author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF CYNTHIA KEASTER, n/k/a DAVIS, Petitioner, and ROBERT KEASTER, Respondent and Appellant, STATE OF MONTANA, CHILD SUPPORT ENFORCEMENT DIVISION, Relator, JERRY J. FLEMING, Intervenor and Respondent.
    No. 92-367.
    Submitted on Briefs March 25, 1993.
    Decided June 10, 1993.
    50 St.Rep. 669.
    259 Mont. 48.
    853 P.2d 1191.

      For Appellant: Susan L. Weber, Great Falls.
    For Respondent: James D. Elshoff, Great Falls (Fleming); John Koch, Montana Department of Revenue, Child Support Enforcement Division, Great Falls; Peggy Probasco, Child Support Enforcement Division, Butte.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a judgment entered by the Eighth Judicial District Court, Cascade County, denying appellant a stay of proceedings and a new trial. We reverse and remand.

The only question on appeal is whether the District Court erred in disallowing appellant a new trial and a stay of proceedings based upon prior Montana case law prohibiting relitigation of paternity.

This appeal involves a dissolution proceeding between Robert Keaster (Keaster) and Cynthia Keaster (a.k.a. Cynthia Davis, hereinafter, Davis). Dissolution was granted on October 3,1990 following Keaster’s default. About a month after the dissolution was final, Keaster was informed that he was not the father of the youngest of the two Keaster children. This child shall be referred to as JMK. His non-paternity of JMK was proved by a subsequent blood test.

Following this blood test which had been agreed to by Davis and Keaster, the two executed a written stipulation stating that Keaster was not the natural father of JMK. OnApril 17,1991, Keaster petitioned the court for a modification in the child support payments he was currently paying for JMK because of his non-paternity. The court held a hearing on this issue and heard testimony from both Davis and Keaster on April 30,1991. The court found that the evidence conclusively proved Keaster was not the natural father of JMK The court lowered Keaster’s child support payments in an Order for Modification of Child Support and Custody issued on May 16,1991.

Within the next several months, Cynthia applied for child support monies from the State of Montana. At this time she named the natural father of JMK. Child Support Enforcement Division (CSED) began pursuit of Jerry Fleming (Fleming), the alleged natural father, in an attempt to procure payment of child support for JMK. Fleming refused and on September 23,1991, filed a motion to intervene in the dissolution proceedings, and a motion for permanent injunction.

Fleming filed notice of his intervention with Cynthia Keaster and CSED. He did not notice Robert Keaster, a party to the dissolution. Based upon the briefs submitted by Fleming and the CSED, the District Court issued its Conclusions of Law on January 10, 1992, reinstating Keaster’s payment of child support for JMK. A copy of this order was never sent to Keaster, nor was he served with any notice of entry of judgment in this proceeding.

Keaster realized what had transpired when he was again approached by CSED for child support payments for JMK. This prompted Keaster to file a motion in April of 1992, seeking a stay of proceedings pending a new trial pursuant to Rule 59, M.R.Civ.R

Keaster sought a new trial based upon the intervenor’s failure to serve him with notice of the intervention and his subsequent loss of opportunity to defend against the reinstitution of child support for JMK. Because Keaster was never served with notice of entry of judgment, he argued that the time for filing motion for new trial had not run. The court heard arguments on these motions on May 20, 1992, and on May 26 issued an order denying Keaster’s motions. Keaster now appeals this denial.

Did the District Court err in disallowing appellant a new trial and a stay of proceedings based upon prior Montana case law prohibiting relitigation of paternity?

The denying of a new trial is within the discretion of the District Court and this Court will not disturb that ruling unless the court abused its discretion. Brockie v. Omo Construction (1992), 255 Mont. 495, 844 P.2d 61, 49 St.Rep. 1092. Here, the District Court’s denial of a new trial was rooted in previous case law of this State. In the District Court’s Conclusions of Law, the court relied on two prior Montana cases which prohibit relitigation of paternity once it is established. We evaluate a district court’s conclusions of law as to whether they are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. We, therefore, consider whether the District Court relied on the correct precedent.

The District Court’s reinstatement of Keaster’s child support for JMK was issued on January 10, 1992. In April 1992, Keaster filed a motion seeking a stay pending a new trial. Under Rule 59, M.R.Civ.P., a motion for new trial must be filed within ten days of notice of entry of judgment. The record shows that no notice of entry of judgment was served upon Keaster, and, therefore, he had no express date from which to determine the start of the ten day period. The District Court’s January 10, 1992 order relies on two prior cases from this Court in denying Keaster a new trial. The court is in error in relying on these cases.

In Butler v. Brownlee (1969), 152 Mont. 453, 451 P.2d 836, this Court dealt with a situation where a father had paid child support for several years following his dissolution and then protested. “More than four years later (after the dissolution) the husband, following attempts to collect child support from him, filed a “Motion for Modification of Divorce Decree” alleging that he ‘now has satisfactory proof that the two children as noted in the decree are not his issue.’ ” Butler, 152 Mont. at 455, 451 P.2d at 837. This husband had placed the paternity of his children in issue from the beginning of the dissolution proceedings. The court considered the husband’s arguments during the dissolution and determined paternity. The husband did not appeal.

The District Court in Butler negated the husband’s paternity and the mother applied for a writ of review from the Court. The Butler Court chose to review the proceedings and stated that:

In our view under the circumstances disclosed here, the court’s jurisdiction on the issue of parentage of the minor children became exhausted upon entry of the original divorce decree, and until that decree is reversed on appeal, or regularly amended or vacated for reasons set forth in and pursuant to Rules 59 and 60, M.R.Civ.P., the court cannot again hear or determine the issue of paternity. (Emphasis added.)

