author: MR. CHIEF JUSTICE TURNAGE

text:
    In the Matter of the MALE CHILD BORN JULY 15, 1985 TO L.C. In re the TERMINATION OF PARENTAL RIGHTS of L.A.C. and D.S.C.
    No. 85-592.
    Submitted on Briefs Feb. 26, 1986.
    Decided May 15, 1986.
    718 P.2d 660.

      Yardley & Yardley, Jack Yardley, Livingston, for appellant.
    Lineberger & Davis, Peter S. Lineberger, Bozeman, for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The birth mother, L.A.C., appeals the District Court’s order which determined, overall, not to interfere with the child’s adoption in Idaho. Although we sympathize with L.A.C.’s natural maternal feelings, the outcome of this appeal is dictated by legal procedure. We affirm.

The primary issue for us to consider here concerns the jurisdiction of Montana district courts over a Montana born child who has been transferred and adopted in Idaho. If the Montana district courts had lost jurisdiction, then the adoption of the child in Idaho was legal, and this Court has no jurisdiction to interfere.

Montana and Idaho have adopted the Interstate Compact on Placement of Children. Section 41-4-101, MCA; Section 16-2101, I.C.A. The states have also adopted versions of the Uniform Child Custody Jurisdiction Act. Section 40-7-101 et seq., MCA; Section 32-1101 et seq., I.C.A. Both the Compact and the Uniform Act have the goal of preventing jurisdictional tug-of-wars over children by the member states. This case presents a contingency not anticipated by the statutes, but which can be solved by application of the statutes with a recognition of their broader principles and goals.

L.A.C. was an expectant mother residing in Park County, Montana. She had recently been divorced from her husband for a second time and doubted her ability and desire to raise the child. Two months prior to the birth of her child, she contacted AID Adoption Agency, Inc. (AID) of Idaho for assistance in placing the child in a proper home for adoption. AID provided counseling to L.A.C. and assisted her in selecting a suitable family to raise her child. L.A.C. expressed her desire that the child be transferred to the prospective parents in Idaho immediately after birth. In compliance with L.A.C.‘s wishes, AID set out to expedite the process of a legal transfer of the child to Idaho. Papers were drawn and administrative agencies contacted. The child was born, and two days later L.A.C. signed forms relinquishing her parental rights and consenting to adoption. The relinquishment form states as follows:

CONSENT FOR RELINQUISHMENT OF PARENTAL RIGHTS

“I, [L.A.C.] of Clyde Park, Montana, declare that I am the natural mother of the unamed [sic] male child who was born at the Livingston Memorial Hospital in Park County, Montana on July 15, 1985.
“Believing it to be in the best interests of said child, I do hereby freely, voluntarily and irrevocably release and relinquish forever all of my parental rights, privileges and claim to said child including the right to inheritance and agree that from the date of execution of this document, my interests shall be terminated and said child shall to all legal interests and purposes be relinquished to the custody of Aid Adoption Agency, Inc., a private adoption agency licensed in Montana and Idaho.
“I further state that I understand that this relinquishment will be submitted by Aid Adoption Agency, Inc., for the purpose of obtaining an order to terminate my right to the said minor child and for the purpose of transferring custody to the above-referenced agency for placement with adoptive parents. I hereby waive notice to any proceeding necessary to effect the termination of my parental rights.
“DATED this 11th day of July, 1985.
“/s/ [L.A.C.]
“SUBSCRIBED AND SWORN to before this 17th day of July 1985.
“s/s June Miller
“Notary Public for the State of Montana Residing at Wilsall, Montana. My commission expires: 10-16-85”

AID sent copies of the relinquishment documents and notice of placement for adoption to the appropriate authorities in Idaho. Three days after the child’s birth, an AID representative took the child to the adoptive family in Idaho, as had been agreed. Three days later, L.A.C. notified the AID representative that she had changed her mind and did not want to give the child up for adoption. L.A.C. filed a petition to revoke her consent to the adoption and obtained an ex parte temporary restraining order from the Park County District Court, prohibiting adoptive placement of the child and ordering that he be returned to Montana. By this time, however, Idaho had approved the child’s placement for adoption, and the child was legally placed with the adoptive family. Also at this time, AID filed its petition in the Park County District Court for an order of termination of parental rights. Montana’s Department of Social and Rehabilitation Services and the AID representative attempted to arrange for the child to be brought back to Montana, but the adoptive parents would not agree to that. Instead, the adoptive parents initiated adoption proceedings in Idaho and obtained a temporary restraining order from the Idaho district court, prohibiting removal of the child from their custody until the outcome of the adoption proceedings. A final adoption order was entered in Idaho.

