eespondents.
   Per Curiam.

The motion to dismiss this appeal is hereby sustained and the appeal is dismissed.


author: Pee, Curiam.

text:
    No. 1,823.
    BOEHLER, Respondent, v. HANSON et al., Appellants.

      Appeal from District Court, Missoula County.

    On motion to dismiss appeal.
    Decided May 15, 1902.

      Messrs. Duncan & Draffen> and Mr. C. B. Nolan, for Respondent.
   Pee, Curiam.

Respondent's motion is granted, and tlie appeal is accordingly dismissed, for the reason that no transcript has been filed herein.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. OWEN W. ARRINGTON, JR., Defendant and Appellant.
    No. 92-463.
    Submitted on Briefs June 10, 1993.
    Decided August 10, 1993.
    50 St.Rep. 905.
    260 Mont. 1.
    858 P.2d 343.

      For Defendant and Appellant: J. Robert Planalp, Landoe, Brown, Planalp & Braaksma, Bozeman; Larry Jent, Williams, Jent & Cockins, Bozeman.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an Eighteenth Judicial District Court, Gallatin County, jury verdict in a negligent homicide action. We affirm.

We restate the issues on appeal:

I. Did the trial court err in denying the defendant’s motion to dismiss?
A. May the trial court consider the defendant’s statements in determining probable cause to file an information?
B. Was the state’s affidavit sufficient to support probable cause to file an information?
II. Was there sufficient evidence to support the jury’s verdict of guilty?
III. Did the trial court properly instruct the jury on the issues of causation and negligence?
IV. Should the testimony of the highway patrol officer have been excluded?

The defendant met a friend, Frank Ahrendes, at Frank’s place of business on the afternoon of August 8, 1991. The men visited for a while and then proceeded to Little John’s, a Bozeman tavern for a couple drinks. They stayed there for approximately one hour, each having two tall “mist” drinks. Then the defendant drove Frank home where the two visited briefly.

At about 6:30, the defendant arrived alone at Willie’s Saloon, also in Bozeman. The bar owner served the defendant ice water and informed him that his wife had called. He called his wife from the bar owner’s private office and when he had finished the call, asked for another ice water. The bar owner stated that the defendant stayed at the bar until about 9:00, playing keno and drinking two drinks. The defendant left the bar and proceeded to the interstate going east to his home outside of Livingston.

Carol Dearinger and her husband, Laurence Dearinger were on a motorcycle trip through Montana. They stopped in Bozeman at about 8:30 p.m. on the evening of August 8, 1991, to find a place to spend the night, but they could not find a vacancy. They drove through the city and eventually departed on the eastbound interstate. As they headed out of town, Mrs. Dearinger thought she might get cold so she asked her husband to pull over so she could retrieve her coat from the trailer the motorcycle was pulling.

She stated that her husband pulled over onto the shoulder of the road, as far as he could, without going into the ditch, and he got off the motorcycle. He proceeded to the trailer, and removed her jacket, returned to the left side of the motorcycle and handed her the jacket. He then turned and started back to the trailer. He had walked about 3 to 4 feet when Mrs. Dearinger heard “a loud crash and a swish, and the motorcycle was laying over on its side.”

Mrs. Dearinger stated that she looked around, did not see anyone, so ran to the front of the motorcycle and saw her husband lying on the ground between the motorcycle and the fogline. She tried to flag down some passers by for assistance. Soon, people arrived and lent what assistance they could in terms of comforting Mrs. Dearinger and conducting first aid upon Mr. Dearinger.

Tim Del Camp, the first witness on the scene, stated that Mr. Dearinger’s leg was almost completely severed and his chest was deformed and disfigured. He was able to get a rapid pulse when he first came to Mr. Dearinger’s aid but later was unable to find a pulse. A woman who arrived later knew first aid and was able to get a pulse in his neck. The bystanders continued to render what aid they could until officials arrived.

Meanwhile, another woman who had arrived on the accident scene shortly after Del Camp, became ill upon seeing Mr. Dearinger and walked away from the accident scene. She saw a man standing away from the accident and asked him if he knew what happened. He stated, ‘T hit him. I didn’t see him. I hit him.” She described his clothes as a white shirt and blue pants. She said he smelled of alcoholic beverages and had glassy eyes. Shortly after she spoke with him, he walked away toward a vehicle parked eastbound of the accident.

The deputy coroner, the ambulance and the police arrived at the scene not long after bystanders had gathered. They surveyed the scene and examined the body. The deputy coroner and a deputy sheriff tried CPR for a short time but could not get any pressure back after putting breath into his body. A minute or two after starting CPR they covered the body, and the deputy coroner pronounced him dead.

Meanwhile, other police officers began questioning the bystanders to determine if there were any eyewitnesses to the accident and they determined there were none. They also started to investigate the scene and gather evidence. Officer Carol Schumacher, a highway patrol officer, made a number of measurements, took photographs and used her evidence later to determine how the accident occurred.

Officer Schumacher took a photograph of a 1989 white Toyota Camry which was parked eastbound not far from the scene of the accident with its headlights on and keys in the ignition, though the car was not running. The car was parked “on the very outside edge of the traffic lane.” The car was damaged on the right front side and was blood splattered.

Police officers started to look for the owner of the white car, searching for anyone on foot near the area of the accident. The police determined that the vehicle was registered and owned by Owen Arrington, Jr. After checking the vehicle registration, police Officer Bill Dove called Mrs. Arrington, the defendant’s wife, to report that their car had been involved in an accident. She reported that her husband was in possession of the vehicle at that time although their daughter usually drove the Canary.

Mrs. Arrington telephoned her father-in-law and related the information from the police officer. Owen Arrington, Sr., then traveled to a number of places trying to find the defendant. Finally, sometime after 6:00 a.m., Mr. and Mrs. Arrington, Sr., found him near the Frontage Road heading toward Bozeman in an area south of the interstate.

The defendant told his father he had been in an accident but he really did not know what had happened. Mr. Arrington, Sr. took his son to the police station where the defendant made a number of statements about the accident to Officer Dove, a City of Bozeman police officer.

The defendant was ultimately charged with negligent homicide and leaving the scene of an accident. At a jury trial in the Eighteenth Judicial District Court, Gallatin County, the defendant was found guilty. This appeal followed.

The standard of review for discretionary trial court rulings is whether there has been an abuse of discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604.

I. MOTION TO DISMISS

The defendant argues that the State’s affidavit for leave to file an information fails to establish probable cause and his motion to dismiss should have been properly granted. Further, he contends that extrajudicial statements he made cannot be used to support a finding of probable cause. The State asserts that the trial court could properly consider the defendant’s statements but even without his statements, the affidavit was supported by sufficient evidence.

A. DEFENDANT’S STATEMENTS

The defendant cites § 45-5-111, MCA, for the proposition that “the State must prove each element, including in this case, the identity of the perpetrator, by evidence independent of any extrajudicial statement by the defendant.” Section 45-5-111, MCA, provides as follows:

In a homicide trial, before an extrajudicial confession may be admitted into evidence, the state must introduce independent evidence tending to establish the death and the fact that the death was caused by a criminal agency.

Although this Court agrees that the State must prove each element of the offense, § 45-5-111, MCA, pertains to a homicide trial, not pre-trial processes. “In construing a statute, it is our function as an appellate court to ascertain and declare what in terms or in substance is contained in a statute and not insert what has been omitted.” State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903. The statute merely prohibits admission of a defendant’s confession at trial prior to the introduction of certain specified independent evidence; it does not relate in any way to use of the defendant’s statements in establishing probable cause for leave to file an information.