Butler, 152 Mont. at 458, 451 P.2d at 838-839.

The Butler Court made its holding specific to the facts of the case. Those facts clearly indicate that the father suspected that the children were not his during the dissolution and said so. The court considered his arguments, but did not agree.The Court stated, “But must we close our eyes to the need for immediate relief under the circumstances disclosed here?” Butler, 152 Mont. at 459, 451 P.2d at 839. The Court could not close its eyes and, therefore, issued an original writ stating that parentage could not be relitigated — under the facts of that case. The Butler ruling is still law, where circumstances reflect the same fact pattern. It does not, however, control the facts we have before us. Here Davis agrees that Keaster is not the father of JMK. Keaster did not file his action in an attempt to avoid long standing child support debts, nor did he even think to bring the issue of paternity up during the dissolution. Like the Butler Court, we do not close our eyes to the circumstances presented by the record in this case.

Butler was the case upon which a later Court based its decision. Marriage of Holland (1986), 224 Mont. 414, 730 P.2d 410. Holland broadened the Butler ruling considerably, although the underlying facts were similar. In Holland, we have a situation similar to that in Butler in that the Court was faced with another four year old dissolution in which the father was significantly behind in his child support and sought to have the paternity of the children questioned. The father in Holland, did not, however, bring the issue of paternity up until four years after the dissolution. Thus, the case is different from Butler in that the district court in Butler specifically considered the father’s arguments concerning paternity at the time of the dissolutionln both Butler and Holland the person named in the decree as the father was attempting to reduce or eliminate child support payments after a number of years. The natural father was not identified in either of these cases and the mothers failed to agree that the parties were not the fathers of the children. In contrast here, as soon as he received information that he was not the father, Keaster petitioned, and upon a hearing, both Keaster and the mother, Davis, agreed he was not the father. The court then specifically found that he was not the father. We conclude that neither Butler nor Holland is binding precedent under the facts of this case.

The key procedural failure in this case was the failure to give Keaster any notice of Fleming’s intervention and the failure to serve notice of entry of judgment upon Keaster. Fleming claims he was under no obligation to notice Keaster because Keaster had defaulted in the original dissolution proceedings. Fleming is not correct. Rule 24(c), M.R.Civ.P., provides the following with regard to intervention.

Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided by Rule 5.

In addition, Rule 5(a), M.R.Civ.P., provides the following in regard to service of order:

Except as otherwise provided in these rules, every order required by its terms to be served... shall be served upon each of the parties.

Under the above rules, notice of intervention was required to be served upon Keaster, one of the parties to the action. Fleming argues no service was required because of the initial default of Keaster. That argument disregards the dissolution modification proceedings which took place in this cause and in which Keaster did appear and secured the order of modification of child support. We conclude that Keaster was a party who had appeared in the proceeding and that Fleming was required to serve notice of intervention upon him. In a similar manner, because he was a party, we conclude that Fleming was required to serve notice of entry of judgment upon Keaster.

We further conclude that because of the failure to serve notice of intervention and of the failure to give notice of entry of judgment, there was no procedural reason for the District Court to deny Keaster’s motion for a new trial.

We reverse the order of the District Court of January 10, 1992, which reinstated Keaster’s payment of child support for JMK. Having concluded that the District Court abused its discretion in refusing a new trial, we remand the proceedings to the District Court for a new trial and consideration of such matters at it deems appropriate in a manner consistent with this opinion.

Reversed and remanded.

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


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    IN RE THE MARRIAGE OF JENA W. BOLT, Petitioner and Respondent, and JAMES W. BOLT, Respondent and Appellant.
    No. 92-368.
    Submitted on Briefs March 11, 1993.
    Decided June 10, 1993.
    50 St.Rep. 672.
    259 Mont. 54.
    854 P.2d 322.

      For Respondent and Appellant: Kenneth R. Olson, Attorney at Law, Great Falls.
    For Petitioner and Respondent: Floyd D. Corder, Corder and Allen, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighth Judicial District, Cascade County. Appellant James Bolt appeals from the District Court’s Findings of Fact, Conclusions of Law, and Order entered on April 3,1992.

We affirm.

The following issues are presented for our review:

1. Did the District Court err in adopting findings of fact that are nearly verbatim to those proposed by respondent?

2. Did the District Court err in its application of § 40-4-212, MCA, in the determination of primary physical custody of the parties’ three children?

3. Did the District Court err in its application of § 40-4-202, MCA, in the determination of the division of property?

4. Did the District Court err in denying appellant’s request to retroactively modify his pretrial child support obligation?

5. Did the District Court err in its decision not to disqualify respondent’s trial counsel based on the grounds of “conflict of interest”?

Jena and James were married on December 29, 1979, in Huntsville, Alabama. Jena has a daughter from a prior marriage who is now in the custody of Jena’s former husband. James has never been married before. James and Jena have three children — Jeremy, ten, Josh, seven, and Jessica, five.

Both Jena and James are high school graduates. James attended college for about two years, and is currently pursuing a marketing degree. Jena has had informal training in the computer field, and is presently pursuing a degree in computer science education. Both parties are in good health and employable. James was formerly employed in the insurance industry as a sales agent and Jena has worked as a secretary in the same field.

Although the parties are employable, they have had their share of financial difficulties. In 1987, while residing in Chattanooga, Tennessee, they filed a Chapter 13 bankruptcy. Their vehicle was repossessed and their home was foreclosed upon. After resettling in Great Falls, they experienced similar financial difficulties. They were unable to make the payments under the bankruptcy plan and were, therefore, never discharged in bankruptcy.