After that time, the Montana District Court, with a new judge presiding, held a hearing on L.A.C.’s petition to revoke her consent to adoption and relinquishment of parental rights. AID presented testimony and evidence at the hearing. The court held that L.A.C. was not a “sending agency” under the Interstate Compact on Placement of Children, Section 41-4-101, MCA, and, because of that it set aside the Montana court’s prior restraining order. It also held that AID was not in violation of any court order, that L.A.C.’s parental rights were terminated, and that it was in the child’s best interests to remain with the adoptive parents in Idaho.

L.A.C. sought a writ of supervisory control from this Court, which was denied. She now appeals.

This opinion will first consider the effect of L.A.C.’s relinquishment of parental rights on the District Court’s jurisdiction. L.A.C.’s contention that she is a “sending agency” under the Interstate Compact will be discussed as a sub-issue to the District Court jurisdiction issue. We will then consider L.A.C.’s challenges to the adoption proceedings in Idaho. The opinion will conclude with a discussion of this Court’s jurisdiction. We make no conclusion as to our jurisdiction if L.A.C.’s arguments had been correct.

L.A.C.’s conduct over a period of two months were directed at giving her child up for adoption to a family of her choice in Idaho. Towards this end she engaged the services of AID. She voluntarily signed and executed a form relinquishing her parental rights to AID. This relinquishment had legal consequences that determine the case.

The effect of L.A.C.’s execution of the relinquishment form can be found in Sections 40-6-135(1) and (7), MCA. Subsection (1) provides how a natural mother can relinquish her parental rights:

“(1) Any parent or guardian who proposed to relinquish custody of a child for purposes of placing the child for adoption may do so by executing a relinquishment by which all parental rights to the child are voluntarily relinquished to an agency of the state of Montana or a licensed adoption agency.”

Thus, L.A.C.’s parental rights were relinquished when she executed the form. No additional procedure was required for the relinquishment. When L.A.C. relinquished her parental rights to AID, AID became a “sending agency” as defined by the Interstate Compact. Section 41-4-101, Art. II, MCA. As a sending agency, AID had the power to place the child for adoption in Idaho. See Section 41-4-101, Art. V., MCA. Consequently, the only standing L.A.C. then had in the Montana courts was to seek a revocation of the relinquishment.

Subsection (7) provides the only method by which a voluntarily executed relinquishment can be revoked:

“(7) Upon petition of a person who executed a relinquishment and of the agency of the State of Montana or licensed adoption agency to which the child was relinquished, the court with which the relinquishment was filed may grant a hearing to consider whether the relinquishment should be revoked. A relinquishment may not be revoked if the child has been placed for adoption . . . .” (Emphasis added.)

Thus, Subsection (7) requires both the adoption agency and relinquishing parent to petition the court before the relinquishment can be revoked.

We interpreted substantially similar statutory precursors to the provisions just quoted in In Re Adoption of B.G.B. (1979), 183 Mont. 347, 353, 599 P.2d 375, 379, where we stated:

“Clearly, a construction of this section [(1)] along with subsection (7) of the same statute requires a determination that a strong public policy interest exists surrounding the finality of parental releases, and one who voluntarily signs a parental release cannot willy-nilly revoke that release.”

We held that the procedure contained in subsection (7) is required when there is no issue of voluntariness of the parental release. B.G.B., 599 P.2d at 379. There is no issue of voluntariness here. Therefore, L.A.C. could only petition the District Court to revoke the relinquishment with AID as a co-petitioner. Section 40-6-135(7), MCA. Because AID was not a co-petitioner, the District Court was without authority to revoke the relinquishment. Moreover, by the statute the relinquishment became irrevocable when the child was placed for adoption in Idaho. We hold that once the child was placed for adoption in Idaho, and the relinquishment became irrevocable, Montana lost jurisdiction.