Moreover, Montana case law confirms that the defendant’s statements may be used in an affidavit to support the filing of an information. In State v. Hallam (1978), 175 Mont. 492, 499, 575 P.2d 55, 60, this Court concluded that an admission by the defendant that he set the fire, along with evidence that the fire was intentionally set, “was clearly sufficient to establish probable cause” to authorize leave to file an information. In the present case, there is far more independent evidence to support any admissions made by the defendant, including evidence that the car the defendant, who had been drinking, was known to have been driving was found at the scene and was damaged. We conclude that the defendant’s statements may be included as evidence to support probable cause for filing an information.

B. SUFFICIENCY OF STATE AFFIDAVIT

Section 46-11-201, MCA, governs the filing of an information and provides in pertinent part:

(1) The prosecutor may apply directly to the district court for permission to file an information against a named defendant...
(2) An application must be by affidavit supported by evidence that the judge or chief justice may require. If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge or chief justice shall grant leave to file the information, otherwise the application is denied.

Montana case law defines the evidence sufficient to establish probable cause.

An affidavit in support of a motion to file an information need not make out a prima facie case that a defendant committed an offense. A mere probability that he committed the offense is sufficient. Similarly, evidence to establish probable cause need not be as complete as the evidence necessary to establish guilt....the determination whether a motion to file an information is supported by probable cause is left to the sound discretion of the trial court. Thus, the scope of review is one of detecting abuse in the exercise of that discretion.

State v. Bradford (1984), 210 Mont. 130, 139, 683 P.2d 924, 928-929. (Citation omitted.) See also State v. Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334.

In the present case, even absent use of the defendant’s statements as evidence to support probable cause, there is sufficient evidence to empower a judge to grant leave to file an information. There was evidence that the defendant was driving his family’s white Toyota Camry and this vehicle was found near the scene of the accident. The affidavit stated that he had been drinking before the accident. The defendant was found walking several miles east of the accident scene in an unsteady and disheveled condition. When he arrived at the police station, he was dressed in blue jeans, a white t-shirt and cowboy boots, which was similar to the description given by one of the witnesses who arrived shortly after the accident and observed a man loitering near the accident scene.

This evidence is more than enough to warrant the granting of leave to file an information and this evidence is only bolstered by the defendant’s statements to various people concerning the accident. A man matching his description was seen at the accident and he stated that “I didn’t see him, I didn’t see him, I just hit him.” A bystander smelled alcohol on his person and asked him, “you hit him sir?” and he said, “yes, but I didn’t see him.”

When the defendant’s father found him, he told his father “that there had been an accident and that he could not remember about it.” He further commented that he had a couple drinks with a friend early in the afternoon prior to the accident. He further explained that “ ‘he knew that he had hit something and that he had seen a man by the motorcycle’ and that ‘from that point on he just lost it.’ ” He related to his father that he did not know why he did not remain at the scene but when he saw the victim, he became sick and disoriented.

When the defendant’s father took him to the Bozeman police station, he made the following statements to a police officer:

[T]o the best of my knowledge I was coming up out on approach, I pulled out, I was signalling to come out on the interstate and there was you know, a lot of traffic, not really heavy, and I started down the interstate I wasn’t going you know excessively fast, I think it was around 55, maybe 58 and cars were coming behind me and I was driving my daughter’s car, which I’m not familiar with, and so I reached over to shut the air-conditioning off, and he was there, I mean, I just never seen [sic] the guy, I didn’t, I was looking at the lights coming up behind me and looked at the air-conditioner or something, I just never seen [sic] him...

The defendant continued:

I didn’t even know what I’d hit, I knew I’d hit something, sol pulled over, and parked but I couldn’t even seen [sic] anything back there that I’d hit so I got out and ran back and a lady yelled, they were yelling for 911 up on the hill, and a lady got out and she said she was bringing a first aid kit and I got to the guy and there was [sic] other people there and I just, I just went berserk I started throwing up and the next thing I knew I was out in the middle of a field I was, I didn’t know what the hell was going on anymore. I just, I lost everything, I just, I have no recollection why I left, I was there, and I just don’t know, I have no explanation for it.

The sum total of all the evidence in the affidavit provides at least the “mere probability’ that the defendant committed the offense. We conclude that the trial court did not abuse its discretion in finding the State’s affidavit sufficient and denying the motion to dismiss.

II. SUFFICIENCY OF EVIDENCE FOR JURY VERDICT

The defendant claims that the evidence presented was not sufficient to find him guilty. He also contends that the State did not properly identify the man at the scene of the accident, who stated that he hit the victim, as the defendant. The State counters that there was sufficient evidence to support the jury verdict. We agree with the State.

The standard of review regarding the sufficiency of the evidence is “[whether,] after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Medina (1990), 245 Mont. 25, 33, 798 P.2d 1032, 1037.

The State provided the following evidence to support the defendant’s guilt. A bartender from Little John’s and the bar owner of Willie’s Saloon stated that the defendant was served alcoholic beverages on the evening of the accident. A friend of the defendant’s also testified to drinking with the defendant late in the afternoon on the day of the accident and being driven to his home by the defendant in a 1989 white Toyota Camry.

Testimony showed that this vehicle was found near the scene of the accident in which the decedent, Laurence Dearinger, was killed. The vehicle was owned and driven by the defendant on that evening. The car had sustained damage to the right front end and was blood splattered. One of the vehicle’s side mirrors had broken off and a similar side mirror had been found at the accident scene. When the vehicle was found, the lights were on and the key was in the ignition but the car was not running. Arrington could not be found until he was located wandering a hillside in the general area of the accident the next morning.

Testimony elicited the following statements made by the defendant. When the defendant was found by his father he told his father that he had been in an accident. He further stated that “I hit something, and I went back. I stopped and I went back and there was a man lying beside the motorcycle.” Also, he informed his father that when he saw the man lying on the ground, he became physically ill and had no recollection of what happened thereafter except that he found himself wandering near the area of a KOA campground.

When the defendant arrived at the police station, he reported to Officer Dove that he had been driving his daughter’s vehicle about fifty-five to fifty-eight miles per hour onto the interstate “from the on-ramp at the east end of Bozeman, and that he was driving his daughter’s vehicle which he was not very familiar with. And he had leaned over to shut off the air conditioning, and as he looked up he hit something and didn’t realize what he had struck, continued up the road a short distance and pulled over.” He further stated that he walked back to the accident scene, saw Mr. Dearinger and became ill. He said “I felt that I’d probably killed him, and I didn’t know how many people I’d killed....”

When the defendant’s statements and the evidence deduced from the several witnesses are viewed in their totality, there is sufficient evidence for any rational trier of fact to have found the essential elements of negligent homicide beyond a reasonable doubt.

The defendant, however, argues that the State “failed to prove the corpus delicti of the offense because it was unable to identify the defendant as the driver without [defendant’s] statement.” He contends that the trial court improperly admitted the defendant’s statements before the corpus delicti of the negligent homicide was established, citing § 45-5-111, MCA. Section 45-5-111, MCA, states that:

In a homicide trial, before an extrajudicial confession may be admitted into evidence, the state must introduce independent evidence tending to establish the death and the fact that the death was caused by a criminal agency.

According to the statute, before an extrajudicial confession is admitted into evidence, the State is only required to introduce two elements — that there was a death and that the death was caused by a criminal agency. It does not require independent evidence of the identity of the perpetrator. As stated earlier, we will not insert into a statute, what has been omitted. Crane, 784 P.2d at 903.

Montana case law also supports the conclusion that the identity of the perpetrator is not an element of the corpus delicti. In State v. Kindle (1924), 71 Mont. 58, 64, 227 P. 65, 67, we stated that “[i]n a prosecution for murder, proof of the corpus delicti does not necessarily carry with it the identity of the slain nor of the slayer.” Although this is a negligent homicide action rather than a deliberate homicide, the reasoning in Kindle still applies. The essential elements of the corpus delicti are, as stated in § 45-5-111, MCA, establishing the death and the fact that the death was caused by a criminal agency, nothing more.