On July 3,1990, Jena filed a petition for legal separation requesting that the court divide the marital property and debts, and that she be awarded primary physical custody of the parties’ three children. Jena also filed a motion for temporary restraining order, temporary maintenance for support of the minor children, and for temporary custody of the children.

James filed an answer to Jena’s petition for legal separation on July 6,1990, requesting dissolution of the marriage and legal custody of the children. On July 10, 1990, the court granted the temporary restraining order, and in addition, ordered James to pay temporary child support and granted temporary custody of the children to Jena. This order was entered ex parte. There were additional motions filed concerning the issue of child support. Both parties were arrested for domestic abuse, and a youth in need of care proceeding was initiated. On May 28, 1991, James filed a motion to retroactively modify child support, submitting that the award was inconsistent with the Child Support Guidelines. Jena filed an answer on June 13,1991. She later filed an additional motion requesting termination of James’ temporary visitation rights. James filed a motion requesting the disqualification of Jena’s attorney due to an alleged conflict of interest. After a bench trial, each party submitted proposed findings of fact and conclusions of law. On April 3,1992, the Court entered its findings of fact, conclusions of law, and order. Notice of entry of judgment was filed on April 14, 1992.

I.

Did the District Court err in adopting findings of fact that are nearly verbatim to those proposed by respondent?

James claims that the District Court’s findings of fact were, in essence, a “verbatim” adoption of Jena’s proposed findings. Even though the District Court set out findings of fact similar or verbatim to those proposed by Jena, there is no problem in doing so if substantial credible evidence exists to support such findings. In re Marriage of Hurley (1986), 222 Mont. 287, 296, 721 P.2d 1279, 1285. We hold that the District Court’s findings of fact meet the test set out in Hurley.

II.

Did the District Court err in its application of § 40-4-212, MCA, in the determination of primary physical custody of the parties’ three children?

Because the trier of fact is able to observe the witnesses and presentation of evidence firsthand, we will not overturn the District Court in custody matters unless we find a clear “abuse of discretion.” In re Marriage of Maxwell (1991), 248 Mont. 189, 193, 810 P.2d 311, 313.

James claims that the District Court did not “address” the criteria set out in § 40-4-212, MCA, in determining primary physical custody. This Court has consistently held that the district court need not specifically address each of the criteria, but rather set forth “essential and determining’’ facts upon which it based its decision. In re Marriage of Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060.

The District Court, in the case at bar, as evidenced by the findings of fact, considered each of the criteria of § 40-4-212, MCA, before reaching its custody determination based on the “best interests of the child.”

It was obvious from Jena’s petition for legal separation, and James’ answer to the petition, that both parties wished to participate in the upbringing of the minor children. The District Court considered the requests of the parents before determining primary physical custody. Section 40-4-212(a), MCA.

As to the wishes and feelings experienced by the children, the District Court found that James has a history of violence when using alcohol and the children are afraid of him when he is drinking. The wishes of the children were considered by the court through counsel-ling by a family counselor from Golden Triangle Mental Health Center who spent time with the children in order to determine the cause of the problems they were experiencing and how the children could be helped.

The District Court addressed the issues of the interaction of the children with their parents and siblings and their adjustment to their home and school. Section 40-4-212(c) and (d), MCA. The court also addressed the issues of the mental and physical health of the parties and the issue of chemical dependency, § 40-4-212(e) and (g), MCA, and finally, the court addressed the issue of physical abuse by one parent against the other or against the child. Section 40-4-212(f), MCA.

James also contends that the District Court should have interviewed the children in order to determine their wishes as to custodial care. While this is an accepted procedure for determining the desires of the children, it is not required. Section 40-4-214(1), MCA. An alternate route is to determine the wishes of the children from professional counselors. Section 40-4-214(2), MCA. This was accomplished, as discussed above, with the aid of the family counselor from the Golden Triangle Mental Health Center.

The District Court did not abuse its discretion in its determination of primary physical custody.

III.

Did the District Court err in its application of § 40-4-202, MCA, in the determination of the property division?

In In re Marriage of Miller (1989), 238 Mont. 197, 203, 777 P.2d 319, 323, we stated the standard of review for property division in a marital dissolution decree:

The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice.

James complains about the distribution of the property. The District Court considered the station, occupation, sources of income, and vocational skills of Jena and James as required in § 40-4-202, MCA. The Court made a determination as to the division of the accumulated property, and awarded the marital property under that criteria. Section 40-4-202, MCA. The calculations were a result of the District Court’s adherence to § 40-4-202(1), MCA, in which it is required to “finally equitably apportion between the parties the property and assets belonging to either or both.” We conclude that no injustice resulted to James. We hold that the District Court did not abuse its discretion in its final determination of the property division.

IV.

Did the District Court err in denying appellant’s request to retroactively modify his pretrial child support obligation?

Modification of child support is granted only if circumstances arise that are “so substantial and continuing as to make the terms [of the temporary order] unconscionable.” Section 40-4-208(2) (b)(i), MCA.

James filed a motion for retroactive child support on May 28,1991. Even if the terms of the child support agreement were found to be unconscionable, they could only be modified back to May 28, 1991, when James gave actual notice of the motion for modification. Section 40-4-208(1), MCA. The District Court found that the child support was not unconscionable, and we agree.

The Court has wide discretion in weighing various factors under § 40-4-204, MCA, to determine appropriate support obligation. In re Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035. James claims that the District Court did not give enough weight to the fact that he is currently unemployed when the court made the support obligation determination. We disagree.

Although James is currently unemployed, he is healthy, educated, and as evidenced from his past employment in the insurance field, capable of earning a substantial income.