L.A.C. argues that she was the “sending agency”, and that, under the Interstate Compact she had jurisdiction to effect return of the child. See Section 41-4-101, Art. V, MCA. The Interstate Compact defines “sending agency”:

“(2) ‘sending agency’ means a party state, officer or employee thereof; a subdivision of a party state or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency, or other entity which sends, brings, or causes to be sent or brought any child to another party state;”

Section 41-4-101(2), Art. II, MCA. L.A.C. relinquished her parental rights to AID who then effectuated the transfer of the child to Idaho. We find that AID was the sending agency.

L.A.C. asks us to interpret the above-quoted definition to include a parent who initiates an adoption by relinquishing her rights to an adoption agency. Such an interpretation would mean that no state or private licensed adoption agency would ever be able to act with assurance that its conduct was final. We will not interpret the definition so broadly.

L.A.C. also argues that the child was not properly placed for adoption in Idaho, because AID did not have approval of Idaho prior to the transfer as required by Article III of the Interstate Compact. As such, she believes she can still revoke her relinquishment of parental rights. This argument fails for two reasons: (1) L.A.C. would still require AID as a co-petitioner before the District Court could revoke the relinquishment; and (2) Idaho’s notification and approval procedures are matters to be worked out between AID and Idaho. L.A.C. has no standing to attack the adoption process in Idaho because she relinquished her parental rights to AID. Under Article V of the Compact, AID then had the power to effect the transfer of the child to Idaho. We note that the only reason the transfer occurred before the formal notice and approval of Idaho was because of L.A.C.’s request for expediency.

Finally, L.A.C. argues that Montana still has jurisdiction because AID did not obtain a Montana District Court order terminating parental rights prior to placing the child in Idaho. She refers us to Section 40-8-103(10), MCA, which defines “placement for adoption” as “the transfer of physical custody of a child with respect to whom parental rights have been terminated and who is otherwise legally free for adoption to a person who intends to adopt the child.” From this she argues that because AID had not secured the termination order, the “placement” in Idaho was improper, and AID, therefore, has “unclean hands.” We disagree.

First, we note that by Section 40-6-135(5) it was mandatory upon the District Court to issue an order terminating parental rights when the relinquishment was filed. AID, therefore, had no reason not to assume that the order of termination was forthcoming. We further note that the definition relied upon by L.A.C. does not require a judicial termination order. Rather, the definition only requires that parental rights have been terminated. The relinquishment form specifically states that L.A.C.’s parental rights were terminated when the form was executed. We hold that L.A.C.’s parental rights were terminated when she executed the form relinquishing her parental rights.

L.A.C. points to A.R.M. Section 46-5-440(6) which states:

“Agencies must secure a court order terminating the parental rights of the birth parents and legal authority to place the child for adoption prior to adoptive placements.”

AID had authority to place the child in Idaho under Article V of the Compact. However, L.A.C. claims that since AID had not secured the court order terminating parental rights, the placement was illegal.

Whether or not AID obtained a termination order in Montana is irrelevant to the child’s adoption in Idaho. The Idaho Code does not require a judicial termination of parental rights prior to adoption. Rather, the adoption decree automatically results in a termination of parental rights. Section 16-1509,1.C.A. In Idaho only the consent of the natural parents is required in its adoption proceedings. See, Sections 16-1504 and -1509, I.C.A. The Idaho district court was presented with the natural parents’ properly executed consents to adoption and relinquishments of parental rights. Once the adoption decree was entered, L.A.C.’s parental rights were judicially terminated by operation of Section 16-1509, I.C.A. We can see nothing illegal or improper about the child’s adoption in Idaho.

We will now consider this Court’s authority to interfere with the Idaho district court’s adoption decree. Section 40-7-114, MCA, provides in part:

“The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which has assumed jurisdiction under statutory provisions substantially in accordance with this chapter . . .”

Idaho had jurisdiction over the adoption proceedings under a statute substantially similar to Section 40-4-211, MCA. See Section 32-1103, I.C.A. Therefore, by Section 40-7-114, MCA, we must recognize the Idaho adoption decree and have no jurisdiction to interfere. We note that a similar decision is mandated by the Full Faith and Credit Clause of the United States Constitution and Montana statutes. See U.S. Const., Art. IV, Section 1, and Section 26-3-203, MCA.

