author: MR. JUSTICE HUNT

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. DONALD E. BRINER, Defendant and Appellant.
    No. 87-138.
    Submitted on Briefs Aug. 20, 1987.
    Decided Oct. 22, 1987.
    744 P.2d 877.
    Randy S. Laedeke, Billings, for defendant and appellant.
    David Rusoff, City Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Defendant appeals from the judgment of the District Court, Thirteenth Judicial District, Yellowstone County, finding the defendant duly convicted of the offense of speeding. We affirm.

On February 26, 1986, the defendant Briner was cited for driving 50 miles per hour in a 25 mile per hour zone on Daniels Street between Industrial Avenue and Monad Road in Billings, Montana. He was convicted by jury in Billings City Court and appealed. In a trial de novo in the District Court a jury of six found the defendant guilty of going in excess of the speed limit.

The issues on appeal are as follows:

1. Did the court err in failing to instruct that the prosecution must prove each and every element of the offense and in refusing to give defendant’s proposed instruction?

2. Did the court err in refusing to use defendant’s purposed jury verdict forms?

Initially, defendant argues error in failing to give, in pertinent part, the following proposed instruction:

“4. The City of Billings has the burden of proving the guilt of the defendant beyond a reasonable doubt. The prosecution must establish each and every element of the offense of speeding by testimony:
“a. Of an experienced and trained officer, and
“b. That officer made a visual observation, and accurately determined the speed of the defendant’s vehicle, and
“c. That the alleged speed was in excess of the legal speed limit, and
“d. That the speed limit was legally posted at the location of the alleged violation.”

At a minimum, the trial court must define the crime of which the defendant stands accused. State v. Lundblade (Mont. 1981), [_ Mont. -,] 625 P.2d 545, 548, 38 St.Rep. 441, 443. When evaluating jury instructions, they must be looked at as a whole. Lundblade, 625 P.2d at 548. The court gave the following instructions, in part:

“Instruction No. 2
“3. The City of Billings has the burden of proving the guilt of the Defendant beyond a reasonable doubt.
“4. Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his own affairs. Proof beyond a reasonable doubt does not mean proof beyond any doubt or proof beyond a shadow of a doubt.
“Instruction No. 6
“You are instructed that it is unlawful for any person to drive a motor vehicle in the business district or any residence district at a speed greater than 25 miles per hour or at a speed greater than the speed limit indicated on appropriate signs.”

The State has the burden to prove guilt beyond a reasonable doubt. The wording of the court’s instruction No. 2 was specifically approved by this Court in State v. Lucero (Mont. 1984), [214 Mont. 334,] 693 P.2d 511, 516, 41 St.Rep. 2509, 2515. The elements of the crime of speeding are adequately set out in court’s instruction No. 6. taken together with instruction No. 2, this instruction properly apprises the jury of the prosecutor’s burden and the elements of the offense of speeding.

The defendant also argues that court’s instruction Nos. 2 and 5 misstated the law and misled the jury as to the allegations in the complaint. Instruction No.-2 generally charges the defendant with speeding. Instruction No. 5 specifically spells out the law that applies to the charge. We fail to see how this is in any way misleading or inaccurate.

Defendant also argues it was error not to give these additional portions of his proposed instruction No. 1:

“2. By his plea of not guilty, the defendant denies every material allegation of the charges against him. The prosecution is bound by the particular allegations therein and it cannot obtain a conviction by proof of a violation of the same statute in a manner not alleged.
“3. The defendant, Donald E. Briner, is charged with speeding. In every charge of a violation of any speed regulation, the complaint shall specify the speed at which the defendant is alleged to have driven, and specify also the speed applicable within the district or within the location.”

Defendant cites to case law for the proposition that the prosecution is held to the allegations in the complaint and may not obtain a conviction in a manner not alleged. The offense alleged in the present case is speeding, or more specifically, operating a motor vehicle in excess of the 25 mile per hour limit. The jury instructions clearly inform the jury of this charge.

Defendant, secondly, raises the issue that the jury verdict form submitted prejudiced the defendant. By not requiring that the defendant be found guilty or not guilty as charged “and in the manner alleged” in the complaint, the jury was allowed to find Briner guilty of speeding though they did not find him guilty of driving 50 miles per hour in a 25 mile per hour zone, as alleged in the complaint. Not surprisingly, there is little law on this subject. In State v. Dantonia (1955), 18 N.J. 570, 115 A.2d 35, the New Jersey Supreme Court reasoned that the prosecution need not prove the exact speed of the defendant in a speeding case. The material charge against Briner consisted of speeding in excess of 25 miles per hour. This was covered adequately by the jury instructions and verdict forms. The defendant was not prejudiced. We will not disturb the jury verdict or the court’s judgment.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK RODRIGUEZ, Defendant and Appellant.
    No. 87-187.
    Submitted on Briefs Aug. 27, 1987.
    Decided Oct. 22, 1987.
    744 P.2d 875.
    John L. Adams, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Donna Heffington, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District, Yellowstone County, from a conviction of theft.

We affirm the District Court.

Defendant, Rodriguez, raises two issues on appeal:

1. Whether Art Walker’s testimony was accomplice testimony and subject to the requirements of corroborating evidence.

2. Whether there was sufficient corroborating evidence to support the alleged accomplice testimony.

Defendant, Frank Rodriguez, was charged and convicted of the crime of felony theft. The alleged theft took place on March 28, 1986, at a Billings electronic store called U.S. Tech. Around 1:30 on that date, a woman and two men entered the store and began browsing. Store personnel approached the woman several times but offers of assistance were refused. The woman carried a large white handbag on her shoulder. She was seen by store employees talking to one of the two men which she came in with. The woman looked mainly at CamCorders, and the men showed interest in car stereos. While in a part of the store away from the area displaying CamCorders, the men occupied the attention of a clerk by asking questions about various pieces of electronic equipment. After about fifteen minutes, the woman left the store. She returned in a few minutes with a black handbag. Shortly thereafter, all three left the store.

At four o’clock that afternoon, a CamCorder valued at $1156 was found to be missing. The theft was reported to the police. From photo lineups, the woman and defendant were identified by a store employee. The woman’s name is Jillanne Kittelson.

A pawn shop manager testified that one afternoon in March 1986, Jillanne Kittelson brought a CamCorder into the shop to try to sell it. The manager knew Jillanne, as she is the daughter of the owner of the pawnshop. He did not buy the CamCorder, but did mistakenly leave a tape used for testing in the camera. The tape was later identified by the manager at the police station when the CamCorder was recovered.

Two other witnesses, Art Walker and Curt Schlosser, testified at trial. Walker apparently contacted Schlosser, telling him he had a CamCorder for sale for $500. Schlosser bought the CamCorder and then discovered that it did not have a battery. Schlosser called several stores, including U.S. Tech, trying to find the correct battery. After describing the camera to an employee at U.S. Tech, his name and phone number were taken and a police officer was sent to Schlosser’s house to recover the camera. The store owner identified the CamCorder as the one stolen from U.S. Tech.

Walker testified that he got the camera from Frank Rodriguez and Jillanne Kittelson on March 29, 1986. Walker was acquainted with the two and had mentioned to them that Schlosser was interested in buying a CamCorder.

On March 29, Walker went to Kittelson’s home, picked up the camera and took it to Schlosser in exchange for $500. Walker kept $150 but gave $350 to Kittelson who gave the money to defendant. Walker testified that he was unaware that the camera was stolen until he went to Kittelson’s house to pick it up. At that time, defendant and Kittelson bragged about the theft to Walker, describing their actions at U.S. Tech in detail.

A jury convicted defendant of felony theft. He was sentenced to five years in prison with four years suspended. Jillanne Kittelson disappeared before her trial date and is still missing at this time. The record does not mention the identity or whereabouts of the third person who seemingly took part in the theft of the CamCorder.

The first issue raised by the defendant on appeal is whether Art Walker’s testimony was accomplice testimony and subject to the requirements of corroborating evidence.

Defendant’s issues are without merit. An accomplice is one who knowingly, voluntarily and with common intent with a principal offender unites in the commission of a crime. State v. Bad Horse (1980), 185 Mont. 507, 516-517, 605 P.2d 1113, 1118.

Defendant and Jillanne Kittelson were accomplices in the theft of the CamCorder. Art Walker was not. Art Walker testified that he learned that the camera was stolen when he received it from Kittelson and defendant. There is nothing on the record to indicate that Walker had anything to do with planning the commission of the theft.

Walker knowingly received and sold stolen property. This is an offense separate and distinct from the crime of theft. A thief cannot be an accomplice of a receiver of stolen property. State v. LaMere (Mont. 1983), 202 Mont. 313, 658 P.2d 376, 379, 40 St.Rep. 110, 114. Walker’s testimony implicating the defendant need not be corroborated with any other evidence.

As to the second issue of whether there was sufficient corroborating evidence to support the alleged accomplice testimony, we have found that Walker was not an accomplice of defendant. The second issue is therefore rendered moot by this decision.

The decision of the District Court is affirmed.