Contrary to James’ allegations, the District Court did consider current data when, on November 25, 1991, it reduced his pretrial support obligation to $300 per month from the previous $640 a month ordered on December 28,1990.

We hold that the District Court did not abuse its discretion in denying James’ request to retroactively modify his pretrial child support obligation.

V.

Did the District Court err in its decision not to disqualify respondent’s new trial counsel based on the grounds of “conflict of interest”?

James claims that Jena’s new trial counsel, who replaced her original counsel appointed in July 1990, possessed confidential information about his case, constituting a “conflict of interest.” The alleged confidential information was disclosed during an initial consultation between James and this particular counsel when James had considered retaining her.

James failed to raise this “conflict of interest” issue at the October 17, 1990, hearing, at the date of the order on July 3, 1990, or on the first day of trial. Even though James failed to raise the issue until November 26,1991, the second day of trial, the District Court considered James’ motion to disqualify Jena’s counsel. The motion was denied, but with the stipulation that James could renew the motion upon discovery during trial of any breach of confidential information. James failed to renew the motion because there was no articulable breach of confidentiality. Therefore, we conclude that the District Court did not err in its decision not to disqualify Jena’s trial counsel.

We affirm.

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


author: JUSTICE HARRISON JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANTHONY J. THOMPSON, Defendant and Appellant.
    No. 92-468.
    Submitted on Briefs March 11, 1993.
    Decided June 10, 1993.
    50 St.Rep. 682.
    259 Mont. 62.
    853 P.2d 1188.

      For Defendant and Appellant: William F. Hooks, Appellate Defender’s Office, Helena.
    For Plaintiff and Respondent: Hon. Marc Racicot, Attorney General; John Paulson, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney; and Dale Mrkich, Deputy Yellowstone County Attorney, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Anthony Thompson (Thompson) was convicted of criminal sale of dangerous drugs, a felony, after a jury trial in the Thirteenth Judicial District Court, Yellowstone County, the Honorable William J. Speare presiding. Thompson appeals on the grounds that District Court error and prosecutor misconduct deprived him of his right to a fair trial. We affirm the conviction.

On August 21,1991, Thompson was charged by information alleging that between July 29, 1991, and August 2, 1991, Thompson sold .5 grams of cocaine to a confidential informant working for the Billings, Montana, Police Department. This “controlled buy” was arranged by the police in the following manner.

The informant was equipped with a body wire transmitter and given $60 in bills that had been photocopied to record the serial numbers. He was taken to a vacant lot behind the Arcade Bar on Minnesota Avenue in Billings and instructed to approach a group of people in the vacant lot. A police detective in a nearby parked car observed the informant’s movements and monitored his conversations on the transmitter. Another police detective was stationed in a nearby alley where he could observe the transaction without being seen.

The informant asked one of the men if he could sell him a quarter pound of marijuana. The man said it would take him a while to get it, and left the area. The informant was then approached by Thompson, who offered to sell him cocaine. Thompson and the informant got into Thompson’s car, a white four-door Cadillac sedan. Four bags of a white substance were arranged on the front seat. The informant selected a bag, paid Thompson $50, and returned to the police detective’s car. The detective recovered the remaining $10 of the police department’s money and tested the white substance with a Valtox kit. It tested positive for cocaine; this result later was confirmed by the Montana State Crime Laboratory in Missoula.

One of the police detectives observed the entire transaction through binoculars. He also heard the informant’s conversations with Thompson and the man who agreed to sell him marijuana. Both detectives had been acquainted with Thompson previously and recognized his voice and his car. A license plate check confirmed that Thompson owned the car.

The police detectives obtained a warrant and searched Thompson’s home the next day, but found neither the money the informant had used to buy the cocaine nor any other incriminating evidence. Although the detectives had kept no record of the date on which the informant had made the controlled buy, overtime reported on their time sheets indicated that it was on August 2, 1991. The search warrant was executed on August 3, 1991.

Thompson was formally charged on August 13 and arrested on August 17,1991. At his first court appearance on August 21,1991, he pled not guilty to the charge of criminal sale of dangerous drugs. Counsel was appointed for him. Thompson later offered to retain the appointed attorney, Joseph Zavaletta, on a private basis and signed an agreement to pay him $1,000 plus $500 if the case went to trial. He paid Mr. Zavaletta $700 in February and March, 1992, but failed to complete the payments. Mr. Zavaletta represented Thompson at his trial in May but withdrew in July after Thompson told him that he intended to appeal his conviction based on ineffective assistance of counsel.

At his trial on May 26-27, 1992, Thompson presented an alibi defense based entirely on the testimony of a friend, Judalon Round-face. Thompson did not testify.

Roundface testified that during the week of July 29 through August 2, 1991, she had been Thompson’s constant companion, driving his car and accompanying him wherever he went. He had asked her to help him, she said, because he had been beaten up a few days before and his face was so badly swollen that he could not see to drive. She picked him up at his home in the morning, Monday through Wednesday of that week and again on Friday, and drove him wherever he wanted to go. She kept the car overnight all week.

On Friday, August 2, Roundface testified, she picked Thompson up “at exactly 10:15.” She and Thompson washed clothes at a laundromat that day, and then went to the Arcade Bar, arriving at four in the afternoon. Thompson remained at the Arcade Bar until it closed, Roundface said, while she left for a time to play the machines at another bar. She said that Thompson’s car remained in a parking lot on Minnesota Avenue, north of the bar, and that she kept the keys until the end of that evening. By then, Thompson was feeling well enough to drive, so he left her at the bar and drove home himself.