Because this Court has no jurisdiction to interfere with the child’s adoption, we need not consider appellant’s challenge to the District Court’s finding that the child’s best interests would be served by remaining with its adoptive parents. We will comment, however, that the finding is supported by substantial evidence.

The District Court is affirmed in its order terminating parental rights and its recognition of the child’s legal adoption in Idaho.

MR. JUSTICES WEBER, MORRISON, HUNT and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE MORRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PATRICK CAIN, Defendant and Appellant.
    No. 85-548.
    Submitted on Briefs March 21, 1986.
    Decided May 15, 1986.
    718 P.2d 654.

      Larry Mansch, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Richard A. Simonton, Co. Atty., Glendive, Marvin L. Howe, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant, Patrick Cain, appeals his conviction of the offense of theft following a jury trial in the Seventh Judicial District Court, County of Dawson. We affirm the conviction.

On November 15, 1984, defendant and Burl Keith Hunter were arrested and charged with the theft of approximately $19,000 worth of drilling bits from Security Bits of Glendive, Montana. Hunter pled guilty. Cain pled not guilty, claiming that he was unaware of any criminal wrongdoing.

Hunter was the state’s key witness at Cain’s trial. He testified that he had known defendant for three or four years. He came to Miles City in November of 1984 to visit with defendant and to “party”. While in Miles City, Hunter drove a three-quarter ton Ford pickup truck belonging to Eastman Whipstock, an oil field company located in Casper, Wyoming.

Hunter further testified that on November 7, 1984, after drinking heavily, he and Cain attempted to steal some drilling bits from various drilling rigs. The plan failed. The next day the two went to Glendive, Montana, called Security Bits and arranged to meet its representative at the shop in order to procure some bits.

Allan Swenson, sales manager for Security Bits, was out of town for the weekend. Melvin McDanold had agreed to be “on call” for Swenson in the event someone wished to make a purchase from the shop. McDanold and a friend, Danny Grigsby, met Hunter and defendant at the shop. Hunter testified that he then “took charge”. He told McDanold that his name was Wayne Harther, he worked for an oil company out-of-state and he needed to purchase certain drill bits. Eight bits were then selected and loaded into Hunter’s truck. Hunter signed an invoice for the bits using his assumed name, Wayne Harther. Thereafter, according to Hunter, he and defendant went to Gettysburg, South Dakota, where they sold the eight drill bits for $1900. The money was divided equally between the two and they returned to Miles City.

Other witnesses for the State substantiated most of Hunter’s testimony. McDanold testified that a “Wayne Harther” (Hunter) had called November 8, 1984, and stated he worked at Coastal Oil and Gas and needed some drilling bits. Hunter and a second individual (defendant) met McDanold at the shop. Hunter introduced himself as Wayne Harther. McDanold was unsure whether defendant was present at the time of the introduction but was fairly certain defendant could have heard the introduction. Hunter was definitely in charge. Defendant was “just there”. After the bits were located, Hunter signed the invoice as Wayne Harther and departed.

Grigsby, McDanold’s friend who accompanied him to the shop, testified that he and defendant had primarily stood around and talked while Hunter and McDanold searched for the bits. Hunter appeared to be in charge. Grigsby also stated that he was unsure whether defendant had heard Hunter introduce himself as Harther as defendant might have still been in the truck. After Hunter stated he was from Casper, Grigsby inquired of defendant whether he knew some of Grigsby’s friends in Casper. Defendant stated that he had just moved from Oklahoma and did not know anyone.

The remainder of the relevant testimony came from a law officer. Highway Patrolman Warren Schiffer testified that after stopping Hunter on November 10, 1984, for a speeding violation, he discovered the truck had been reported stolen by Eastman Whipstock. Hunter and defendant were both arrested. Defendant was subsequently released. At the time of arrest, Hunter had six $100 bills on his person and defendant had large bills totaling at least $250.

At the close of the State’s case-in-chief, defendant’s attorney moved for a directed verdict on two grounds: 1) the State failed to prove its case beyond a reasonable doubt; and 2) sufficient corroboration of the accomplice, Hunter’s testimony. The motion was denied and the trial continued. Defendant was convicted of theft and received an eight-year suspended sentence.

On appeal, defendant raises the following issue:

Whether the trial judge erred, pursuant to Section 46-16-213, MCA, in denying defendant’s motion for a directed verdict at the close of the State’s case?