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


text:
    IN RE THE INTERNAL OPERATING RULES OF THE MONTANA SUPREME COURT.
    DATED this 17th day of December, 1987.
   ORDER

This Court has reviewed its internal operating rules and concluded it is appropriate to revise the rules to improve the opinions of the Court and with the hope of reducing the time required for opinions. The Court has discussed the “1988 Internal Operating Rules” and concluded it will operate under such rules until the further order of this Court.

The provisions of the Constitution of the State of Montana grant to this Court the power to make rules governing the conduct of the Court and of its members, without approval of other branches of government or of the organized bar.

IT IS ORDERED:

(1) The attached “1988 Internal Operating Rules” are hereby adopted commencing January 4, 1988, and to remain in effect until the further order of this Court.

(2) The “1988 Internal Operating Rules” shall be delivered to the State Bar of Montana for publication in The Montana Lawyer, and to the State Reporter and West Publishing Company with the request that they consider the same for publication.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Fred J. Weber, Justice

s/R.C. McDonough, Justice

s/William E. Hunt, Justice

s/L.C. Gulbrandson, Justice

MONTANA SUPREME COURT 1988 INTERNAL OPERATING RULES

SECTION I. CLASSIFICATION AND CONSIDERATION FOR SUMMARY DISPOSITION, REBRIEFING AND SUBMISSION ON BRIEFS

1. Upon receipt of appellant’s reply brief, or after the time for filing the same has expired, the office of the Clerk of Court shall promptly deliver copies of the briefs to all justices and to the Chief Justice all district court files. All documents subsequently received pertaining to such cases shall be promptly delivered to the Chief Justice.

2. The Chief Justice then shall assign each case to a panel of five justices and place each case on a conference agenda at least one week later.

3. On the conference date the following procedure will be used in considering the cases set for conference:

(a) Each case will be discussed by the 5 justices assigned to that case. The first issue shall be oral argument. If two justices request oral argument, the case will be set for oral argument en banc, and no further discussion will be held on that case.

(b) If an appeal is deemed frivolous, it will be summarily dismissed. If a case is found to be insufficiently briefed, it will be returned to counsel for such rebriefing as is required.

(c) If the case is classed as submitted on briefs, the 5 justices on the panel will discuss the merits of the case and take a tentative vote. If 4 or more justices reach a conclusion, the case then will be assigned by the Chief Justice to one of the 5 justices on the panel for opinion writing, and that date will be the submission date for that case. If 4 justices do not vote for one position, the case will be assigned for en banc consideration at the conference one week later.

(d) Appropriate orders shall advise counsel of summary disposition, rebriefing requirements, and submission on briefs assignment.

(e) Cases classified for oral argument shall be placed on the calendar. An appropriate order shall promptly give notice of the time set for hearing oral argument.

SECTION II. ORAL ARGUMENT

1. Where an appeal is calendared for oral argument, the Chief Justice shall designate a justice to author a bench memorandum. The bench memorandum shall be completed in sufficient time for distribution at least one week prior to oral argument.

2. The bench memorandum shall contain these elements:

(a) A brief orientation paragraph.

(b) A statement of the issues with references to the pages on the various briefs on which the issues are treated.

(c) The pertinent facts.

(d) The procedure followed.

(e) Discussion of issues in the order contained in the briefs, setting out the appellant’s contentions, the respondent’s contentions and a discussion on each issue with page references to briefs.

(f) Any conclusion and recommendations.

(g) The memorandum is for reference purposes and shall be as brief as possible.

3. The justice preparing the bench memorandum may request a pre-argument conference to be held prior to oral argument. At that conference a discussion may be held upon issues, questions, and clarifications required.

4. A conference will be held following oral argument. The justice who prepared the bench memorandum will present his analysis of the issues and give his recommendation. The balance of the court will then vote on the case. The date of oral argument will be the submission date.

5. Oral argument cases on which a vote has not yet been taken will receive first priority at all Court conferences. A judge absent at a subsequent conference will be responsible for presenting his views in writing in time for conference.

6. When four justices have reached a tentative decision on a case, that case then will be assigned for opinion writing by the Chief Justice. The result is that the bench memorandum writing justice may not be the author of the opinion.

SECTION III. OPINIONS

1. The basic aim is that the final opinion in each case shall be signed and filed with the Clerk of Court not later than 120 days following the submission date.

2. Within the foregoing period of 120 days, the following applies:

(a) Within 30 days of the submission date, the opinion-writing justice shall circulate an opinion draft. That draft shall be considered at the next Thursday conference, subject to the requirement that the opinion must be circulated by Monday in order to be considered on Thursday.

(b) At the conference the opinion draft shall be voted upon. If four justices vote in favor, the draft shall be finalized.

(c) A justice shall circulate copies of his signed dissenting or concurring opinion within 10 days of the date on which a majority approve a proposed opinion.

(d) Nothing contained in these time periods shall prevent a justice from filing a dissent or special concurring opinion after the 120 day time limit or after the filing of the majority opinion with the Clerk of Court.

4. If the dissent or special concurring opinion is not signed within 10 days of the date on which the majority opinion was approved in Court conference, then the majority opinion shall be filed with the Clerk of Court without prejudice to the later filing of a dissenting or concurring opinion.

SECTION IV. OPERATION AS SEVEN JUSTICE AND FIVE JUSTICE COURT

1. The Supreme Court en banc shall consist of seven members. The Court en banc shall hear all cases in which the accused shall have been sentenced to death, cases in which a bona fide challenge is made to the constitutionality of a statute, and such cases as shall be determined by two or more justices to require a hearing en banc.

2. Any petition for rehearing shall be considered by those justices hearing the case in the first instance. In a case decided by a five-justice panel, if two members would grant a petition for rehearing, the petition shall be granted. In a case decided en banc, if four members would grant a petition for rehearing, the petition shall be granted. The entire Court shall then determine whether to decide the case on the briefs or after oral argument. If a petition for rehearing is granted, the parties to the appeal will be notified as to whether the case will be decided on briefs or after oral argument.

3. All proposed opinions shall be circulated to all justices, whether members of the panel or not. Any justice who is not a panel member may request participation in the panel conference on such proposed opinion.

SECTION V. ORDERS OF THE COURT

1. This section is designed to provide a more efficient, streamlined and speedier procedure for issuing and executing orders of the Court, and to conserve its judicial resources. All orders covered by part 2 of this section shall be signed by the Chief Justice or in his absence, the Acting Chief Justice on behalf of the Court in this manner:

“For the Court

By-

Chief Justice”

2. The following orders shall be signed as provided in part 1:

(1) All orders based on stipulation of counsel.

(2) All orders covering matters decided by the Court in Conference.

(3) All orders fixing or extending the time within which an act must be done.

(4) All orders concerning court calendars, case classifications, participation in and time limits for oral argument, applications for filing of briefs or for oral argument for amicus curiae and related orders.

(5) All interlocutory orders.

3. The following matters shall require the individual signatures of a majority of the justices:

(1) All opinions.

(2) Orders granting or denying rehearing, orders of dismissal, or other final dispositions.

SECTION VI. GENERAL

1. The Chief Justice shall assign all cases on a rotation basis among the justices. The Chief Justice shall rotate on the 5-member panels in the same manner as other justices and shall hear a like number of cases. The Chief Justice shall be assigned one-third fewer cases for opinion than other justices because of his additional administrative duties.

2. The Supreme Court shall hold a conference twice weekly, one each Thursday morning and once each Tuesday morning, commencing at 9:00 a.m. in the conference room of the Court. At all conferences, oral argument cases without a submission date shall be given top priority. The Chief Justice shall prepare an agenda for each Tuesday and Thursday conference. The agenda for the Tuesday conference shall be distributed by noon on the preceding Friday. The agenda for the Thursday conference shall be distributed by noon on the preceding Tuesday.

In the event any Justice is unable to attend a conference, if possible he shall advise the Chief Justice two days prior to the date of the conference. In addition he shall submit a written vote setting forth his decisions on matters to be discussed at the conference.

3. The Chief Justice shall preside over all matters on which he sits. If the Chief Justice is not sitting on that case, the member of the Court with the shortest time to serve shall be the Acting Chief Justice for that case.

4. In those cases in which a justice disqualifies himself, the Chief Justice or Acting Chief Justice shall designate a replacement.

5. These rules may be suspended or waived by order of the Supreme Court.

6. At the first weekly conference in each month, the Clerk shall prepare and circulate among the justices a written report listing all matters which are past due under these rules, and giving the.status of all incompleted applications for writs, motions, and other matters requiring the attention of the Court.

7. Orders, as distinguished from memorandum opinions of full opinions, shall not be published.

8. A full written opinion shall be prepared unless the Court shall determine the disposition shall be by order or by memorandum opinion. An example of disposition by order is the following:

IN THE SUPREME COURT OF THE STATE OF MONTANA

No__

ORDER

PER CURIAM:

The appeal in this case is dismissed for failure of appellant to order or file a transcript within the time allowed by law. See Rules 9(b) and 19(a), M.R.App.Civ.P.