The jury returned a verdict of guilty of criminal sale of dangerous drugs after about six hours of deliberation on May 27, 1992. Thompson raises the following issues on appeal:

1. Whether the District Court erred in holding conferences with counsel to discuss inquiries from the jury during its deliberations, without requiring Thompson’s presence.
2. Whether the prosecutor, in his closing remarks, appealed improperly to the jury’s sympathy and prejudice.

Thompson is barred from raising these issues, however, because he did not object to the alleged errors during trial.

Thompson acknowledges that defense counsel failed to object, during the trial, to the court’s handling of the jury inquiries or to the prosecutor’s closing remarks. Section 46-20-104(2), MCA (emphasis added), provides that:

Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

The exceptions in § 46-20-701(2), MCA, require a defendant to establish first, that the alleged error was prejudicial as to his guilt or punishment; and second, that one of three conditions has been met. Thompson concedes that none of the three statutory conditions apply to his situation, but he insists that under the “plain error” doctrine this Court nevertheless may exercise its power of discretionary review. As a general rule, this Court will not entertain issues not raised at trial, and if a defendant fails to lodge a timely objection, he will not be heard on appeal. State v. Wilkins (1987), 229 Mont. 78, 746 P.2d 588. General rules are not without exception, however, and in Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169, we recognized that appellate courts have a duty to assure that the substantial rights of the parties have not been infringed.

We will invoke plain error only in exceptional cases, when it is necessary to ensure a fair and impartial trial. Wilkins, 746 P.2d at 589. We invoked plain error in Wilkins because the district court repeatedly reminded the defendant that he had a right to take the stand, thus drawing the jury’s attention to the fact that he had chosen not to testily and thereby infringing on the defendant’s right against self-incrimination.

Here, in contrast, Thompson has not shown that either of the alleged errors affected a substantial right or that he was deprived of a fair trial. With regard to the jury inquiries, the facts are as follows.

After the jury had deliberated for about an hour, the foreman sent a note to the judge stating that “we would like to know if the search warrant was issued before or after the drug purchase.” After an extended discussion with defense counsel and the prosecutor, the judge wrote the jury a note saying that the search warrant was issued on Friday, August 2,1991, and executed on August 3,1991. He stated for the record that “the court has gathered with counsel, shown them the request, and it has been agreed to answer as follows. ...”

Several hours later, the jury sent in another question, asking whether they could see the “original map” that was drawn of the Arcade Bar area. The judge discussed this request briefly with counsel and sent the jury a note saying that they could not see the map because it was not in evidence. Based on the record, no other answer could have been given. Therefore, Thompson’s substantial rights were not adversely affected by his absence.

The second alleged error occurred when the prosecutor concluded his rebuttal closing argument with the following comment:

Ladies and gentlemen of the jury, drug cases are difficult cases because drug abuse is a national issue. Drug sellers are the focus, or ought to be the focus, of the war on drugs. With your verdict you can make this community a population with one fewer drug sellers [sic] than it used to have.

Thompson argues that it is improper for a prosecutor to urge a jury “to assume the mantle of the community’s conscience and, in that capacity, to convict an accused.” Quoting a federal court of appeals opinion, he suggests that “jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem.” United States v. Monaghan (D.C. Cir. 1984), 741 F.2d 1434, 1441.

In Monaghan, however, the court held that “overstepping the bounds of proper advocacy” does not necessarily violate an accused’s right to due process. In order to “rise to constitutional proportions,” the court said, an improper prosecutorial remark must cause substantial prejudice to the defendant. 741 E2d at 1443. Here, while the prosecutor’s remarks may have been objectionable, the record contains no evidence that his closing remarks caused substantial prejudice to the defendant. Therefore, absent an objection, the remarks are not a basis for invoking the plain error doctrine.

As there is no basis for invoking the plain error doctrine, we hold that Thompson’s failure to object to the alleged errors at trial bars him from raising them on appeal.

Affirmed.

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

JUSTICE HUNT

specially concurring.

I concur in the result of the majority opinion, but not with all that is said therein.


author: JUSTICE HARRISON

text:
    E. E. KUHNS, Plaintiff and Appellant, v. THOMAS W. SCOTT and FIRST INTERSTATE BANCSYSTEM OF MONTANA, INC., a Montana corporation, and JOHN DOES I THROUGH X, Defendants and Respondents.
    No. 92-619.
    Submitted on Briefs May 6, 1993.
    Decided June 10, 1993
    50 St.Rep. 685.
    259 Mont. 68.
    853 P.2d 1200.

      For Appellant: Eldon E. Kuhns, Pro Se, Billings.
    For Defendants and Respondents: Sam E. Haddon, Esq., Randy J. Cox, Esq.; Boone, Karlberg & Haddon, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Eldon E. Kuhns (Kuhns) appeals an order of the Thirteenth Judicial District. Court, Yellowstone County, granting summary judgment to respondents Thomas W. Scott (Scott) and First Interstate Bancsystem of Montana, Inc. (FIBM). We affirm.

On November 19, 1984, respondent Scott, as president and chief executive officer of Security Banks of Montana, Inc. (now First Interstate Bancsystem of Montana, Inc.) executed an agreement to buy all of the issued and outstanding shares of Montana Bancsystem, Inc. (MBI) for $36 million. Kuhns was MBI’s principal shareholder. The transaction, described in the stock purchase agreement signed by Scott and Kuhns, was contingent on Federal Reserve Board approval. The relevant provision follows:

The Federal Reserve Board shall have approved under the Bank Holding Company Act of 1956, as amended, the transactions contemplated by this Agreement. Such approval shall not contain any material conditions unacceptable to Buyer.