Section 46-16-213, MCA, states:

“Testimony of person legally accountable. A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence must show more than the fact that a crime was committed. It must raise more than a suspicion concerning defendant’s involvement in the crime. However, it need not be sufficient, on its face, to support a prima facie case against defendant. State v. Kemp (1979), 182 Mont. 383, 386-387, 597 P.2d 96, 99. The evidence need only “tend to connect” defendant with the crime. State v. Mitchell (Mont. 1981), 625 P.2d 1155, 1158. 38 St.Rep. 487, 489-490. Further, the evidence may be circumstantial and it may come from the defendant or his witnesses. Kemp 182 Mont. at 387, 597 P.2d at 99.

Hunter’s testimony implicating defendant was corroborated by testimony indicating that defendant knew Hunter was using an alias and testimony suggesting that defendant told Grigsby he was residing in Casper, Wyoming. Further, it is undisputed that defendant was at Security Bits at the time the bits were stolen. Finally, defendant was arrested with over $200 cash in his pocket on the road between South Dakota and Miles City two days after the theft. This is consistent with Hunter’s testimony that he and defendant sold the drill bits in South Dakota for $1900 cash.

The testimony against defendant is circumstantial. But, as a matter of law, it is not insufficient to corroborate the accomplice’s testimony. The testimony might also be, as defendant contends, consistent with innocent conduct on the part of defendant. Defendant’s mother might have provided him with money for a job-hunting expedition to South Dakota. Defendant might not have heard Hunter introduce himself as Wayne Harther. However, these are factual questions, properly resolved by the jury. State v. Anderson (1982), 197 Mont. 374, 378, 643 P.2d 564, 566. The trial judge did not err when he refused to grant defendant’s motion for a directed verdict.

Affirmed.

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


author: MR. JUSTICE HARRISON

text:
    GAYLE L. KAISER, Plaintiff and Appellant, v. TOWN OF WHITEHALL, Montana, Defendant and Respondent.
    No. 85-532.
    Submitted on Briefs March 28, 1986.
    Decided May 19, 1986.
    718 P.2d 1341.

      Burgess, Joyce & Whelan, Thomas J. Joyce, Butte, for plaintiff and appellant.
    Harrison, Loendorf & Poston, James T. Harrison, Jr., Helena, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This case comes on appeal from an order of the District Court of the Fifth Judicial District, Jefferson County, granting defendant Town of Whitehall summary judgment. We reverse the summary judgment of the District Court and remand this case for trial on the merits.

On May 25, 1983, the plaintiff, Gayle Kaiser (“Kaiser”), age 69, was walking to the Whitehall post office along with her unleashed dog. Kaiser lived several blocks from the post office and it was necessary for her to use a public sidewalk maintained by the Town of Whitehall in order to reach her destination. On this date, the weather was good and the ground was dry.

There existed on the northwest corner of the sidewalk where Kaiser was traveling a crack or break in the concrete of the sidewalk. The record indicates a section of the sidewalk had been heaved up by the roots of a large tree that was cut down prior to May 25, 1983, and a rise in the concrete was created. This break or crack in the sidewalk had existed for a considerable length of time and was known to exist by Kaiser.

As Kaiser approached the raised portion of the sidewalk from about half a block away, she observed the defect in the sidewalk ahead. However, as she approached the rise in the sidewalk, she began looking to the street in front of her for possible auto traffic in preparation for crossing the street. Kaiser subsequently stumbled and fell on the raised portion of the sidewalk as she walked over it. She did not see the break in the sidewalk as she walked over it, since she was scanning the street ahead for traffic. As a result of her fall, Kaiser sustained injuries.

On March 16,1984, Kaiser filed suit against the Town of Whitehall seeking damages for its alleged negligence in failing to maintain the public sidewalk in a reasonably safe condition. The Town of Whitehall filed its answer denying all of the allegations contained in Kaiser’s complaint.

On September 5, 1985, the District Court granted the Town of Whitehall’s motion for summary judgment ruling that the Town of Whitehall was not liable for Kaiser’s injuries because “the [defective] condition of the sidewalk was known and obvious to the plaintiff” and “the defendant could not anticipate [the] harm resulting [to plaintiff] in the face of the knowledge and obviousness of the condition of the sidewalk.” It is from this judgment that Kaiser appeals.