(DATED AND SIGNED)

9. Upon the filing of petitions, applications, or motions with regard to habeas corpus, post-conviction relief, mandamus, prohibition, supervisory control, extraordinary writ, or other requests not pertaining to a pending appeal, the Clerk shall deliver a copy of the same to the Chief Justice. If he deems it necessary, the Chief Justice shall order a response. When the ordered response is filed, the Clerk shall deliver to each Justice a copy of all papers filed and the matter will be placed upon the next Tuesday conference agenda. If the Chief Justice determines that the Court should consider the petition or application before ordering a response, the matter shall be put on the next conference agenda, and the Clerk will be requested to deliver to each Justice a copy of the papers filed.

10. The foregoing rules supersede all prior internal rules of this Court, whether or not specific reference is made to such prior rules.


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TODD MICHAEL RYAN, Defendant and Appellant.
    No. 87-150.
    Submitted on Briefs Sept. 3, 1987.
    Decided Oct. 27, 1987.
    Rehearing Denied Nov. 24, 1987.
    744 P.2d 1242.

      Robert W. Heilig, Billings, for defendant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Martin D. Lambert, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This case arose in the District Court for the Eighteenth Judicial District of Montana, in and for Gallatin County. Mr. Ryan appeals his conviction of being in actual physical control of a motor vehicle while under the influence of alcohol. We affirm.

The issue is whether the District Court erred in refusing to give defendant’s offered Instruction No. 11 concerning circumstantial evidence.

A highway patrol officer noticed Mr. Ryan’s vehicle parked on an interstate on-ramp at about 2:30 a.m. Its lights were on and its engine was running. As the officer approached the vehicle, she saw Mr. Ryan lying across the front seat, with his feet near the gas and brake pedals. She roused Mr. Ryan with difficulty, and noted that he smelled strongly of alcohol and had trouble walking. After having Mr. Ryan perform some field sobriety tests, the officer placed him under arrest.

The officers present when Mr. Ryan arrived at the stationhouse testified that Mr. Ryan performed a series of deep knee bends and ran in place while awaiting booking. He was given a breath analysis test and repeated the field sobriety tests on videotape. The breath analysis test showed a blood alcohol concentration of .158.

Mr. Ryan was charged with violation of Section 61-8-401(l)(a), MCA: “It is unlawful ... for any person who is under the influence of . . . alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public.” After he was tried and convicted in justice court, Mr. Ryan appealed to district court. At his jury trial in district court, the defense offered an instruction on circumstantial evidence. The instruction was refused. The jury found Mr. Ryan guilty.

Did the District Court err in refusing to give defendant’s offered Instruction No. 11 concerning circumstantial evidence?

Defendant’s offered instruction No. 11 was:

“You are instructed that if you find that the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to his innocence, it is your duty under the law, to adopt that interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt.”

The District Court refused the instruction, “in favor of the reasonable doubt instruction”. The defense argues that this refusal wrongfully deprived it of its theory that Mr. Ryan may have acted responsibly in stopping his vehicle and parking it when he felt the effects of alcohol were interfering with his ability to drive.

In a case based solely on circumstantial evidence, an instruction such as defendant’s No. 11 is proper. State v. Lucero (Mont. 1984), [214 Mont. 334,] 693 P.2d 511, 513, 41 St. Rep. 2509, 2511-12. However, such an instruction is not proper where the elements of the crime charged are found in the direct testimony of witnesses. State v. Freeman (1979), 183 Mont. 334, 343, 599 P.2d 368, 373. Here, the arresting officer testified to the essential elements of the crime. Notwithstanding the defense’s theory that Mr. Ryan may have stopped driving when he realized that he was under the influence of alcohol, the testimony of the arresting officer supports the conclusion that he was in actual physical control of the vehicle when she came upon him. He was the only person in the vehicle, was in the front seat as if flopped over from the driver’s seat, and had the vehicle’s engine running and its lights on. Those facts are sufficient to prove actual physical control of the vehicle. See State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33.

Further, the defense was not deprived of its theory when the court refused to give proposed Instruction No. 11. The court gave an instruction on reasonable doubt. If the defense’s theory raised a reasonable doubt in the jury’s minds as to Mr. Ryan’s guilt, the jury could have found Mr. Ryan not guilty. We hold that the court did not err in refusing to give proposed Instruction No. 11.

Affirmed.

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


author: MR. JUSTICE HARRISON

text:
    LOWELL SPRINGER, d/b/a Springer Group Architects and Land Planners, Plaintiffs and Respondents, v. HARRY M. OPSAHL, Ray L. Lingalls, Walter W. Deines, Alan M. Hart, and Carroll M. Hart, Defendants and Appellants.
    No. 87-65.
    Submitted Sept. 14, 1987.
    Decided Oct. 29, 1987.
    744 P.2d 884.

      Sullivan, Baldassin & Mitchell, Zane K. Sullivan argued, Missoula, for defendants and appellants.
    J. David Penwell argued, Bozeman, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff-respondent, Lowell Springer, filed suit against the five named defendants to recover money alleged due under an oral contract. Plaintiff was never able to serve a summons on defendant Ray Ingalls. A bench trial was held before the Honorable Joseph B. Gary in Gallatin County and he concluded that the remaining four named defendants were indebted to plaintiff Springer in the amount of $17,392.70 together with interest thereon at the rate of 10% per annum from December 1979. We affirm, but remand for the correction of the percentage rate on the award of prejudgment interest.

The plaintiff architect, Lowell Springer, entered an oral contract to design certain restaurants for an entity consisting of the five named defendants. Springer was paid only $1,000 for his services and he filed suit to recover the remainder. The major issue of this case involves the nature of the entity consisting of the five defendants. Springer contends he contracted with a partnership, thus making the individual defendants liable. The defendants-appellants contend that Springer contracted with a corporation, thus making the corporation liable on the contract but not each individual defendant.

On June 20, 1978, the five named defendants entered a partnership agreement. The partnership was named “Crosswinds Enterprises.” Article 1.4 of the agreement stated the business of the partnership was to own and operate “one or more restaurants and any other business related thereto, and such other business as the partners shall determine.” The agreement gave defendant Harry Opsahl the general authority to operate and manage the initial restaurant venture. Additionally, Article 4.1 stated the partnership agreement would govern the rights, duties, and obligations of Opsahl until an employment contract was entered between Opsahl and the partnership. In July of 1978 the partnership Crosswinds Enterprises acquired property in Dillon, Montana, for the purpose of developing a restaurant.

On March 1, 1979, the partners signed an addendum altering certain portions of the original partnership agreement. The name of the partnership was changed from “Crosswinds Enterprises” to “Carousel Properties.” The addendum altered the manner in which the agreement governed Opsahl’s duties as operator-manager by providing that such duties would be governed solely by a separate contract of employment and that the provisions of the partnership agreement related only to his status as a partner. An employment contract between Opsahl and the partnership Carousel Properties was never entered. The addendum also provided that unless written consent was obtained from the partnership, all partners were prohibited from: (1) borrowing money in the name of the partnership or lending money belonging to the partnership; and (2) making any purchase in the partnership name or for which the partnership could be liable.

On March 30, 1979, the partnership registered and certified the trade name Carousel Properties with the Secretary of State. However, the registration document itself does not appear to indicate that the name “Carousel Properties” was specifically intended to replace the name “Crosswinds Enterprises” for that particular partnership. On that same date, the five named defendants formed a new corporation and incorporated under the name “Crosswinds Enterprises.” The corporate name is somewhat confusing since it is the former name of the partnership Carousel Properties. According to appellants, the partnership Carousel Properties made an assignment of all right, title, and interest in the name “Crosswinds Enterprises” to the newly formed corporation, Crosswinds Enterprises. The assignment was alleged to occur on the same day of incorporation, but the specific mechanics are somewhat blurry since defendants did not demonstrate the assignment with any written documentation other than the document registering and certifying the trade name Carousel Properties.

After the incorporation of Crosswinds Enterprises, the status of the business entities under the control of the five named defendants consisted of: (1) a partnership, Carousel Properties, with the five named defendants as partners; and (2) a corporation, Crosswinds Enterprises, with the five named defendants as shareholders. Defendant Opsahl entered an employment contract with the corporation, Crosswinds Enterprises, on June 1, 1979.

On July 25, 1979, defendant Ray Ingalls contacted Springer and asked him to develop certain building designs for restaurants. A written contract was never entered. Springer testified that Ingalls indicated he would be paid according to the number of restaurants and the size of the restaurants. Two “prototypes” were envisioned: a 3,800 square foot restaurant design and a smaller 3,400 square foot restaurant design. Springer testified he was to receive $4,500 for each smaller prototype and $7,500 for each larger prototype. Springer testified that Ingalls estimated that as many as 42 restaurants would eventually be built. Springer testified that Ingalls referred to his other business associates as his “partners,” but did not specifically state he represented a partnership or a corporation.