After preliminary discussions with Federal Reserve Board staff, FIBM submitted a final application for approval of the stock purchase to the Federal Reserve Board of Governors (Board). The application was reviewed and approved by MBI’s general counsel, Mark Safty, and MBI’s consultant, Samuel Chase, before it was submitted.

On February 22,1985, the Board issued an order denying FIBM’s application. Although the order described FIBM as a well-managed company, owning banks in satisfactory condition, the Board was “seriously concerned” about the effect of the proposed acquisition on FIBM’s resources, “particularly the substantial reduction of [FIBM’s] capital and [FIBM’s] increased reliance on debt.” Finding that the proposed acquisition, which involved thirteen banks and “a significant amount of debt” held by MBI, would reduce FIBM’s tangible primary capital below the level specified in its Capital Adequacy Guidelines, the Board concluded that the acquisition would not be in the public interest.

In April 1986, Kuhns and two of MBI’s other shareholders, Christine Goodnow and Robert Grimes, brought an action against Scott and FIBM, claiming breach of the stock purchase agreement and two contingent contracts — a consulting agreement and an employment agreement — between FIBM and Kuhns. The complaint alleged that Kuhns had been damaged in an amount equal to the total value of the compensation and benefits he would have received under the consulting and employment agreements, or approximately $3.6 million.

In addition to breach of contract, the plaintiffs claimed that Scott had “deliberately, improperly, and without justification or excuse caused FIBM to breach its duties under the stock purchase agreement” and thus interfered with Kuhns’ prospective contractual relations with FIBM, and that FIBM had “deliberately and systematically operated its businesses and arranged financing of its MBI acquisition in a manner designed and intended to cause the Federal Reserve Board to disapprove the transaction” and thus breached its duty of good faith and fair dealing.

The respondents denied all allegations and in their answer took the position that the plaintiffs were estopped by their own conduct or that of their agents from asserting any claims against Scott and FIBM.

In September 1986, Kuhns filed a petition for relief in bankruptcy court, under Chapter 11. His lawyer for the bankruptcy proceeding moved to withdraw as counsel for plaintiff Robert Grimes in the breach of contract action, on the grounds that Grimes had sued Kuhns and was therefore listed as Kuhns’ creditor, creating a conflict of interest for the lawyer. In July 1987, the plaintiffs filed a notice of substitution of counsel, but by April 1989 both the substituted firms had withdrawn.

In November 1989, FIBM moved to dismiss the breach of contract action for failure to prosecute, pointing out that the plaintiffs had taken no action other than filing a set of interrogatories and requests for discovery in July 1987. Kuhns’ bankruptcy lawyers filed an objection, stating that the plaintiffs were without representation in this case, though their firm was representing Kuhns in bankruptcy court; that the bankruptcy court had refused to authorize litigation to proceed until reorganization was more certain; and that until Kuhns’ reorganization plan was confirmed, it would be unfair to dismiss the plaintiffs’ breach of contract action.

The bankruptcy court approved Kuhns’ reorganization plan in December 1989, and the District Court denied FIBM’s motion to dismiss in January 1990. A scheduling conference was held on April 3.1990, but the District Court decided that no schedule for discovery or trial could be set because the plaintiffs were not represented by counsel. On April 5, 1990, the court ordered the plaintiffs to obtain counsel by May 7, 1990.

On May 11,1990, the District Court dismissed plaintiffs Grimes and Goodnow on FIBM’s motion. Gene Huntley of Baker had entered an appearance as counsel for Kuhns on May 7, and on May 14 he entered a general appearance for Grimes and Goodnow, too late to prevent them from being dismissed by the court. On June 12,1991, FIBM moved for summary judgment on the grounds that no contract existed because a condition precedent — Federal Reserve Board approval — had not been fulfilled, and that Kuhns could not maintain in his individual capacity a breach of contract claim that belonged to MBI.

Kuhns requested an extension of the deadline for responding to FIBM’s motion, stating that Mr. Huntley had breached his contingent fee hiring agreement by refusing to respond to FIBM’s motions and that he would have to respond pro se. An extension was granted and on July 1.1991, Kuhns filed abrief and affidavit, pro se, contending that factual issues existed, in particular the issue of whether the respondents had breached the covenant in the stock purchasing agreement that required them to use reasonable and continuous efforts to satisfy the conditions precedent, including adequate financing.

Mr. Huntley withdrew as Kuhns’ lawyer on July 10, 1991, citing Rule 1.16(b) of the Rules of Professional Conduct, which allows a lawyer to withdraw if the client makes representation unreasonably difficult. In his accompanying affidavit, Mr. Huntley stated that he had asked Kuhns to provide an independent banking expert who would testify that FIBM intended that the Board would disapprove the purchase of MBI, and that Kuhns had promised to provide such an expert but had not done so.

The District Court granted summary judgment in favor of FIBM on October 16, 1992. Kuhns appealed, pro se, raising several issues. We restate them as follows:

1. Whether the District Court erred in finding that no issues of material fact exist in this case.
2. Whether the District Court erred in finding no evidence that Scott caused FIBM to breach its duties under the stock purchase agreement between MBI and FIBM.
3. Whether the District Court erred in finding no evidence that FIBM breached the implied covenant of good faith and fair dealing.

The primary issue is whether the District Court erred in granting summary judgment, not as to the plaintiffs’ original breach of contract claim but as to their claims regarding Scott’s alleged interference with contract and FIBM’s alleged breach of the implied covenant of good faith and fair dealing. The District Court determined correctly that the stock purchase agreement never became binding on either MBI or FIBM, due to failure of a condition precedent — Federal Reserve Board approval. See Management, Inc. v. Mastersons, Inc. (1980), 189 Mont. 435, 616 P.2d 356 (buyers’ failure to obtain financing rendered a real estate contract a nullity because the “subject to financing” clause was a condition precedent).