Further, regarding § 45-5-111, MCA, in State v. Gould (1985), 216 Mont. 455, 470-471, 704 P.2d 20, 30, we concluded that:

[tjhere must be some independent evidence establishing the corpus delicti, but it need not of itself be sufficient beyond a reasonable doubt, as, once the independent evidence is given, the confession maybe considered with the facts and circumstances in evidence in determining whether the corpus delicti is established... [Emphasis provided.]

The evidence presented by various State witnesses, independent of the defendant’s statements, is sufficient to establish the corpus delicti — that is to establish the death of the victim, and “the fact that the death was caused by a criminal agency.” Section 45-5-111, MCA. Independent evidence establishes that the defendant was in possession of the vehicle which struck and killed the decedent and that he had several drinks before he drove onto the interstate on the evening of August 8. Further evidence showed he was straddling the fogline although there was sufficient light to see approximately 3/4 of a mile ahead. This evidence qualifies as “some independent evidence establishing the corpus delicti.” Gould, 704 P.2d at 30. At that point, the defendant’s statements may be considered with “the facts and circumstances in evidence” to determine whether the corpus delicti has been established. Gould, 704 P.2d at 30. We conclude that the evidence does sufficiently establish the corpus delicti of negligent homicide at issue here.

In conclusion, the defendant’s statements, together with the evidence from other witnesses, were sufficient to support the jury verdict. The trial court did not abuse its discretion in determining the jury verdict was supported by substantial evidence.

III. JURY INSTRUCTIONS

The defendant argues that the trial court failed to properly instruct the jury on the issues of causation and negligence. He contends that there should have been an instruction requiring the jury to find that “[t]he defendant was driving under the influence of alcohol as defined in these instructions ...” because an essential element (criminal negligence) was dependent upon intoxication.

However, intoxication is not an essential element of negligent homicide. Section 45-5-104(1), MCA, states that “[a] person commits the offense of negligent homicide if he negligently causes the death of another human being.” The two elements of the crime include whether the defendant caused the death of the decedent and whether the defendant acted negligently.

Intoxication is merely one of the factors to be considered in determining whether the homicide was caused by the negligent actions of the actor. Also, a review of the information makes it clear that the State did not charge the defendant with driving under the influence, therefore an instruction regarding intoxication was not warranted.

We have previously stated what is necessary for proper jury instructions:

At a minimum, the District Court must explain or define the crime for the jury. In determining whether the instructions did this, we are guided by certain settled principles. First, we must view the instructions as a whole, and we will find no error if the instructions as a whole fully and fairly instruct on the law applicable to the case.

State v. Lundblade (1981), 191 Mont. 526, 529, 625 P.2d 545, 548. (Citations omitted.) In the instant case, a review of the instructions indicates that the elements necessary to find negligent homicide were fully explained to the jury. In addition, the jury was given a detailed definition of the degree of negligence required to find the defendant guilty of negligent homicide. No further instructions were required. The trial court properly instructed the jury in this action and did not abuse its discretion.

IV. EXPERT TESTIMONY

The defendant contends that it was reversible error to exclude a report made by Officer Schumacher reconstructing the accident but then let her testify as to mathematical calculations contained in the report. He states that he was not informed at the time his counsel interviewed the officer that she would testify regarding accident reconstruction. He further argues that her testimony was speculative and without foundation and should have been excluded. The State asserts that the trial court did not abuse its discretion when it allowed Officer Schumacher to testify. Moreover, it maintains that error cannot be founded upon subjects not in the record.

A. TESTIMONY FROM THE EXCLUDED REPORT

Officer Schumacher’s report was properly excluded because it was not presented to the defendant within the proper discovery deadline. Her report included mathematical calculations regarding the point of impact and the speed of the defendant’s vehicle. The trial court also determined that she could not testify concerning information contained in the calculations from the report. Upon review of the record, we determine that Officer Schumacher’s testimony did not concern any information from the report’s mathematical calculations. She properly stayed within the limits set by the trial court.

The officer testified to the conditions at the time of the accident, such as amount of light. She used a diagram to assist the jury in visualizing the accident. She testified about the conclusions she had drawn from the measurements and data collected at the time of the accident, including her opinion of the relative positions of the car, the motorcycle and Mr. Dearinger at the point of impact. Finally, she opined that the defendant had ample opportunity to stop or in some way, avoid the accident. None of this testimony included the mathematical calculations she prepared for the excluded report. The officer could properly testify as to her conclusions if she had the proper qualifications as an expert.

B. TESTIMONY CONCERNING ACCIDENT RECONSTRUCTION

The defendant contends that Officer Schumacher did not hold herself out as an expert in accident reconstruction when she was interviewed on April 3, 1992, and that her testimony at trial was a surprise. However, Officer Schumacher testified that she had always been in a position to testify concerning reconstruction of the accident but when she tried to provide her opinions at her interview with the defense on April 3, 1992, she was not given the opportunity to do so by the defendant’s counsel. She also stated that she never said she was not going to reconstruct the accident but that she had not reconstructed the accident at the time of the interview with defense counsel.

We note that the defendant did not provide this Court with a transcript of the April 3, 1992 interview of Officer Schumacher for our own examination. This Court is left to speculate as to why the defendant would argue that the officer’s testimony went beyond the parameters of the interview and then fail to provide the necessary transcript of that interview for our review.

Under the Montana Rules of Evidence, the trial court is given wide latitude in determining whether to admit opinion testimony of investigative officers. Leeway is allowed in such instances, and provided that the cross examiner is given adequate opportunity to elicit any assumptions or facts underlying the expert’s opinion, the weight to be given the testimony is for the trier of fact to determine. [Emphasis supplied.]

Campbell v. Johnson (1991), 251 Mont. 12, 15-16, 823 P.2d 237, 239, citing Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077.

C. OFFICER SCHUMACHER’S QUALIFICATIONS

The defendant also asserts that the officer’s testimony is speculative and without foundation. We disagree. There is no question that Officer Schumacher was well qualified to testify as an expert regarding traffic accidents. She spends approximately 1/4 to 1/3 of her job investigating accidents. She graduated from the highway patrol recruit academy in 1978 and has been an officer since 1979. She had additional training in 1985,1986 and 1987 in on-scene accident investigation and technical accident investigation. In addition, she received 80 hours of training in accident reconstruction in 1989. She has personally investigated several hundred traffic accidents and testified in hundreds of traffic accident cases. She is well qualified to testify to accident investigations and to accident reconstruction. She has the training and experience to testify regarding her investigative work and conclusions based upon her investigations.

Not only was the officer well qualified to testify regarding her reconstruction of the accident, the defendant was able to fully cross-examine her on her conclusions and she was listed as an expert on the State’s witness list.

We conclude that the trial court did not abuse its discretion when it allowed Officer Schumacher to testify. She did not provide information from the excluded report nor did she testify concerning any area in which she did not have sufficient expertise.

AFFIRMED.

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


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF ANITA L. MILLER, Petitioner and Respondent, and MICHAEL G. MILLER, Respondent and Appellant.
    No. 92-602.
    Submitted on Briefs April 1, 1993.
    Rehearing Denied Sept. 16, 1993.
    Decided August 10, 1993.
    50 St.Rep. 912.
    260 Mont. 15.
    858 P.2d 338.

      For Appellant; James D. Elshoff, Great Falls.
    For Respondent; J. Cort Harrington, Jr., Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Michael Miller appeals from the findings of fact, conclusions of law and decree of dissolution of marriage entered by the First Judicial District Court, Lewis and Clark County, and from the denial of his motion for relief from judgment. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court abuse its discretion by failing to vacate the hearing pursuant to its scheduling order?