Springer indicated his acceptance of the offer and was sent a retainer check for $1,000 drawn on the account of “Crosswinds of Dillon.” The check gives no specific indication that the entity is a partnership or a corporation. The check was signed by defendants Alan Hart and Ray Ingalls. Plans developed by Springer were used to construct three Wyoming restaurants and few changes were implemented. In November 1979, Opsahl discharged Springer and informed him his services were inadequate. On August 28, 1980, Springer received a letter from Alan Hart stating his work was unsatisfactory and no further payment was intended. Springer has never received further payment.

On July 14,1981, Springer filed suit against the corporation, Crosswinds Enterprises, to recover his fees. On February 18, 1982, Crosswinds Enterprises filed for bankruptcy. Due to the automatic stay required by 11 U.S.C. 362(a), the lawsuit proceedings came to a halt. On October 19, 1984, Springer filed this lawsuit against the five named defendants, on the theory that he contracted with them as a partnership.

The cause proceeded to a bench trial and Judge Joseph B. Gary found in favor of plaintiff Springer. Findings of fact and conclusions of law with a supporting memorandum were issued on September 19, 1986. The conclusions of law state that Springer entered an oral contract with a partnership, consisting of the five named defendants as partners, in which Springer was to design and supervise the construction of 42 restaurants. It was also concluded that three restaurants were constructed utilizing Springer’s plans and that defendants were indebted to Springer in the amount of $17,392.70 ($16,500 in contract damages plus $1,892.70 in actual expenses minus $1,000 received as a retainer fee) together with interest thereon at the rate of 10% per annum from December 1979. Ingalls was never served with a summons and therefore judgment was not rendered against him. Defendants appeal from this judgment.

Five issues are presented for our review on appeal:

1. May the plaintiff recover from the individual defendants by alleging he contracted with a partnership and not a corporation?

2. Should plaintiff Springer be estopped from alleging he contracted with a partnership when he has previously dealt with that entity as a corporation?

3. Did the trial court commit error by making findings that were not supported by the evidence?

4. Did the trial court commit error by admitting inadmissible evidence?

5. Was the rate of prejudgment interest properly entered?

Before reviewing each individual issue, we must note the applicable scope and standard of review. The District Court’s findings of fact will not be reversed unless clearly erroneous. Rule 52(a), M.R.Civ.P. Findings are not clearly erroneous if supported by substantial credible evidence. Additionally, the following statement applies to the standard of review to be exercised in this case:

“In a nonjury trial, the credibility of witnesses and the weight of their testimony are matters for the District Court to determine. The sufficiency of the evidence must be reviewed from the perspective most favorable to the prevailing party. The District Court’s findings and judgment are presumed correct and will not be overturned unless the appellant meets the burden of proving with a preponderance of evidence that they are wrong. Merely showing the evidence establishes reasonable grounds for reaching a different conclusion is insufficient to reverse the District Court findings.”

Frank L. Pirtz Const. v. Hardin Town Pump (Mont. 1984), [214 Mont. 131,] 692 P.2d 460, 462, 41 St.Rep. 2366, 2368.

I. May the plaintiff recover from the individual defendants by alleging he contracted with a partnership and not a corporation?

Springer contends he contracted with a partnership entity and that the individual defendants are therefore liable. The defendants contend that Springer contracted with a corporation, thus making the corporation liable on the contract and not each individual defendant. The District Court concluded Springer contracted with a partnership by stating:

“That in the month of July, 1979, the Plaintiff and the partnership consisting of Harry M. Opsahl, Ray N. Ingalls, Walter W. Deines, Alan M. Hart and Carroll M. Hart, entered into an oral agreement whereby the services of the Plaintiff architect were to be obtained for the purpose of designing and supervising the construction of forty-two (42) restaurants.”

Defendants attack this issue in several different ways. First, defendants contend the corporation, Crosswinds Enterprises, should not be held to consist of an actual partnership. The contention is that no actual partnership named Crosswinds Enterprises existed between the defendants at any time during the relationship between Crosswinds Enterprises and Springer. Defendants state that by the time Springer and Ingalls entered the oral agreement the entity known as Crosswinds Enterprises was incorporated and properly assumed its name which was formerly held by the partnership Carousel Properties. They argue that the partnership Crosswinds Enterprises ceased to exist by that name when the addendum was entered on March 1, 1979 changing the partnership name and restricting each partner’s authority. Second, defendants contend that Crosswinds Enterprises should not be held to consist of a partnership by estoppel because there is insufficient evidence demonstrating the entity was held out as a partnership and Springer did not rely on any such representations.

Third, defendants contend that the individual defendants should not be held liable by virtue of their partnership status in Carousel Properties. Defendants point out that all of Springer’s dealings were with the entity Crosswinds Enterprises, and that all of Springer’s pleadings and allegations have been against Crosswinds Enterprises. Also, defendants state Opsahl had no authority to bind the partnership Carousel Properties. According to the partnership agreement and the addendum filed on March 1, 1979, he had no actual authority to bind the partnership without the approval of the other partners. Finally, defendants allege that if any liability does result, it should extend to only Opsahl because he did not disclose the identity of his principal to Springer.

In sum, defendants’ tactic is to systematically rebut each possible theory resulting in the conclusion that Springer contracted with a partnership. However, we find that the substance of the transaction is that Springer entered an oral contract with a partnership. Defendants contend this conclusion is incorrect since the partnership Crosswinds Enterprises no longer existed and the partnership Carousel Properties was unknown to Springer. However, we refuse to follow this reasoning and place form over substance.

More specifically, we believe the facts demonstrate a partnership by estoppel. Partnership by estoppel has two basic elements requiring: (1) that a person or entity represent to a third party that he is dealing with a partnership, even though no such partnership exists; and (2) that the third party rely to his detriment. See, Gam ble Robinson Co. v. Carousel Properties (Mont. 1984), [212 Mont. 305,] 688 P.2d 283, 288, 41 St.Rep. 1757, 1762 (a case involving these same five defendants in which this Court reversed a summary judgment which found partnership liability). Partnership by estoppel is controlled by Section 35-10-308, MCA, which states in part:

“(1) When a person by words spoken or written or by conduct represents himself or consents to another representing him to anyone as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made who has on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner, he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made. When a partnership liability results, he is liable as though he were an actual member of the partnership. When no partnership liability results, he is liable jointly with the other persons, if any, so consenting to the contract or representation as to incur liability, otherwise separately.”

At the time the contract was negotiated and entered, Ray In-galls did not specifically state he represented either a partnership or a corporation. However, Springer testified that Ingalls did refer to the other individuals involved as his “partners.” This representation could lead a reasonable person to believe he was dealing with a partnership. After the contract was entered, Springer received a retainer check drawn on the account “Crosswinds of Dillon.” The check fails to classify the business entity and it would not have been unreasonable for Springer to continue to believe he contracted with a partnership. The defendants do not contend that there was a corporation organized under that name and the retainer check failed to notify Springer he was dealing with a corporation. Regardless of their intentions the record clearly indicates that they would have benefited financially by having the plaintiff perform the contracted work.

A similar issue was presented to the Supreme Court of Wisconsin in Phillip Lithographing Co. v. Babich (1965), 27 Wis.2d 645, 135 N.W.2d 343. In determining whether certain partners were individually liable on a contract, the court stated:

“The general rule is that partners who continue to hold themselves out as such after the formation of a corporation cannot escape responsibility for contracts entered into after the change in business status without adequate notice that the partnership has been dissolved. This is especially true when the corporation operates under the same name and circumstances as the partnership.”

Id. 135 N.W.2d at 344. Admittedly, the Wisconsin Court was faced with slightly different facts in that the complaining party had dealt with the business entity in question both before and after incorporation. Here, Springer contracted with the defendants only after the incorporation. However, we believe the situations are sufficiently analogous for the above general rule to have a persuasive effect.

Defendant Harry Opsahl testified he believed Springer worked for the partnership entity. Ray Ingalls referred to the other individuals involved as his “partners.” The retainer check drawn on the account of “Crosswinds of Dillon” did not notify Springer he contracted with a partnership, and a search for this particular corporate name with the Secretary of State still would not have notified Springer. Sufficient evidence exists to find that the entity was held out as a partnership. Additionally, Springer’s subsequent efforts and work demonstrate he relied on this “holding out” to his detriment. Although the District Court simply found Springer contracted with a partnership and did not specifically conclude there was a partnership by estoppel, the effect of the District Court’s conclusion is the same. We therefore agree with the result of the District Court’s conclusion and will not reverse on this issue.

II. Should plaintiff Springer be estopped from alleging he contracted with a partnership when he has previously dealt with that entity as a corporation?

Defendants assert Springer has previously treated the entity Crosswinds Enterprises as a corporation and therefore he should now be estopped from claiming it is a partnership. On July 14, 1981, Springer attempted to recover his fees by filing a lawsuit against “Crosswinds Enterprises, A Montana Corporation.” Springer obviously addresses Crosswinds Enterprises as a corporation throughout the complaint. Defendants contend Springer could not later elect to sue the individual defendants on the theory they acted as partners. Defendants also point out that on January 28, 1982, Springer signed an affidavit in support of a petition for a prejudgment writ of attachment and referred to Crosswinds Enterprises as a corporation.