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The initial burden of demonstrating the absence of a genuine issue of material fact lies with the moving party. Ravalli County Bank v. Gasvoda (1992), 253 Mont. 399, 401, 833 P.2d 1042, 1043. Once the moving party has met that burden, the party opposing summary judgment must establish that genuine issues of material fact exist. Peschel v. Jones (1988), 232 Mont. 516, 521, 760 P.2d 51, 54. Conclusory or speculative statements are insufficient to raise a genuine issue of material fact. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069.

I

Did the District Court err in finding that no issues of material fact exist in this case?

Kuhns argues that whether FIBM used “reasonable and continuous efforts to cause every condition precedent to the other party’s obligations to be satisfied,” as the stock purchase agreement required, is an issue of material fact. He claims, for example, that his briefs, affidavits, and exhibits make it “abundantly clear” that FIBM had a duty to arrange “such debt and equity financing as was necessary” to meet the Federal Reserve Board’s requirements. He claims further that in a letter dated January 2, 1985, he informed FIBM of several ways to “improve FIBM’s financial resources, decrease debt and increase capital.” Because FIBM did not adopt any of these suggestions, Kuhns argues, FIBM did not make reasonable efforts to obtain Board approval.

FIBM contends that the contract did not require FIBM to comply with material conditions unacceptable to it, even if those conditions were imposed by the Board. William G. Wilson, FIBM’s senior vice president, stated in his affidavit that all of Kuhns’ suggestions would have increased the cost of acquisition, and one would have required a $5 million to $7.5 million loan from the Scott family to FIBM.

The stock purchase agreement provided for financing as follows: Buyer [FIBM] shall have arranged such financing as is reasonably necessary for it to consummate the purchase of Shares hereunder, on terms and conditions reasonably acceptable to it....

The record shows that FIBM obtained a commitment from First Bank Minneapolis to loan FIBM $25 million, issued in November 1984 and valid through June 1985. Kuhns does not argue that this amount was not adequate to pay the purchase price; instead, he argues that the agreement called for “adequate financing,” which is “that which will be approved by the Fed Board.” As the Board had expressed its concerns about debt financing before FIBM submitted its proposal, Kuhns argues, FIBM was obligated under the contract to arrange financing other than debt financing.

The District Court characterizes this dispute as a disagreement as to what was required of FIBM under the “reasonable efforts” clause in the stock purchase agreement, rather than a factual issue. We agree. A mere difference of interpretation does not amount to a genuine issue of material fact. See Sprunk v. First Bank System (1992), 252 Mont. 463, 830 P.2d 103 (plaintiff, appealing from summary judgment in favor of a bank holding company, recited “facts with his owm interpretations and conclusions,” which, we decided, did not raise a genuine issue of material fact). Kuhns failed to support his interpretation of the “reasonable efforts” clause with evidence that FIBM did not make efforts that were reasonable under the terms of the contract. FIBM, on the other hand, presented evidence that MBI’s own consultant, along with MBI’s general counsel, had approved FIBM’s final application to the Board; that FIBM had spent approximately $400,000 in attorneys’ fees in attempting to obtain Board approval; and that FIBM actually had obtained adequate financing.

Nothing in the stock purchase agreement required FIBM to obtain a specific type of financing or to increase its capital. In fact, Mark Safty, MBI’s general counsel in 1984-85, stated in his affidavit that “it was the intention and agreement of the parties that... the bottom-line cost of the transaction to FIBM could not be increased,” and that FIBM had no contractual obligation to “inject additional capital.”

We conclude that there is no genuine issue of material fact with regard to FIBM’s reasonable efforts to obtain Board approval of its proposed acquisition, or with regard to the adequacy of FIBM’s proposed financing. As Kuhns has not met his burden of establishing that genuine issues of material fact exist, FIBM is entitled to judgment as a matter of law.

II

Did the District Court err in finding no evidence that Scott caused FIBM to breach its duties under the stock purchase agreement?

In their original complaint, Kuhns and the other plaintiffs alleged that Scott deliberately and maliciously caused FIBM to breach its duties under the stock purchase agreement. In his brief on appeal, Kuhns merely contends that Scott, as chief executive officer of FIBM, could have increased FIBM’s equity capital to “bring it in compliance with the [Board’s guidelines],” but did not. He suggests that Scott “may well have had a personal conflict” because increasing FIBM’s equity capital would have meant diluting Scott’s ownership interest in FIBM.

The District Court found that Kuhns had presented no evidence that Scott acted in a manner that would subject him to personal liability. We agree. To establish a claim against Scott individually, Kuhns would have to show that Scott had acted for his own pecuniary benefit and against the best interests of the corporation (FIBM); or that he had acted outside the scope of his employment. 25, 773 P.2d 694, 708. Instead, Kuhns merely speculated about Scott’s motivation. No evidence appears anywhere in the record that Scott acted for his own benefit or against FIBM’s best interests.

We conclude that no genuine issue of material fact exists as to Scott’s personal liability and that Scott is entitled to judgment as a matter of law.

Ill

Did the District Court err in finding no evidence that FIBM breached the implied covenant of good faith and fair dealing?

The plaintiffs alleged in their complaint that FIBM “deliberately and systematically” arranged financing of the MBI acquisition “in a manner designed and intended to cause the Federal Reserve Board to disapprove the transaction,” contrary to the standard of good faith and fair dealing. On appeal, Kuhns argues that because FIBM knew its proposed financing would be unacceptable to the Federal Reserve Board, and did nothing, it is “in clear violation of § 28-1-211, MCA.”

In Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775, we held that every contract contains an implied covenant of good faith and fair dealing, and that § 28-1-211, MCA, defines the required standard of conduct as “honesty in fact and the observance of reasonable commercial standards of fair dealing.”

Here, the District Court properly concluded that Kuhns had presented no evidence showing that FIBM acted dishonestly or in contravention of reasonable commercial standards. Indeed, the record indicates that FIBM tried in good faith to achieve Federal Reserve Board approval. No reasonable commercial standard required FIBM, or Scott, to increase FIBM’s cost of acquiring MBI in order to obtain Board approval. For that reason, we need not consider whether a special relationship existed that would support tort damages.

We hold that no genuine issue of material fact exists regarding a breach of the implied covenant of good faith and fair dealing, and that FIBM is entitled to judgment as a matter of law.

Affirmed.

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


author: JUSTICE NELSON

text:
    WILLIAM W. ROCHE, Petitioner and Appellant, v. NANCY SABO, Justice of the Peace, Ravalli County, Respondent and Respondent, and PATRICK HOWARD, Intervenor.
    No. 93-074.
    Submitted on Briefs May 27, 1993.
    Decided June 10, 1993
    50 St.Rep. 689.
    259 Mont. 76.
    853 P.2d 1258.

      For Appellant: William W. Roche, Grantsdale, pro se.
    For Respondent and Respondent: George C. Corn, Ravalli County Attorney, Hamilton, Patrick R. Howard, Hamilton.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District, Ravalli County, wherein the District Court vacated a Peremptory Writ of Mandamus dated May 29,1992; dismissed the “Complaint at Law for a Peremptory Writ of Mandamus” of William W. Roche, Petitioner and Appellant herein; awarded attorney fees to Intervenor Patrick Howard; and remanded to the Justice Court for further proceedings. We affirm.

William W. Roche was a defendant in an unlawful detainer/eviction case in the Justice Court of the Hon. Nancy Sabo, Ravalli County Justice of the Peace.

After a bench trial, the Justice Court found against Mr. Roche and ordered his eviction for nonpayment of rent. Mr. Roche filed his Notice of Appeal from the Justice Court judgment, but failed to perfect the appeal by filing the statutory undertaking prescribed by § 25-33-201, MCA. The appeal was subsequently dismissed.

Mr. Roche then filed a “Complaint at Law for a Peremptory Writ of Mandamus” in the District Court. Patrick Howard, the plaintiff/landlord in the Justice Court action, successfully moved to intervene in the District Court case, and, in due course, moved for judgment on the pleadings. Judge Sabo joined in the motion. The District Court, stating that it considered matters outside the pleadings, treated the intervenor’s motion as one for summary judgment and entered its Findings of Fact, Conclusions of Law and Order which found, inter alia, that Mr. Roche’s approach to the case was designed to frustrate the lawful, final judgment of the Justice Court.

The District Court vacated its Peremptory Writ of Mandamus entered on the basis of Mr. Roche’s Complaint, dismissed his Complaint with prejudice, awarded the intervenor his attorney fees and remanded the matter to the Justice Court for execution of the judgment and further proceedings. This appeal followed.

The District Court was correct in vacating the Peremptory Writ of Mandamus and in dismissing Mr. Roche’s Complaint at Law for Peremptory Writ of Mandamus. Section 27-26-102, MCA, governs the issuance of a writ of mandamus by a district court to a justice court. That section provides that the writ must be issued "... in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.” Section 27-26-102(2), MCA.

In Maloney v. Gordon (1992), 254 Mont. 314, 316, 837 P.2d 1341, 1342, we held that where a litigant has a plain, speedy and adequate remedy at law by way of a trial de novo in district court, he is not entitled to a writ of mandamus.

Notwithstanding that Mr. Roche had a plain, speedy and adequate remedy in the ordinary course of the law by way of an appeal from the Justice Court judgment and trial de novo in District Court, and, while he filed his notice of appeal, he failed to perfect the appeal by filing the undertaking required by § 25-33-201, MCA. As a result, the District Court did not obtain jurisdiction over the action. The appeal was a mere nullity and was properly dismissed. Berry v. Seman (1990), 245 Mont. 335, 337, 801 P.2d 589, 590.

Furthermore, with respect to appeals from Justice Court, Section 25-33-101, MCA, provides:

Exclusive Method of Review. A judgment or order in a civil action, except when expressly made final by this code, may be reviewed as prescribed in this chapter and not otherwise. A party aggrieved may appeal in the cases prescribed in this chapter. (Emphasis added.)

Mr. Roche’s exclusive method of review of the Justice Court judgment was by way of appeal and trial de novo in District Court. In failing to properly exercise that right of appeal, he is not entitled to use mandamus as a substitute.

Finally, we find no abuse of discretion by the District Court awarding Intervenor Howard his attorney fees under the circumstances of this case. The District Court found that:

Mr. Roche’s approach to this case has been one designed to frustrate the lawful judgment of the Justice Court and prolong these proceedings for his personal financial gain and with complete disregard for the law and proper procedure. In such a case an award of attorney fees and costs is proper and fitting.

In Christopherson v. State (1987), 226 Mont. 350, 355, 735 P.2d 524, 527, we upheld the District Court’s award of attorney fees to an intervenor in a mandamus action pursuant to the Comb’s equity powers. Similarly, we find that the award of attorney fees is supported by the record and was within the equity powers of the Court in this case.

Affirmed.

JUSTICES HARRISON, GRAY, HUNT, and TRIEWEILER concur.