2. Did the District Court commit “jurisdictional” errors in dissolving the marriage?

3. Did the District Court err in distributing the marital property?

4. Is Michael entitled to relief from the dissolution decree pursuant to Rule 60(b), M.R.Civ.P.?

Michael and Anita Miller separated in May of 1990 after being married for approximately eleven months. Anita filed a petition for dissolution on April 30, 1992. She alleged that the marriage was irretrievably broken and that Michael was the father of her son, Michael Carter Miller (the child), and requested custody, child support, and an equitable distribution of the marital property.

Michael, a pilot with the U.S. Air Force, was stationed in Korea for the duration of the dissolution proceedings. In a response filed May 5, Michael admitted that the marriage was irretrievably broken but denied paternity. He requested that the court require blood tests to establish paternity pursuant to § 40-6-112, MCA.

Following a June 5 scheduling conference, the court issued an order scheduling an October 8 hearing. The order also set dates for submission of various information and proposals and for completion of discovery. Finally, the order provided that parties or attorneys failing to comply with the order would be subject to sanctions and, further, that the hearing would be vacated if either party did not comply with the filing deadlines. Michael timely filed his financial declaration. Neither party complied with any of the other deadlines.

On July 13, the District Court ordered Michael to submit to blood testing in Helena. Anita and Michael were to share the costs of the tests, with reimbursement to the parly prevailing on the paternity issue. The court later allowed Michael to have the blood test performed in Alabama, where he was on temporary duty.

On October 8, Anita filed proposed findings of fact and conclusions of law and a notice conceding the issue of paternity. She appeared with counsel and testified at the scheduled hearing. Neither Michael nor his attorney appeared. On October 15, the District Court entered findings of fact, conclusions of law and decree of dissolution of marriage.

Michael subsequently moved for relief from judgment pursuant to Rule 60(b), M.R.Civ.P. Because the District Court did not rule on the motion within 45 days, it was deemed denied pursuant to Rule 60(c), M.R.Civ.P. This appeal follows.

Did the District Court abuse its discretion by failing to vacate the hearing pursuant to its scheduling order?

Michael contends that Anita’s noncompliance with the court-ordered deadlines entitled him to rely on the provision of the order that the hearing would be vacated. On that basis, he contends that the District Court erred in holding the October 8 hearing. Discretionary acts and rulings of the district court — such as whether to hold or vacate a hearing — will not be reversed absent an abuse of discretion. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.

Michael did not request that the hearing be vacated. Thus, he essentially argues that the District Court was required to do so sua sponte. Michael cites no authority to support this argument, nor do we find any basis for compelling the court to execute enforcement provisions of a scheduling order absent a party’s request. Furthermore, neither Michael nor his counsel appeared and objected to holding the hearing of which they had notice since June. We will not put a district court in error for a procedure in which the appellant acquiesced, participated, or to which appellant made no objection. Marriage of Smith (1990), 242 Mont. 495, 501, 791 P.2d 1373, 1377.

We hold that the District Court did not abuse its discretion by failing to vacate the hearing sua sponte.

Did the District Court commit “jurisdictional” errors in dissolving the marriage?

Michael asserts a number of errors in the District Court’s findings, conclusions and decree which he characterizes loosely as jurisdictional defects. These assertions of error are not well taken.

First, Michael contends that the District Court’s findings regarding domicile and irretrievable breakdown are unsupported in the record because Anita did not testify specifically that she had been domiciled within the state for the requisite number of days and that the marriage was irretrievably broken. We do not agree with the thrust of Michael’s contention that testimony repeating the language of the statute is required to support the findings.

Anita testified that she had lived in Montana since May of 1990. This testimony supports the District Court’s finding that she was domiciled in Montana for more than 90 days prior to the court’s making of the finding. Thus, the jurisdictional requirement of § 40-4-104(l)(a), MCA, is satisfied.

Anita also testified that she separated from Michael in May of 1990. This testimony establishes that she and Michael had lived separate and apart for more than 180 days before the commencement of the proceedings; it constitutes substantial evidence to support the court’s finding that the marriage was irretrievably broken under § 40-4-104(l)(b)(i), MCA.

Michael mistakenly relies on Marriage of Kraut (1985), 215 Mont. 170, 696 P.2d 981, for his assertion that a finding of irretrievable breakdown can be supported only by express testimony to that effect. Kraut requires only that a district court’s finding of irretrievable breakdown be supported by evidence presented at a hearing that the parties lived separate and apart for at least 180 days or that serious marital discord exists which adversely affects the attitude of one or both of the parties. Kraut, 696 P.2d at 982-83. Here, the hearing and evidence requirements of Kraut were met.

Michael also argues, without any citation to authority, that the court committed a jurisdictional error by dissolving the marriage without testimony indicating whether Anita was pregnant. Apetition for dissolution of a marriage must set forth whether the wife is pregnant. Section 40-4-105(l)(d), MCA. Anita’s petition complied with this statute. There is no requirement for testimony or findings on this subject.

Finally, Michael contends that the Soldiers’ and Sailors’ Civil Relief Act (the Act), 50 U.S.C. App. §§ 501 et seq., precludes the District Court from dissolving the marriage and distributing the marital property without giving him an opportunity to defend against Anita’s claims. He cites no specific provision of the Act to support this contention.

The only provision of the Act which arguably might bar the District Court from entering the decree of dissolution due to Michael’s failure to appear at the hearing is § 520. That provision sets forth procedural safeguards and relief applicable when there is a “default of any appearance” by a defendant. 50 U.S.C. App. § 520(1).

The phrase “default of any appearance” has not been interpreted to include the failure of a defendant to appear at a single stage of the proceedings. A defendant must fail to make any appearance whatsoever in the proceedings culminating in the entry of a judgment in order to invoke the protections of § 520. Smith v. Davis (N.C. App. 1988), 364 S.E.2d 156, 158; Chenausky v. Chenausky (N.H. 1986), 509 A.2d 156, 158; and Cloyd v. Cloyd (Mo. Ct. App. 1978), 564 S.W.2d 337, 344.

The record reflects that Michael appeared in the dissolution proceedings. He filed a response and counterpetition, participated in the June 5 scheduling conference, moved the court to allow his blood to be drawn in Alabama, and filed a financial declaration. Because there was no “default of any appearance” within the meaning of § 520, the Soldiers’ and Sailors’ Civil Relief Act did not preclude the District Court from dissolving the marriage.

We hold that the District Court did not commit jurisdictional errors in dissolving the marriage and that the findings required by § 40-4-104, MCA, are supported by substantial evidence and are not clearly erroneous.

Did the District Court err in distributing the marital property?

Michael contends that the District Court erroneously found that he possessed a 1990 Dodge Charger pickup valued at $5,000, awarding $2,500 to Anita as compensation for her interest in the vehicle. He also contends that the court’s findings failed to identify property in Anita’s possession which belonged to his father. Our standard for reviewing factual findings of a district court relating to the division of marital property is whether the court’s findings are clearly erroneous. Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219.

Testimony at the hearing established Michael’s possession of the pickup and a value range of $8,000 to $10,000. The testimony was unrefuted. Furthermore, the court’s findings incorporated Anita’s testimony that she was in possession of certain personal property to which Michael was entitled; this property includes most of the items Michael now alleges belong to his father.

Michael did not appear at the hearing and did not present evidence to refute Anita’s testimony or provide a basis for different findings by the court. We hold that the District Court’s findings relating to the pickup and other property are supported by substantial evidence and are not clearly erroneous.

Is Michael entitled to relief from the dissolution decree pursuant to Rule 60(b), M.R.Civ.R?