Defendants’ argument is based primarily upon Sun River Stock and Land Co. v. Montana Trust and Savings Bank (1928), 81 Mont. 222, 262 P. 1039. In that case, this Court stated that one who recognizes an entity as a corporation by dealing with it as such is prohibited from later holding the members of the corporation as partners. Sun River Stock and Land Co., 262 P. at 1045. However, the facts of the present case are distinguishable. Sun River Stock and Land Co. involved individuals attempting to assert that a corporation was actually a partnership, after these same individuals clearly recognized and treated the entity as a corporation throughout their entire dealings. As a stockholder and director, one of the plaintiffs, Charles Power, was substantially involved in the incorporation and subsequent operation of the entity as a corporation. In contrast, Springer did not clearly address Crosswinds Enterprises as a corporation until he attempted to recover his fees by filing a complaint in July of 1981. The contract was formed approximately two years earlier and Springer’s services were terminated in November of 1979. Until the time Springer filed suit against Crosswinds Enterprises, one could not characterize Springer as having treated that entity as a corporation. The sole exception to this was when Springer’s office addressed an inspection report to “Crosswinds Enterprises, Inc.” on September 17, 1979. Despite many contacts between Springer and Crosswinds Enterprises, including at least nine bill demands, defendants are only able to point out this one occasion where the entity is specifically designated with the abbreviation “Inc.” Springer did not address Crosswinds Enterprises as a corporate entity until he attempted to recover his fees by filing suit against the corporation. This subsequent attempt to recover his fees will not be interpreted so as to estop Springer from alleging he originally contracted with a partnership.

There is an additional reason why we find Springer is not estopped from his claim. Essentially, defendants contend that under these facts Crosswinds Enterprises is a corporation by estoppel. The theory of corporation by estoppel has heavy roots in equity. The basic rationale for the theory is that it is usually inequitable to allow a party to deny that an entity is a corporation after he has already dealt with it as a corporation. See, 8 Fletcher Cyclopedia Corporations Section 3912 (1982). Under the facts presented however, the opposite is true. It is undisputed that Springer received only $1,000 in compensation. The District Court found that despite his termination, Springer’s plans were utilized to build three restaurants. Evidence heard at trial indicated that a reasonable architect’s fee would be much higher than what Springer demanded. The $1,000 retainer fee constituted only a small fraction of a reasonable fee. Equity and fairness dictate that Springer should not be estopped from contending he contracted with a partnership.

III. Did the trial court commit error by making findings that were not supported by the evidence?

Defendants contend the trial court erroneously determined the timing of the name change of the partnership from Crosswinds Enterprises to Carousel Properties. Defendants focus on finding of fact number 22 and contend it indicates the name change occurred after the contract was entered with Springer. We agree that the evidence demonstrates that the name change occurred before the agreement was entered. However, in light of the previous portion of this opinion, we find that this constitutes harmless error.

Defendants also state finding of fact number 22 is erroneous in that it states defendants Opsahl and Ingalls represented that the restaurants were to be owned by the partnership and that the restaurant owners were substantial investors with capabilities of constructing 42 restaurants. The record demonstrates that Ingalls indicated the entity which he represented was comprised of other individuals which he referred to as his “partners.” Further, at the time Springer was informed that as many as 42 restaurants were planned, it was impliedly represented that the individuals involved were “substantial” investors. We refuse to find that these findings are clearly erroneous.

IV. Did the trial court commit error by admitting inadmissible evidence?

Defendants assert the trial judge heard three items of evidence that should have been ruled inadmissible. First, defendant Opsahl was allowed to testify that Springer worked for the partnership and not the corporation. Error is alleged because Opsahl also testified he knew little about the contract with Springer as well as the addendum to the partnership agreement. Defendants claim Opsahl should not have been allowed to give his opinion as to the ultimate issue of the trial when he admitted he knew little about the contract itself. A lay witness may give testimony in the form of an opinion if the testimony is “rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue.” Rule 701, M.R.Evid. Opsahl was substantially involved with the affairs of the business and his statements were rationally based on his own perceptions. Further, his statements were helpful to the determination of a fact in issue. “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Rule 704, M.R.Evid. Opsahl’s testimony that he knew little about Springer’s contract and the addendum to the partnership agreement goes to the weight of his testimony and not the admissibility. Therefore, the statements by Opsahl were admissible.

Second, defendants claim a deed to property located in Dillon, Montana, was improperly admitted into evidence since title to the property was irrelevant. The deed was for the property acquired by the former partnership, Crosswinds Enterprises, to develop their first restaurant. Defendants contend the trial court erroneously used the deed to conclude that the partnership owned all of the restaurant facilities operated as Crosswinds restaurants. Even if it is assumed that the deed was irrelevant and should not have been admitted, defendants fail to adequately demonstrate that the District Court would have arrived at a different decision. Therefore, the admission of the deed was no more than harmless error.

Finally, defendants assert that certain character evidence was improperly admitted. Counsel for Springer demonstrated that prior to the bankruptcy, the former Crosswinds restaurant in Dillon was transferred to a corporation controlled by defendant Alan Hart’s mother. Defendants claim this was irrelevant character evidence which tended to imply a fraudulent transfer and resulted in prejudice. However, defendants fail to demonstrate the conclusions of the court would have been different if the allegedly inadmissible character evidence had not been admitted. Defendants state that evidence of the prejudicial effect can be seen in the District Court memorandum where it is stated,

“There was a considerable number of hours spent by the respective architects at a very reasonable fee which was much less than the accountant [defendant] Mr. Hart charged at the time.”

In view of the evidence presented in the transcript, we agree with this statement by the District Court. Further, we find no indication that the statements by Springer’s counsel necessarily tainted the trial judge’s decision.

V. Was the rate of prejudgment interest properly entered?

The District Court awarded interest on the amount of the judgment at the rate of 10% per annum from December 1979. Defendants state the legal rate of interest should be governed by Section 31-1-106, MCA (1979), as that law appeared at the time of the Springer-Crosswinds Enterprise dealings. The rate of interest provided at that time was 6%. In 1985, the legislature amended the statute and provided for an interest rate of 10%. 1985 Mont. Laws 263. Defendants contend that if any portion of the trial court judgment is affirmed, the interest on that judgment amount should be only 6% per annum from November 1979 until judgment was entered.

We find the newly provided interest rate should be applied as of the date the law became effective. The session law, 1985 Mont. Laws 263, indicates no effective date. Section 1-2-201, MCA, indicates an effective date of October 1, 1985 unless the legislation provides otherwise or is an appropriation of public funds for a public purpose. Therefore, we hold the applicable interest rate is 6% until October 1, 1985, and 10% thereafter. See, Byrne v. Terry (Mont. 1987), [228 Mont. 387,] 741 P.2d 1341, 44 St.Rep. 1620, 1624.

We remand to the District Court for the correction of the percentage rate on the award of prejudgment interest. For the foregoing reasons, the District Court’s decision is affirmed on all of the remaining issues.

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


text:
    In re the MARRIAGE OF TIM SULLIVAN, Petitioner and Appellant, and JOAN C. SULLIVAN, Respondent and Respondent.
    No. 87-86.
    Submitted on Briefs July 23, 1987.
    Decided Oct. 27, 1987.
    Rehearing Denied Nov. 24, 1987.
    744 P.2d 1240.

      Hull and Sherlock, Jeffrey M. Sherlock, Helena, for petitioner and appellant.
    Mark A. Vucurovich, Butte, for respondent and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Second Judicial District, Silver Bow County, dissolved the marriage of the parties in September 1986. In December 1986, the District Court distributed the marital estate. Mr. Sullivan appeals the distribution of the marital estate and award of maintenance. We affirm.

The issues are:

1. Did the District Court’s valuation of assets and distribution of property constitute reversible error?

2. Was there sufficient evidence to support the District Court’s award of maintenance?

The parties to this action were married in 1964 and are residents of Silver Bow County. They have two children, both of whom were emancipated at the time of trial. During the course of the marriage the husband received a bachelor’s degree, a master’s degree, and a doctorate degree. At the time of trial he was making a salary of approximately $45,000 per year as a curriculum director for School District No. 1 in the Butte public school system. The wife has only a high school diploma. She testified that she was employed as an automobile salesperson earning approximately $400 per month in commissions at the time of trial.

The District Court (a) awarded the home, subject to a $4,500 mortgage, to the wife; (b) awarded the husband the full value of his two pensions, a Teachers Retirement pension and a Teamsters pension; (c) awarded the parties the personal property currently in the possession of each, valuing the property at $7,500; (d) ordered that the husband be responsible for all debts of the marriage; and (e) ordered the husband to pay $350 per month maintenance for two years.

I

Did the District Court’s valuation of assets and distribution of property constitute reversible error?

The husband argues that the District Court improperly adopted the wife’s proposed findings and conclusions. We conclude that the findings and conclusions are properly supported by the evidence. We hold that the court did not commit error through its adoption of significant parts of the wife’s proposed findings and conclusions. See In re the Marriage of Rogers (Mont. 1987), [226 Mont. 163,] 734 P.2d 677, 680, 44 St.Rep. 556, 560.