Michael makes scattered and unfocused arguments that the District Court erred in refusing to grant his Rule 60(b), M.R.Civ.R, motion for relief from the decree. First, Michael asserts that he is entitled to relief from the decree based on Anita’s alleged failure to disclose minor assets and liabilities. He contends that these failures to disclose constituted extrinsic fraud justifying relief from the decree under Rule 60(b), M.R.Civ.R

Extrinsic fraud is an intentional act by the prevailing party that prevents the unsuccessful party from having a fair submission of the controversy. Brown v. Small (1992), 251 Mont. 414, 420, 825 P.2d 1209, 1213. The fraud must deny the unsuccessful party the opportunity to have a trial or to fully present her or his side of the case. Marriage of Barnes (1992), 251 Mont. 334, 337, 825 P.2d 201, 204, and Marriage of Lance (1981), 195 Mont. 176, 179-80, 635 P.2d 571, 574.

Here, no act by Anita — intentional or otherwise — prevented Michael from presenting evidence or having his day in court. Michael had the opportunity to present evidence regarding the extent and value of the marital assets and liabilities at the hearing; he failed to do so. We will not mandate Rule 60(b) relief over relatively minor disputes in property valuation or identification where a party does not appear and present evidence concerning such matters at hearing.

Michael also advances several arguments relating to the paternity issue which he characterizes as “other reasons justifying relief’ under Rule 60(b)(6), M.R.Civ.P. At the outset, we observe that a court may grant relief from judgment under subsection (6) only when extraordinary circumstances are found to exist. Koch v. Billings School District No. 2 (1992), 253 Mont. 261, 267-69, 833 P.2d 181, 185-86; Marriage of Castor (1991), 249 Mont. 495, 500, 817 P.2d 665, 668; and Marriage of Waters (1986), 223 Mont. 183, 187, 724 P.2d 726, 729.

Michael first argues that the case was not ready for litigation because Anita and the child had not submitted blood for testing. This argument is without merit since neither Anita nor the child were ever ordered to submit to blood tests.

Michael also argues that Anita “amended” her petition by conceding the paternity issue on the date of the hearing. On that basis, Michael contends that he was entitled to respond to the “amendment” within 10 days under Rule 15(a), M.R.Civ.P. Anita’s concession neither added nor removed a claim before the court. Testimony was given and the court determined that Michael was not the child’s father. Both the concession and the District Court’s determination were in accord with Michael’s position on the issue. Under such circumstances, the concession provides no basis for Rule 60(b) relief.

Finally, Michael argues that because he was the prevailing party on the paternity issue, the court erred by failing to require Anita to reimburse one-half of his expense in obtaining the blood tests pursuant to its July 13 order. While this may have been appropriately raised at the hearing or in proposed findings and conclusions, it is not an extraordinary circumstance justifying relief from the decree.

We hold that Michael is not entitled to relief from the dissolution decree pursuant to Rule 60(b), M.R.Civ.P.

Affirmed.

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


author: JUSTICE HUNT

text:
    THE STATE OF MONTANA ex rel. DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES, Plaintiff and Respondent, v. DONALD REESE, Defendant and Appellant.
    No. 91-581.
    Submitted on Briefs May 20, 1993.
    Decided August 17, 1993.
    50 St.Rep. 925.
    260 Mont. 24.
    858 P.2d 357.

      For Defendant and Appellant: Michael R. Tramelli, Great Falls.
    For Plaintiff and Respondent: Patrick L. Paul, Cascade County Attorney, Dean D. Chisholm, Deputy County Attorney, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Donald Reese appeals from an order of the Eighth Judicial District Court, Cascade County, lifting a stay of its order and ordering Reese to remove all but three junk vehicles from certain property pursuant to § 75-10-541, MCA (1987).

We affirm.

Reese presents three issues for this Court’s consideration which we consolidate as follows:

1. Should the default judgment entered by the clerk of court on May 11, 1989, against appellant be set aside?

2. Did respondent Department of Health and Environmental Sciences (DHES) violate Reese’s due process rights by not providing him with notice of the March 6, 1992, hearing?

On April 14,1989, the DHES, acting through the Cascade County Attorney’s office, filed a complaint against Reese for maintaining a motor vehicle wrecking facility, or motor vehicle graveyard, without a license issued by the DHES. Reese was served with the complaint on April 19,1989.

On May 9, 1989, Reese filed a letter addressed to the court and stated that “[t]he automobiles in question will be shielded from public view within 30 days.” On May 11, 1989, the DHES applied for entry of default judgment pursuant to Rule 55, M.R.Civ.P., and the clerk of court entered the default on the same day. Also, the DHES filed a motion with the court for default judgment.

Hearing was held on June 8, 1989, with the Deputy County Attorney representing the DHES and Reese appearing pro se. On June 21, 1989, the Court entered its findings of fact, conclusions of law, and order for default judgment. On May 14,1990, the court held a hearing to determine the appropriate relief to be granted. On May 17,1990, the court enjoined Reese from having more than three junk vehicles on the property and ordered Reese to remove them within 30 days. On June 15, 1990, Reese appealed the May 17, 1990, order of the District Court.

On November 13, 1990, this Court dismissed the appeal with prejudice because Reese did not prosecute his appeal. On February 5, 1991, the DHES motioned the District Court for a review hearing in the matter. The hearing was held on March 6, 1991. During this hearing, the court reiterated its order of May 17, 1990, and ordered Reese to remove all junk vehicles from the property by March 15, 1991. Reese failed to comply with the order. On March 25, 1991, the DHES removed 39 of the 50 or more vehicles on Reese’s property.

On March 27, 1991, Reese filed a motion to stay execution of the court’s order pending a hearing, which was granted. Hearing was held on the issue on August 30,1991. On September 4,1991, the court lifted the stay and ordered Reese to remove all junk vehicles except three. It is from this order that Reese appeals.

I.

Should the default judgment entered by the clerk of court on May 11, 1989, against Reese be set aside?

Reese contends that the default judgment of May 11,1989, should be set aside pursuant to Rule 60(b), M.R.Civ.R We disagree.

Rule 12, M.R.App.P., states that “[t]he dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.”

In United Bank of Pueblo v. Iverson (1974), 164 Mont. 473, 525 P.2d 21, the district court granted an initial motion for summary judgment which defendants appealed to this Court. The appeal was subsequently dismissed by request of the defendants. The defendants later filed a motion to vacate the summary judgment. The district court denied the motion for failure to prosecute. Defendants filed a second motion 18 months later based on Rule 60(b), M.R.Civ.P. The district court denied that motion also. On appeal this Court affirmed the denial stating:

The refusal cannot be revived for a second review by the filing of a second identical motion to vacate 18 months later. The first denial of defendants’ motion to vacate for the reason defendants failed to prosecute the same became the law of the case and binding on the parties. The matters necessarily adjudicated therein became res judicata. [Citation omitted.]

Iverson, 525 P.2d at 23.

In Libin v. Huffine (1950), 124 Mont. 361, 224 P.2d 144, the district court sustained defendants’ demurrer to plaintiffs’ amended complaint dismissing plaintiffs’ complaint. Plaintiffs appealed the decision to this Court. This Court dismissed the appeal for failure to prosecute. Six months later, plaintiffs filed another appeal. This Court stated:

Where as here an appellate court had unqualifiedly affirmed a judgment of the trial court, it would obviously and unnecessarily protract litigation to allow further or successive appeals from the judgment so affirmed. Such successive appeals in fact would be appeals attempted to be taken from the decision of the appellate court itself.

Libin, 224 P.2d at 146.

Here, the District Court entered a default judgment and Reese appealed. Reese failed to prosecute his appeal by ordering the necessary transcripts. Upon motion of the DHES, and without objection by Reese, this Court dismissed the appeal with prejudice. The dismissal affirmed the order of the District Court and became the law of the case. We affirm the decision of the District Court in refusing to set aside its May 11,1989, default judgment.

II.

Did the DHES violate Reese’s due process rights by not providing him with notice of the March 6, 1992, hearing?

Reese argues that he was denied procedural due process under the takings clause of the Fourteenth Amendment of the United States Constitution. The crux of procedural due process is that some form of hearing with notice of its availability must be had before a person is finally deprived of a property interest. Kennerly v. United States (9th Cir. 1983), 721 F.2d 1252, 1257. The hearing on March 6, 1992, did not have any effect on Reese’s property interests because his proprietary interests had already been litigated. With this Court’s dismissal of the appeal, the DHES had full authority to act upon the District Court’s order of May 17, 1990. The purpose of the March 6, 1992, hearing was to reiterate and inform Reese of the legal effect of the court’s order. It did not contemplate any substantive rights of Reese. “Due process does not require a new hearing on matters that are res judicata.” In the Matter of the Estate of Counts (1985), 217 Mont. 350, 355, 704 P.2d 1052, 1055.

We hold that the DHES did not violate Reese’s due process rights.

The DHES’s request for damages pursuant to Rules 32 and 33, M.R.App.P., is denied.

We affirm the decision of the District Court.

JUSTICES HARRISON, TRIEWEILER, GRAY and WEBER concur.


text:
    BLAINE BANK OF MONTANA, a Montana Corporation, Plaintiff and Respondent, v. RUSSELL HAUGEN, DONN R. HAUGEN, and DELL HAUGEN, d/b/a QUALITY ENTERPRISES, a Montana partnership, and DORIS HAUGEN, Defendants and Appellants.
    No. 92-430.
    Submitted on Briefs March 25, 1993.
    Decided August 17, 1993.
    50 St.Rep. 927.
    260 Mont. 29.
    858 P.2d 14.

      For Defendants and Appellants: Chris R. Young, Young, Brown & Richardson, Havre.
    For Plaintiff and Respondent: Ward E. Taleff, John P. Paul; Alexander, Baucus & Linnell, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Russell and Donn Haugen appeal from an order of the Seventeenth Judicial District Court, Blaine County, denying their motion to preclude entry of deficiency judgment. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err by allowing the Haugens to file an action to recover damages, if any, resulting from a judicial foreclosure sale which violated § 25-13-704(2), MCA, instead of precluding deficiency judgment?

2. Did the District Court err by declining to preclude deficiency judgment based on its determination that the Haugens did not own personal property located in the Shanty Motel when it was sold by Blaine Bank?

In May 1984, Blaine Bank of Montana (Blaine Bank) loaned $113,868.16 to Russell Haugen. The promissory note listed the borrower as “Russell Haugen d/b/a Quality Enterprises.” To secure the loan, Blaine Bank obtained and perfected a security interest in vehicles and equipment owned by Russell and Doris Haugen (the Haugens). As further security for the loan, the Haugens assigned their purchasers’ interest in a 1981 contract for deed between themselves and S-M Corporation for the purchase of the Shanty Motel located in Havre, Montana. They also executed a quit claim deed for the motel in favor of Blaine Bank to be recorded in the event of default.

On February 24, 1988, Blaine Bank filed a complaint against Russell Haugen, his sons Donn and Dell Haugen, and Quality Enterprises, a partnership allegedly formed by the three men. Blaine Bank asserted that the defendants had defaulted on the May 1984 loan. It elected to accelerate the outstanding debt and declared the entire unpaid balance, totaling $116,621.12, due.

Blaine Bank also sought to foreclose its security interest in the collateral and requested that Russell, Donn, and Dell Haugen be required to pay any resulting deficiency. The complaint named Doris Haugen as a defendant on the basis of her interest in the collateral. Russell, Donn, and Doris Haugen asserted a number of affirmative defenses and counterclaims.

A jury trial was held on November 13, 1989. The jury returned a verdict against all the named defendants and against Russell, Donn, and Doris Haugen on their defenses and counterclaims. The District Court subsequently entered judgment in favor of Dell Haugen, having determined that he was not a partner in Quality Enterprises, and therefore, not liable on the promissory note.

On January 17, 1990, the District Court filed a judgment and decree of foreclosure awarding Blaine Bank $132,427, representing the principal and interest on the debt, plus costs and attorney fees. The court also foreclosed the Haugens’ interest in the contract for deed and personal property collateral, directed that the collateral be sold at a judicial foreclosure sale, and required Russell and Donn Haugen to pay any deficiency. No appeal was taken.

Blaine Bank subsequently purchased the Haugens’ purchasers’ interest in the contract for deed for $60,700 at a judicial foreclosure sale held April 18. It also purchased the vehicles and equipment at a judicial foreclosure sale held August 30 for $18,000; although this sale was held in Blaine County, virtually all the property was located in Missoula County. A deficiency remained after the proceeds from the sales were applied to the judgment.

In addition to defaulting on the Blaine Bank loan, the Haugens had defaulted on the contract for deed for purchase of the Shanty Motel. They failed to cure their default and relinquished possession of the motel to Henry and Sandra Erickson (the Ericksons), successors to S-M Corporation, in January 1990.

On April 16, 1990, two days prior to purchasing the Haugens’ purchasers’ interest in the contract for deed at the foreclosure sale, Blaine Bank agreed to purchase the Ericksons’ sellers’interest in the contract and the “real and personal property comprising the Shanty Motel.” Although no sale documents are of record, Blaine Bank apparently purchased the motel property according to the terms of the April 16 agreement. In October 1991, Blaine Bank sold the Shanty Motel, including the personal property located inside it, to Narayan and Vibhuti Joshi (the Joshis).

The case presently before us results from the Haugens’ second attempt to preclude Blaine Bank from obtaining a deficiency judgment. The District Court previously had granted the Haugens’motion for relief from judgment on the basis that Blaine Bank’s recording of the quit claim deed given with the Haugens’ assignment of their purchasers’ interest in the contract for deed eliminated the bank’s right to a deficiency judgment under the terms of the assignment. Blaine Bank appealed and we reversed and remanded for further proceedings, concluding that the recording of the quit claim deed had no legal effect because the Haugens had forfeited all their rights in the motel property with the prior cancellation of the contract for deed with the Ericksons. Thus, at the time of the decree of foreclosure of the Haugens’ interest in the contract for deed, the Haugens had no interest to be foreclosed. Blaine Bank of Montana v. Haugen (1991), 249 Mont. 381, 816 P.2d 447 (Haugen I).

On remand, the Haugens again moved the District Court to preclude deficiency judgment, arguing that the sale of the vehicles and equipment violated § 25-13-704(2), MCA, and was not commercially reasonable under § 30-9-504(3), MCA. They also asserted that the deficiency judgment should be precluded because Blaine Bank sold their personal property, consisting of motel furniture and bedding, located inside the Shanty Motel. The District Court denied the motion to preclude deficiency judgment, but fashioned an alternative remedy for the unlawful sale of the vehicles and equipment. The Haugens appeal.

Did the District Court err by allowing the Haugens to file an action to recover damages, if any, resulting from a judicial foreclosure sale which violated § 25-13-704(2), MCA, instead of precluding deficiency judgment?

The District Court determined that the sale of vehicles and equipment violated § 25-13-704(2), MCA, because the property was capable of manual delivery but was not within the view of those attending the sale. In fashioning a remedy, the corut determined that setting aside the sale was impractical here due to the sale of the property to various purchasers in various locations and that precluding the deficiency judgment altogether was too severe a penalty for Blaine Bank’s wrongdoing. The court allowed the Haugens to file an action for any damages they suffered by reason of the unlawful sale.

The Haugens assert that a judicial foreclosure sale conducted under Montana’s execution statutes, §§ 25-13-101, et seq., MCA, is analogous to a secured creditor’s sale of collateral under § 30-9-504(3), MCA, of Montana’s Uniform Commercial Code (UCC). On that basis, they contend that the UCC remedy for commercially unreasonable sales should apply to preclude Blaine Bank from obtaining a deficiency judgment. They rely on Wippert v. Blackfeet Tribe (1985), 215 Mont. 85, 695 P.2d 461, Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 731 P.2d 327, and Bank of Sheridan v. Devers (1985), 217 Mont. 173, 702 P.2d 1388, which are all UCC cases.