The husband argues that the findings and conclusions do not specifically set forth the liabilities of the parties and so he cannot determine the debts for which he is held responsible. Both parties submitted extensive statements of income, expenses, assets and liabilities which were declared to be true and correct under penalties of perjury. These schedules contain itemized liabilities. In addition, the husband testified at length regarding liabilities. We conclude the District Court did not err in failing to make a more specific list of liabilities.

The husband argues that the valuation of the home was not supported by the evidence. The District Court valued the home at $67,000 based upon an appraisal by James Burgess. The schedule submitted by the husband valued the home at $42,000-$48,000. The schedule submitted by the wife valued the home at $45,000. At trial the parties agreed they would provide a current appraisal. The appraisal of James Burgess is not a part of the record. The husband argues for reversal on the technical absence of the appraisal. We conclude this is a technical argument without merit. Analyzing the distribution of assets, it is apparent that if the home was overvalued, it is the wife who has a basis for complaint, and not the husband. We conclude that the house valuation does not constitute reversible error as to the husband.

The husband raises a technical argument with regard to the value of the pensions which were awarded to him. He argues that the valuations by the District Court in the amount of $38,727 and $9,000 are not supported by the evidence. At trial the husband’s counsel agreed to provide an updated valuation which does not appear in the record. Husband’s schedule valued the pensions at $34,000 and $9,000 and his proposed findings valued the pensions at $38,727 and $23,021. Regardless of the valuation, the record does not disclose injury to the husband. We conclude that the District Court’s valuation of pensions awarded to the husband does not constitute reversible error.

The husband also argues that the District Court failed to consider the wife’s alleged dissipation of the estate. The District Court said that the husband had made broad allegations of forgery which the court “finds untrue”. There is substantial evidence to support the conclusion of the District Court, and we find no error.

II

Was there sufficient evidence to support the District Court’s award of maintenance?

In determining maintenance, the District Court must be guided by Section 40-4-203, MCA. Initially the court must determine whether maintenance is proper pursuant to subsection (1) which permits a maintenance award if the wife lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment.

The District Court found that the wife’s limited resources, her limited educational background, and the length of the marriage qualified her for maintenance. The only substantial asset which she enjoys is the family home which is not income producing property. She has only a high school education, and much of her 22 years of marriage was spent as homemaker. Although the husband alleges that the wife had earned as much as $20,000 in 1979 and also in 1980, the record does not support this contention. Her W-2 forms indicate that she earned $11,224 in 1981, $7,896 in 1984, and $4,292 in 1985. Currently the wife earns approximately $400 per month. We conclude that subsection (1) of Section 40-4-203, MCA, has been satisfied, and that the District Court did not abuse its discretion by awarding maintenance.

Next the District Court must look to the factors' set forth in subsection (2) of the statute for the determination of amounts and periods of maintenance. The husband contends that the court did not have sufficient credible evidence to support its award of $350 per month for 2 years. He also believes that the court failed to consider that his monthly financial obligations are greater than his financial resources and so he is unable to meet his needs while meeting the needs of the wife.

In its findings and conclusions the court considered the wife’s limited education, the length of marriage, the high earning capacity of the husband, the limited earning potential on the part of the wife, and the wife’s limited assets. We conclude that the record contains substantial evidence to support the maintenance award of $350 per month for two years.

The husband argues that his monthly payout will exceed his monthly earnings. We note that a number of the listed expenditures on the part of the husband are no longer required as a result of the form of the decree. We conclude there is substantial evidence to support the award of maintenance.

We affirm the District Court.

MR. JUSTICES HARRISON, SHEEHY, GULBRANDSON and McDonough concur.


text:
    DOUGLAS F. EIGEMAN, Plaintiff and Appellant, v. LLOYD J. MILLER and Betty J. Miller, Defendants and Respondents.
    No. 87-116.
    Submitted on Briefs July 14, 1987.
    Decided Oct. 27, 1987.
    745 P.2d 320.

      Church, Harris, Johnson & Williams, Richard F. Gallagher, Great Falls, for plaintiff and appellant.
    Emmons & Coder, H. William Coder, Cotter & Cotter, Patricia O’Brien Cotter, Great Falls, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Eigeman brought this action for forfeiture of the Millers’ contract right to property they purchased from him on a contract for deed. The District Court for the Eighth Judicial District, Cascade County, dismissed the complaint. Mr. Eigeman appeals. We reverse and remand for trial.

The dispositive issues are:

1. Did the District Court err in failing to find that the Millers must tender the full balance due under the contract in order to be entitled to the benefits of the antiforfeiture statute, Section 28-1-104, MCA?

2. Did the court err in finding and concluding that the contract’s shortening of notice provision is unconscionable as applied and that the default notices were inadequate and fatally defective?

In September 1982, Mr. Eigeman agreed to sell the Millers a piece of commercial property in Great Falls, Montana, under a contract for deed. The Millers used their equity in a home as the downpayment on the contract. Mr. Eigeman’s interest in the property was based on a lease with an option to buy. His lessors gave their written agreement that they would pass title to him when the Millers paid off the option price under the lease-option. The Eigeman-Miller contract requires the Millers to pay $1,480.16 on the 10th of each month.

Paragraph 7 of the Eigeman-Miller contract provides that if the Millers default in making any payment, and if the default continues for 10 days, then Mr. Eigeman may give notice to the Millers of the default claimed. If the first default claimed is not cured within 30 days of the notice, then the contract is in default and Mr. Eigeman may elect to either sue for the entire balance remaining unpaid, repossess the property, or foreclose the contract as a real estate mortgage. Paragraph 8 provides:

“8. If, after the first notice of default, the Purchasers cure or correct the default or defaults, and if there is a subsequent default, the periods of time are shortened to FIVE DAYS (5) after the existence of the default before the notice can be given, and to TWENTY DAYS (20) as the period within which the default may be cured. If, after this TWENTY DAYS (20) notice the Purchasers cure the default or defaults complained of, and a subsequent default exists, the periods are further shortened to THREE DAYS (3) after the default before the notice can be given, and to TEN DAYS (10) within which to cure the default. If there is a default after THREE (3) notices have been given to the Purchasers, then the Sellers need give no further notice and may forthwith elect one of the three alternatives described above in the paragraph under defaults, No. 7.”

The record of payments to the escrow account shows that the Millers never once made their payments on time, although they were never more than 13 days late. Beginning in August 1984, Mr. Eigeman gave the Millers notices of default for late payments. The notice of default for September read:

“NOTICE OF DEFAULT
“Per the contract for Deed dated the 10th day of September, 1982, you are in default of Article 7 of that agreement, in that the payment of $1,480.16 was not paid by September 10,1984. The property affected by the agreement is described as follows:
“Lot 5, Block 3, Charles Russell Addition to Great Falls, Cascade County, Montana according to the officially recorded plat thereof on file and of record in the office of the Clerk and Recorder of Cascade County, Montana.
“Demand is hereby made under Article 7 of the agreement.”

The other default notices were substantially the same as the September notice. The series of payments on which Mr. Eigeman sent default notices was as follows:

Payment Due Date of Default Notice Date of Payment

August 10 August 22 August 23

September 10 September 17 September 18

October 10 October 15 October 22

November 10 November 14

When the Millers failed to make the December payment by December 11, Mr. Eigeman sent them a Notice of Election of Remedies and Cancellation and Termination of Contract for Deed, based on the provisions of paragraph 8.

Mr. Eigeman then brought this action to terminate the contract for deed and to obtain forfeiture of the downpayment and monthly payments which had been made by the Millers. Both parties filed motions for summary judgment. After the first of five hearings in this matter, the court granted partial summary judgment to Mr. Eigeman, ruling that the Millers were in default of their obligations under the contract. It also granted Mr. Eigeman leave to amend his complaint, to allege defects making the Millers’ house less valuable than the value assigned to it for downpayment on the contract. It ordered the Millers, if they could do so, to show that they were entitled to the benefits of Montana’s antiforfeiture statute, Section 28-1-104, MCA.

At the second hearing, the Lawsons, Mr. Eigeman’s lessors, moved to intervene. Their motion was granted, and the court ordered an escrow account set up for deposit of payments on the property during this litigation.

At the third hearing, the court heard brief testimony by Mr. Miller and extensive arguments of counsel on applicability of the antiforfeiture statute. The discussion between court and counsel then broadened to other aspects of the case. In its findings and conclusions, the court altered, amended, or withdrew its prior findings and conclusions to the extent that they were in conflict with the findings and conclusions from this hearing. It found that the default notices Mr. Eigeman sent to the Millers referred only to paragraph 7 of the contract. Only the final notice of election of remedies referred to paragraph 8. The court stated

“[this] court does not find any substantial, credible evidence . . . that the Millers, in their performance of the terms of said contract, were grossly negligent; nor . . . that there was any willful or fraudulent breach of duty on the part of the Millers to prevent the application of the equitable benefits of that statute.”