Initially, we observe that the District Court did not determine whether the sale of the vehicles and equipment was commercially reasonable under the UCC. The court determined only that the sale violated § 25-13-704(2), MCA, and fashioned its remedy accordingly. The Haugens do not contend that the District Court erred in declining to address the applicability of the UCC’s commercially reasonable standard to the sale. Indeed, they concede that the sale of the vehicles and equipment was governed by the execution statutes and not the UCC.

Despite their concession that the UCC did not govern the sale, the Haugens urge this Court to require the District Court to apply the UCC remedy barring deficiency judgment to a violation of § 25-13-704(2), MCA. They cite no authority requiring preclusion of deficiency judgment when it is impractical to set aside a sale of collateral that violates § 25-13-704(2), MCA, however, and we find no basis for limiting the District Court to the UCC remedy of precluding deficiency judgment in non-UCC cases.

Furthermore, Blaine Bank would not be precluded from obtaining a deficiency judgment even if the UCC were applied. It is true that on the facts presented in Wippert, Westmont Tractor, and Bank of Sheridan, we concluded that a secured party is precluded from obtaining a deficiency judgment for failing to give adequate notice of the sale as required by § 30-9-504(3), MCA. However, we have also recognized that a total bar to a deficiency judgment is unwarranted in some cases.

In Ottersen v. Rubick (1990), 246 Mont. 93, 98, 803 P.2d 1066, 1069, for example, we observed that barring a deficiency judgment sometimes suggests that the creditor proceeded in bad faith or with unclean hands. When that factor is absent and only a minor portion of the collateral is sold improperly, § 30-9-507(1), MCA, provides an adequate remedy. Ottersen, 803 P.2d at 1069.

Here, Blaine Bank has been in litigation over its claims against the Haugens for five and one-half years. It has proceeded diligently in attempting to enforce its rights and the record contains no suggestion that any of its actions were taken in bad faith or with unclean hands. Furthermore, the judgment and decree of foreclosure entered against the Haugens amounted to $132,427 (plus costs and attorney fees). The vehicles and equipment improperly sold were sold for $18,000 — only 15 percent of the total amount of the judgment. Under these circumstances, we hold that the District Court was not required to preclude Blaine Bank from obtaining a deficiency judgment.

The question remains as to the propriety of the remedy fashioned by the District Court. Initially, we observe that foreclosure proceedings, including the entry of a deficiency judgment, are equitable in nature. See Wash.-Ida.-Mont. Retirement v. Galleria (1989), 239 Mont. 250, 265, 780 P.2d 608, 617. Courts sitting in equity are empowered to determine all the questions involved in the case and to do complete justice; this includes the power to fashion an equitable result. Galleria, 780 P.2d at 617.

The Haugens contend that the remedy imposed by the District Court is inequitable because they bear the burden of proving damages in the supplemental action. They argue that because Blaine Bank improperly sold the collateral, it should be required to prove that the property’s fair market value was obtained at the sale. To support this argument, they assert that a secured creditor seeking deficiency judgment has the burden of proving the commercial reasonableness of the disposition of collateral under the UCC, relying on Farmers State Bank v. Mobile Homes Unlimited (1979), 181 Mont. 342, 593 P.2d 734. This contention is flawed for the same reason articulated above. This is not a UCC case, and the Haugens have cited no authority requiring application of UCC remedies or standards to a judicial foreclosure sale that violates § 25-13-704(2), MCA.

There is nothing inequitable in requiring the Haugens to prove the damages, if any, they have sustained. Nor is there anything equitable in requiring the District Court to preclude Blaine Bank from its deficiency judgment now worth in excess of $150,000 due to a violation in the sale of vehicles and equipment worth approximately $18,000.

The remedy fashioned by the District Court is much like the limited UCC remedy set forth in § 30-9-507(1), MCA. Under that provision, a debtor has the right to recover from a secured party any loss caused by a failure to dispose of the collateral in accordance with the UCC. Here, the District Court’s remedy allows the Haugens to recover any damages incurred by the -unlawful sale of the vehicles and equipment.

Under these facts and circumstances, we conclude that the District Court did not err in allowing a supplemental proceeding to determine the amount of damages, if any, sustained by the Haugens as a result of the unlawful sale.

Did the District Court err by declining to preclude deficiency judgment based on its determination that the Haugens did not own personal property located in the Shanty Motel when it was sold by Blaine Bank?

The District Court determined that the Haugens relinquished possession of the personal property located inside the Shanty Motel to the Ericksons when they abandoned the motel property in January of 1990. The Haugens contend that they remained the owners of the personal property when Blaine Bank sold the motel to the Joshis. They first argue that the 1981 contract for deed conveyed only the real property comprising the Shanty Motel, and therefore, that the Ericksons became the owners of the realty, but not the personal property, when the contract for deed was terminated.

While it is true that the 1981 contract for deed for the Shanty Motel did not expressly convey the personal property along with the motel realty, it is clear that the Haugens gained their interest in the property by virtue of entering into the contract for deed. At the hearing on the motion to preclude deficiency judgment, the Haugens’ attorney conceded that the property in dispute had always been in the motel. Thus, when the Haugens defaulted on the contract and relinquished possession of the motel to the Ericksons, they forfeited not only their interest in the motel realty but also in the personal property.

The Haugens’ forfeiture of their interest in the personal property is in accord with our holding in Haugen I. There, we determined that the Haugens did not possess any interest in the motel property after failing to cure their default on the contract for deed and relinquishing possession of the motel prior to the court’s judgment of foreclosure in favor of Blaine Bank. Haugen, 816 P.2d at 448-49.

The Haugens also argue that the certificate of sale relating to the judicial foreclosure of their purchasers’ interest in the contract for deed purported to sell only the motel’s realty, and therefore, that they remained the owners of the personal property. This argument is without merit. As discussed above, the Haugens forfeited all their interest in the motel property to the Ericksons prior to the judicial foreclosure sale of their purchasers’ interest in the contract for deed. As a result, Blaine Bank gained no interest in the motel at the sale. Blaine Bank’s interest in the Shanty Motel is derived solely from its pre-foreclosure sale agreement to purchase the motel — including, according to the sales agreement, both the “real and personal property comprising the Shanty Motel” — from the Ericksons on April 16, 1990. Thus, Blaine Bank owned the personal property when it sold the Shanty Motel to the Joshis.

We conclude that the District Court did not err in determining that the Haugens did not own any personal property located in the Shanty Motel when it was sold to the Joshis. Thus, the sale provides no basis for precluding Blaine Bank from obtaining a deficiency judgment.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    FIRST NATIONAL BANK OF GLASGOW, Plaintiff and Respondent, v. FIRST SECURITY BANK OF MONTANA, N.A., Defendant and Appellant.
    No. 92-582.
    Submitted on Briefs March 18, 1993.
    Decided August 17, 1993.
    50 St.Rep. 931.
    260 Mont. 38.
    857 P.2d 726.

      For Defendant and Appellant: Ward E. Taleff, Alexander, Baucus & Linnell, Great Falls; Matthew W. Knierim, Christoffersen & Knierim, Glasgow.
    For Plaintiff and Respondent: Robert Hurly, Glasgow.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, First Security Bank, appeals from an order of the District Court of the Seventeenth Judicial District in Valley County which granted summary judgment to First National Bank and awarded attorney fees in the amount of $40,000. We reverse the order of the District Court.

The dispositive issue on appeal is whether First National had a right to recover attorney fees which were incurred as a result of litigation with First Security.

First Security began lending money to James J. Murnion for his ranch operations in 1976. In 1977, Murnion gave First Security a lien on the cattle that he then owned to secure payment of his loans. In 1980, Murnion bought additional cattle with money borrowed from First National. He gave First National a lien on those cattle to secure repayment of that loan.

In 1982, when Murnion began experiencing financial difficulties, he had to sell his cattle in order to repay his loans. However, a dispute arose between the banks over whose lien on the cattle purchased in 1980, and their progeny, had priority. The cattle were sold, with some of the proceeds paid to First National, and other proceeds from the sale of the disputed cattle placed in trust by First Security. The record does not clearly establish how much was realized by First Security from the sale of the cattle in which First National claimed a security interest.

On March 19, 1985, First National filed a complaint consisting of four counts which named First Security as a defendant. In the first count, it sought a declaratory judgment establishing the priority of its security interest in the Murnion cattle. Its second count sought damages for intentional interference with the contract that it had with Murnion, and the third count sought damages caused by First Security’s alleged violation of the covenant of good faith and fair dealing. In count four, First National asked the court to order an accounting by First Security of the proceeds it recovered from the sale of some of the cattle owned by Murnion and in which First National alleged a prior security interest.

Both parties moved for summary judgment. On September 6,1985, the District Court issued its memorandum opinion and order which denied First Security’s motion and granted First National’s motion. The District Court concluded that First National’s lien was a first lien on all cattle owned by Murnion bearing the “Rafter B” brand, and any of the progeny from those cattle. The District Court specifically held that First National’s lien had priority over any lien claimed by First Security.

We affirmed the District Court’s first order granting summary judgment. First National Bank of Glasgow v. First Security Bank of Montana (1986), 222 Mont. 118, 721 P.2d 1270.

Before the first appeal, Lynn D. Grobel, president of First National, filed an affidavit in the District Court in which he stated that First Security had received $40,947.93 from the sale of “Rafter B” branded calves. After remittitur from this Court to the District Court, First Security offered to pay $40,000, plus interest and costs allowed by law, to First National. However, a dispute arose over the issue of whether First National was entitled to attorney fees, and if so, the amount.

On May 22, 1987, First National filed a second motion for partial summary judgment pursuant to counts one and four of its complaint. In its motion, First National acknowledged that First Security had paid the remaining principal balance in the amount of $40,000, plus interest, which it had received from the sale of the “Rafter B” cattle. However, First National alleged that no payment had been made by First Security for the attorney fees and costs incurred by First National to establish the priority of its lien. It alleged that its promissory note and security agreement with Murnion provided for an award of attorney fees to First National in the event that collection efforts were necessary, and further provided that proceeds from the disposition of the cattle would be applied to payment of the bank’s attorney fees and legal expenses.

There was no allegation that there were any further proceeds from the sale of the “Rafter B” cattle, other than those that had already been paid to First National. Nor was there any allegation that First National’s attorney fees were incurred because of any efforts by Murnion to avoid repayment of First National’s loan. First National alleged that to collect the debt owed by Mumion it had incurred attorney fees in the amount of $40,384.61, and that pursuant to its written agreements with Murnion, it was entitled to collect that amount in full from the proceeds of the sale of “Rafter B” cattle.

In support of its motion, First National filed Mumion’s affidavit which stated that he thought the amount of attorney fees being claimed was reasonable. First National also attached the affidavit of Lynn Grobel setting forth the exact amount of attorney fees which had been incurred as a result of First National’s litigation with First Security over lien priority. Significantly, he stated in his affidavit that it was necessary to incur the attorney fees because of First Security’s claim to the proceeds from sale of “Rafter B” cattle. He made no statement that any conduct by Murnion caused First National to incur the attorney fees for which this claim was being made.

First National did not and has not alleged that there is any statutory basis for its attorney fee claim. Nor has it alleged that there was a contract to which First Security was a party which serves as a basis for an award of attorney fees from First Security. It simply alleged that because its contracts with Murnion provided for attorney fees incurred to collect the debt owed by Murnion, First Security was obligated to pay those fees from the proceeds of “Rafter B” cattle which it sold.

Nothing further was done about First National’s second motion for partial summary judgment until August 31, 1992. At that time, oral arguments were presented by both parties to the District Court. However, no evidence was offered by First National in addition to the previously mentioned affidavits. At the conclusion of that hearing, the District Court held that since the security agreement entered into between First National and Mumion provided for attorney fees to First National from the disposition of the secured cattle, the bank’s security interest included not only the amount owed for principal and interest, but also reasonable attorney fees which it had to expend in order to enforce its security agreement. The District Court went on to hold that since First Security had prevented First National from exercising its right to possession of the secured property, it stood in the shoes of Murnion and was obligated to pay those attorney fees. The District Court held that the affidavits were sufficient to establish the amount of fees owed up to the date of the court’s summary judgment.

The District Court’s judgment was certified as a final order pursuant to Rule 54(b), M.R.Civ.R, and First Security filed its notice of appeal from that judgment.

On appeal, First Security argues first that there was no legal basis for an award of attorney fees in this case, and second, that if attorney fees are appropriate, it was at least entitled to an evidentiary hearing at which the reasonableness of the attorney fee amount could be contested. We conclude that First Security’s first argument is dispositive.

We have previously held that:

Montana adheres to the “American Rule” regarding attorneys’fees. Under the American Rule, a party in a civil action is generally not entitled to fees absent a specific contractual or statutory provision.

In re Marriage of Hereford (1986), 223 Mont. 31, 723 P.2d 960. Matter of Dearborn Drainage Area (1989), 240 Mont. 39, 42, 782 P.2d 898, 899.

In this case, there was no contract between First National and First Security which could serve as the basis for the award of attorney fees. Neither has any statutory basis for an award of attorney fees been brought to the attention of this Court.

Instead, First National contends that it had an agreement with Mumion that he would pay attorney fees that were incurred to collect his debt to First National and that those fees could be deducted from the sale of his cattle which were used to secure his loan with First National. Therefore, according to First National, it was entitled to collect those fees from the amount realized by First Security from the sale of Murnion’s “Rafter B” branded cattle. The District Court agreed with First National’s theory. Its order was, in reality, an award of attorney fees imposed on First Security based on a contract to which First Security was not a party. However, for several reasons, we conclude that First National’s argument is without merit.

First, there was no evidence in this case that First Security held proceeds from the sale of “Rafter B” cattle, other than those which had already been turned over to First National. The sketchy evidence that does appear in the record seems to be to the contrary.

Second, First National acknowledged that all proceeds from the sale of “Rafter B” cattle to which it was entitled for repayment of the principal and interest owed by Mumion had been turned over by First Security. Any additional proceeds were owed by Murnion to First Security, and were, in fact, inadequate to pay that entire debt. Therefore, any award of attorney fees would, as a practical matter, be paid by First Security, not Murnion, and no authority has been provided which would authorize Mumion to bind a third party to a contractual obligation for payment of attorney fees simply because it chose to litigate the priority of its lien. However, that is the practical result of the District Court’s order.

Finally, all of the attorney fees which are the subject of First National’s claim were, according to its own president, incurred because of its dispute with First Security. They were not incurred because of any alleged lack of cooperation by Murnion. Even though the District Court’s order apparently had no practical impact on Murnion, the precedent that First National asks us to establish would mean that future debtors could see the value of their assets reduced by tens of thousands of dollars for attorney fees based on a dispute between two lending institutions in which the debtor was not involved and over which the debtor had no control. Such a result is contrary to the principals of contract law which encourage parties to mitigate their expenses.

For these reasons, we reaffirm our adherence to the “American Rule” regarding attorney fees. Since there was neither a statutory nor contractual basis for the District Court’s award of attorney fees to First National, we reverse the District Court’s order of summary judgment which awarded attorney fees, and remand this case to the District Court for resolution of the remaining counts of First National’s complaint and for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, HUNT and WEBER concur.

JUSTICE McDONOUGH, Retired, did not participate in this decision.