It found that under the circumstances of this case the application of paragraph 8 was unconscionable and that the failure of Mr. Eigeman to mention paragraph 8 in the notices to the Millers rendered the complaint for forfeiture fatally defective. It dismissed the complaint and awarded the Millers their costs and attorney fees. It also ordered that none of the payments which the Millers had deposited in the escrow account could be distributed without court order.

Two additional hearings were held. At those hearings, the disposition of funds in the escrow account was arranged and the amount of the Millers’ attorney fees was set.

I

Did the District Court err in failing to find that the Millers must tender the full balance due under the contract in order to be entitled to the benefits of the antiforfeiture statute, Section 28-1-104, MCA?

Section 28-1-104, MCA, provides:

“Relief from forfeiture. Whenever by the terms of an obligation a party thereto incurs a forfeiture or a loss in the nature of a forfeiture by reason of his failure to comply with its provisions, he may be relieved therefrom upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.”

In its order dated October 1, 1986, the District Court concluded that “the Millers have successfully demonstrated their right to the antiforfeiture provisions of Section 28-1-204, [sic] M.C.A.”

In order for Section 28-1-104, MCA, to apply, the party exposed to the forfeiture must have offered as full compensation the entire outstanding balance on the contract. Sun Dial Land Co. v. Gold Creek Ranches (1982), 198 Mont. 247, 251, 645 P.2d 936, 939. The Millers made no such offer of full compensation to Mr. Eigeman. Therefore the District Court’s conclusion that the Millers proved their right to the antiforfeiture provision is reversed.

II

Did the court err in finding and concluding that the contract’s shortening of notice provision is unconscionable as applied and that the default notices were inadequate and fatally defective?

The court’s finding on unconscionability after the third hearing was “[t]hat, given the factual circumstances out of which this case arises, the Court finds that Paragraph 8 of said contract for deed is, in its application, unconscionable . . .” The court concluded that “the forfeiture provisions under Paragraph 8 of the parties’ contract for deed are, under the circumstances, unconscionable . . .”

At the time of the third hearing, summary judgment had been granted to Mr. Eigeman with the exception that the Millers would be allowed an opportunity to prove they were entitled to the benefit of the antiforfeiture statute. The purpose of the hearing was to allow the Millers to prove their entitlement to application of that statute. The presentation and cross-examination of witnesses was limited to that purpose. Yet the District Court went on to rule on the unconscionability of paragraph 8 and the inadequacy of the notices.

The court’s holding on the unconscionability of paragraph 8 as applied involves issues of fact. The court found that the circumstances constituting unconscionability included oppression (Mr. Eigeman’s attorney drafted the contract and the Millers were unrepresented) and unfair surprise (paragraph 8 was not mentioned in the notices of default). Similarly, although no authority was cited which would require the notices of default to refer specifically to paragraph 8, the court found that the notices were inadequate and fatally defective. Mr. Eigeman argues in his brief to this Court that the notice given was adequate in light of the contract provision that “notice shall be sufficient for all purposes if it describes the default in general terms.” He was not allowed to present any evidence on that or any other theory in the proceeding before the District Court.

These are issues on which full opportunity for presenting testimony and cross-examining witnesses should have been allowed to all parties. Yet only Mr. Miller testified at the hearing, and his testimony was limited to the issue of whether the Millers were entitled to the benefit of the antiforfeiture statute. We conclude that this case should be remanded for full trial on the merits.

Mr. Eigeman has also raised the issues of whether he should have been allowed to present evidence of latent defects in the house used as a down payment on this contract, and whether the Millers were properly awarded their attorney fees. These issues need not be addressed at this stage because of the remand for trial.

Reversed and and remanded.

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


text:
    TAYLOR-McDONNELL CONSTRUCTION COMPANY, Plaintiff and Appellant, v. COMMERCIAL UNION INSURANCE COMPANIES; and Powell County Museum and Arts Foundation, Defendants and Respondents.
    No. 86-447.
    Submitted on Briefs Aug. 6, 1987.
    Decided Oct. 30, 1987.
    744 P.2d 892.
    Poore, Roth & Robinson, Gary L. Walton, Butte, for plaintiff and appellant.
    Henningson & Purcell, Mark Vucurovich, Butte, for Commercial Union.
    Towe, Ball, Enright & Mackey, Thomas Towe, Billings, for Powell County Museum.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This appeal arises from an insurance policy dispute in Powell County, Montana. Commercial Union Insurance Co. (Commercial Union), refused to cover faulty workmanship done by appellant pursuant to an exclusion contained in appellant’s Comprehensive General Liability (CGL) insurance policy. Appellant, Taylor-McDonnell, appeals from the judgment of the District Court granting defendants’ motion for summary judgment.

We affirm.

The following issues are addressed on appeal:

1. Whether the District Court erred in determining that the insurance policy was not ambiguous as a matter of law.

2. Whether the District Court erred in determining that the insurance policy did not provide coverage for all claims brought by Powell County Museum and Arts Foundation.

Defendant, Powell County Museum and Arts Foundation (Museum), entered into a contract with Taylor-McDonnell for the construction of a roof on a building intended to be used as a museum. The museum was intended to house a collection of antique cars. When, in approximately two years, the roof began to leak, the museum filed an action against Taylor-McDonnell seeking damages for poor workmanship and materials, negligence, and breach of contract and guarantee.

The specific damages pertinent to this appeal contained in the museum’s complaint are as follows:

“d. Cost of materials for temporary roof crack, repair and flashing repair — $2,933.69.
“e. Labor and patching roof cracks — $937.50.
“f. Cost of replacing roof on antique car museum — $5,600.00.
“g. Cost of replacing roof on old prison theatre — $13,390.00.
“h. Interest on money borrowed to replace roof (12 Vz percent x $5,600.00) — $3,835.62 + 12V2 percent from May 1, 1984.”

Shortly after the complaint was filed a claims supervisor for Commercial Union, appellants insurer, wrote to McDonnell of Taylor-McDonnell to explain the contractors’ coverage with respect to the museum’s complaint. The insurance agent asserted that Taylor-McDonnell’s CGL insurance policy did not cover the damages alleged in sections d-h of the museum’s complaint pursuant to the policy’s following provisions:

“1. COVERAGE A — BODILY INJURY
“COVERAGE B — PROPERTY DAMAGE LIABILITY
“The company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of:
“COVERAGE A — Bodily injury; or
“COVERAGE B — Property Damage
“To which this insurance applies caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, that the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgment or settlements.
“EXCLUSIONS:
“This insurance does not apply:
“(n) to property damage to the named insured’s products arising out of such products or any part of such products:
“(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

Appellant had also purchased a broad form property damage policy which provided the Taylor-McDonnell Company with broader coverage than the CGL policy. However, this policy contained the following exclusion:

“(z) With respect to the completed operations hazard and with respect to any classification stated above as “including completed operations”, to property damage to work performed by the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

Upon hearing Commercial Union’s motion for summary judgment, the District Court ruled that as a matter of law, summary judgment should be entered in favor of Commercial Union. From this judgment, Taylor-McDonnell appeals.

Issue #1. Did the District Court err in determining that the insurance policy was not ambiguous as a matter of law?

Appellant argues that when read as a whole, the insurance policy at issue is ambiguous per se and consequently coverage should extend to all claims made against Taylor-McDonnell by the museum.

“An ambiguous provision in an insurance policy is construed against the insurance company.” Bauer Ranch v. Mountain W. Farm Bur. Mut. Ins. (Mont. 1985), [215 Mont. 153,] 695 P.2d 1307, 1309, 42 St.Rep. 255, 257. Strict construction in favor of the insured applies particularly to exclusionary clauses. Lindell v. Ruthford (1979), 183 Mont. 135, 140, 598 P.2d 616, 618. However, where an exclusionary clause is not ambiguous, it must be enforced unless against public policy. Brown v. United Pacific Ins. (1986), 42 Wash. App. 503, 711 P.2d 1105, 1107. Whether or not a clause is ambiguous is a question of law for the court to resolve. See Baybutt Construction Corp. v. Commercial Union Ins. Co. (Me.1983), 455 A.2d 914, 920. The District Court found that the exclusionary clauses at issue were not ambiguous, and granted summary judgment in favor of Commercial Union. We agree.

Appellants rely upon Commercial Union Ins. Co. v. Gollan (1978), 118 N.H. 744, 394 A.2d 839 and Baybutt, 455 A.2d 914, in support of their contentions. In Gollan and Baybutt the New Hampshire and Maine Supreme Courts interpreted insurance contracts, with provisions very similar to those in the case at bar, as ambiguous.

The Gollan Court found the exclusions, when read as a whole, to be irreconcilable with each other. Consequently, the Gollan Court held Commercial Union liable for coverage of all of that plaintiff’s claims.

The exclusion upon which the Gollan Court based its decision is substantially identical to exclusion (a) contained in Taylor-McDonnell’s insurance policy.

Exclusion (a) reads:

“(a) To liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of a named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;” (Emphasis added.)

The Gollan Court read the exception to exclusion (a) as applicable to subsequent exclusions, including (n) and (o) (cited previously), and thereby found ambiguity. We disagree with this analysis and affirm the District Court’s reliance upon Stillwater Condominium Ass. v. American Home Assurance Co. (D. Mont. 1981), 508 F.Supp. 1075, in finding no ambiguity as to Taylor-McDonnell’s policy.

The exclusions at issue in Stillwater are identical to the present exclusions. Both the plaintiff in Stillwater and Taylor-McDonnell make the same argument with respect to exclusion (a) and the creation of an ambiguous contract. In Stillwater, the U.S. District Court in Butte acknowledged that in the absence of exclusions such as (n) and (o), exclusion (a) by itself would require coverage of all plaintiffs’ claims. However, the Stillwater court, relying upon Weedo v. Stone-E-Brick, Inc. (1979), 81 N.J. 233, 405 A.2d 788 and Haugan v. Home Indemnity Co. (1972), 86 S.D. 406, 197 N.W.2d 18, held that these exclusions are unambiguous in eliminating coverage for repair or replacement of the insured’s own faulty work. 508 F.Supp. at 1078-79.

The Stillwater decision specifically disagrees with the Gollan analysis concerning exclusion (a) granting coverage in spite of subsequent exclusions.

“The court will not glean the exclusions and apply exceptions where application is not meant or proper just to create an ‘ambiguity’ . . . ‘[AJmbiguity’ results only from a forced construction of the policy language.”

508 F.Supp. at 1080.

Appellant contends that where justices cannot agree and jurisdictions differ as to meaning, intent or effect of language, the contract must be ambiguous per se. See e.g. State Farm Mutual Automobile Ins. Co’s. v. Queen (Mont. 1984), [212 Mont. 62,] 685 P.2d 935; and Federal Insurance Co. v. P.A.T. Homes, Inc. (1976), 113 Ariz. 136, 547 P.2d 1050. We disagree with appellant’s argument but agree with the majority of jurisdictions which hold that this standard language found in the majority of comprehensive general liability coverage policies is unambiguous and all-inclusive. See Weedo, 405 A.2d 788.

“Our review of twenty years’ worth of judicial treatment of the ‘business risk’ exclusion demonstrates that, if nothing else, the underwriting policy sought to be articulated by clauses ‘n’ and ‘o’ has been widely recognized as a valid limitation upon standard, readily-available liability insurance coverage. Indeed, several courts have remarked in ruling upon the impact of these clauses that the terms used to convey the “business risk” exclusions are straight-forward and without ambiguity.” (Citations omitted.)

Id. at 794. Exclusion (z) contained in Taylor-McDonnell’s broader coverage policy effects the same limitations as exclusions (n) and (o).

Issue #2. Whether the District Court erred in determining that the insurance policy did not provide coverage for all claims brought by Powell County Museum and Arts Foundation.

In light of the foregoing discussion and determination that this policy is unambiguous, we hold that the District Court did not err in granting summary judgment to Commercial Union with respect to those claims made by the museum which are excluded from coverage by unambiguous policy language.

Affirmed on all issues.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON and McDonough concur.


text:
    DAVID C. COTTRILL, Claimant and Appellant, v. COTTRILL SODDING SERVICE, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 86-467.
    Submitted Sept. 15, 1987.
    Decided Nov. 3, 1987.
    744 P.2d 895.

      Jack M. Scanlon, Donald A. Garrity argued, Helena, for claimant and appellant.
    Nancy Butler argued, Helena, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, David Cottrill, appeals from an order of the Workers’ Compensation Court denying his claim for wage benefits. The Workers’ Compensation Court also denied appellant’s petition for a rehearing because the constitutional issue raised for rehearing was at no time earlier raised.

We reverse and remand to the Workers’ Compensation Court.

The issues raised on appeal are:

1. Can plaintiff raise the issue of constitutional equal protection violation at the appeal level?

2. Does Section 39-71-401(2)(c), MCA, violate the equal protection clauses of the Montana and Federal Constitutions?

The uncontested facts are as follows: David Cottrill was injured on September 15, 1985, while working within the course and scope of his employment. He was at that time an employee of Cottrill Sodding Service, a business owned by his father. At the time of the hearing he was 22 years old, single and a fifth year student at the University of Montana. David was working for his father over the summer as he had for the past three summers. He intended to return to school in the fall. At the time immediately preceding and at the time of the accident, David was living in his parent’s home, although he claimed that his “residence” was in Missoula. The sod business was insured under Plan III of the Workers’ Compensation Act, but David’s father/employer had not filed a special election of coverage for his son. Compensation for David’s claim was denied by the Workers’ Compensation Court under Section 39-71-401(2) which provides that:

“Unless the employer elects coverage for these employments under this chapter and an insurer allows such an election, the Workers’ Compensation Act does not apply to any of the following employments:
“(c) employment of members of an employer’s family dwelling in the employer’s household;”

Issue 1. Can plaintiff raise the issue of constitutional equal protection violation at the appeal level?

Respondent is correct in that the general rule is that issues brought before this Court for the first time on appeal will not be considered. Akhtar v. Van de Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152. However, this Court “reserves to itself the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law.” Even if an issue is raised for the first time on appeal this Court can hear the issue “if the alleged . . . error affects the substantial rights of a litigant.” Matter of N.B. (Mont. 1980), [190 Mont. 319,] 620 P.2d 1228, 1231, 37 St.Rep. 2031, 2033.

We hold that this appeal is properly before this Court and will be decided accordingly.

Issue 2. Is Section 39-71-401(2)(c), MCA, unconstitutional?

Appellant, David Cottrill, argues that Section 39-71-401(2)(c) violates both the Montana and Federal Constitutions. We agree.

Art. II, Section 4 of the 1972 Montana Constitution states that

“[t]he dignity of the human being is inviolable. No person shall be denied equal protection of the laws. Neither the State nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.”

This provides for even more individual protection than the comparable Fourteenth Amendment, Section 1 to the United States Constitution, which provides that: “No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

States do have the right to make reasonable classifications. Royster Guano Co. v. Virginia (1920), 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990. However, “[t]he principal purpose of the Equal Protection Clause, Amend. XIV, U.S. Const., and Article II, Section 4, 1972 Mont. Const., is to ensure that persons who are citizens of this country are not the subject of arbitrary and discriminate state action.” Godfrey v. Mont. State Fish & Game Com’n (Mont. 1981), [_Mont__,] 631 P.2d 1265, 1267, 38 St.Rep. 661, 663.

Both parties agree that the right to receive Workers’ Compensation benefits is not a fundamental right which would trigger a strict scrutiny analysis of equal protection. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Nor does this statute infringe upon the rights of a suspect class. Examples of fundamental rights are the right of privacy, freedom of speech, freedom of religion, right to vote and the right to interstate travel. Examples of suspect classifications include wealth, race, nationality and alienage. Oberg v. City of Billings (Mont. 1983), [207 Mont. 277,] 674 P.2d 494, 495, 40 St.Rep. 2034, 2036.

When a right determined to be less than fundamental is infringed upon by classification, the test applied by this Court is the rational relationship test. That is, does a legitimate governmental objective bear some identifiable rational relationship to a discriminatory classification. Godfrey, 631 P.2d at 1267.

“A classification that is patently arbitrary and bears no rational relationship to a legitimate governmental interest offends equal protection of the laws. (Cites omitted.) As we have previously held, equal protection of the laws requires that all persons be treated alike under like circumstances.”

Tipco Corp., Inc. v. City of Billings (1982), 197 Mont. 339, 346, 642 P.2d 1074, 1078.

In the present case there is nothing on the face of the statute to indicate what the state interest may be in excluding from Workers’ Compensation coverage the employer’s family member employees who reside in the employer’s household unless specifically elected by the employer. Nor is there any legislative history from which to glean a possible governmental objective for this classification.

Although this Court could speculate as to why the legislature elected to treat these select individuals differently under the Workers’ Compensation laws, no reasonable or readily identifiable state interest is forthcoming to our collective minds.

No employee whose employment falls under the Workers’ Compensation Act can personally elect coverage. Section 39-71-410, MCA. Therefore, David Cottrill is dependent upon his father to make an election of coverage for him. With very few exceptions, no other employee must take that involuntary risk. Even uninsured employers are covered in the event of employee injury. Section 39-71-501, et seq.

The class of employees being considered for equal protection purposes under the Constitution are “members of an employer’s family dwelling in the employer’s household” Section 39-71-401(2)(c), MCA, as compared to members of an employer’s family who do not dwell in the employer’s household. If this classification is applied, then an employer’s son residing in his father’s household is not covered by workers’ compensation (absent an election by his father) whereas a son residing in his own dwelling next door to his father’s household would be covered. As previously stated, no rational basis for such a distinction is contained in the statute nor has one been presented in argument to this Court. We conclude that the statutory classification violates the equal protection clause of the Montana Constitution. Because there has been a failure to demonstrate a rational basis for the infringement of such a constitutionally protected right, we hold that Section 39-71-401(2)(c), MCA, is unconstitutional.

We reverse and remand to the Workers’ Compensation Court for a determination of benefits due to David Cottrill.

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