Kaiser, appellant, presents the following relevant issues for review by this Court:

(1) Do material issues of fact exist in this case that preclude summary judgment as a matter of law pursuant to Rule 56, M.R.Civ.P.?

(2) Is this Court’s decision in Kronen v. Richter (Mont. 1984), [211 Mont. 208,] 683 P.2d 1315, 41 St.Rep. 1312, binding authority on the courts of this state although only three Justices signed the majority opinion, one concurred, and three dissented, where the Montana Constitution, Art. VII, Sec. 3(1), provides that “[a] majority shall join in and pronounce decisions, which must be in writing?”

With regard to issue No. 1, both parties recognize the appropriate standard for granting summary judgment. As this Court stated in Kronen v. Richter (Mont. 1984), 683 P.2d 1315, 1317, 41 St.Rep. 1312, 1314:

“Summary judgment is never to be used as a substitute for trial if a factual controversy exists. Reaves v. Reinbold (Mont. 1980), 615 P.2d 896, 37 St.Rep. 1500. Summary judgment is only proper if the pleadings, depositions, answers to interrogatories and admissions on file show there is no genuine issue of material fact. Anderson v. Applebury (1977), 173 Mont. 411, 567 P.2d 951. The standard that an appellate court applies in reviewing a grant or denial of a motion for summary judgment is the same as that utilized by the trial court initially under Rule 56, M.R.Civ.P. — a summary judgment is proper when it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 10 Wright, Miller and Kane, Federal Practice and Procedure, Section 2716 p. 643.”

Further, the defendant correctly recognizes the burden of proof which is required in a summary adjudication. Initially the burden of proof must be carried by the moving party seeking summary judgment (Town of Whitehall). However, where the record discloses no genuine issue of material fact, the burden of proof shifts to the party opposing the motion, who must come forward with substantial evidence raising an issue of fact. Once the burden has shifted in this fashion, the party opposing the motion (Kaiser) is held to a standard of proof about equal to that initially imposed upon the moving party under Rule 56(c), M.R.Civ.P. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Kronen, 683 P.2d at 1318.

In light of the above standard and burden of proof, we hold Kaiser raised several genuine issues of material fact in this case. Therefore, summary judgment is not appropriate.

In Montana, the sidewalk is owned by the city. Steen v. Grenz (1975), 167 Mont. 279, 538 P.2d 16. The general rule has been and still is that the duty to keep a public sidewalk in reasonable repair is on the city and when an accident occurs on a public sidewalk, liability, if any, attaches to the city. Steen, 538 P.2d at 18; State ex rel. J.C. Penney Co. v. District Court (1970), 154 Mont. 481, 465 P.2d 824. Further, the Town of Whitehall is a government entity in the State of Montana and is liable for its acts of omissions like an ordinary private party. Art. II, Sec. 18, Montana Constitution; Section 2-9-101, MCA; and Section 2-9-102, MCA.

Under Kronen, the duty owed by the Town of Whitehall to Kaiser and to the general public lawfully traveling on a public sidewalk is a duty to exercise ordinary care and to keep the premises (sidewalk) reasonably safe. Kronen, 683 P.2d at 1317; Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 637 P.2d 509. This duty owed by the Town of Whitehall to Kaiser is now governed by this Court’s recent decision in Limberhand v. Big Ditch Co. (Mont. 1985), [218 Mont. 132,] 706 P.2d 491, 42 St.Rep. 1460. Limberhand basically held that the duty owed by a landowner to an injured party is whether the landowner exercised ordinary care under circumstances, regardless of the status of the injured party.

As noted in a recent article in the Montana Law Review, this Court has had conflicting standards of reasonable care to be exercised by landowners to people who come upon their land and are injured. Comment, Landowner Liability in Montana, 47 Montana L. Rev. 109 (1986). Our previous decisions focused upon three entrant categories — invitee, licensee and trespasser.

Our opinion in Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545, abandoned the entrant categories and applied a single standard of reasonable care under the circumstances. A later opinion that year, Cereck, supra, appeared to be in conflict with our holding in Corrigan. Our recent opinion in Limberhand, supra, reaffirmed our holding in Corrigan, and commits us to a single standard of care. Mr. Justice Sheehy writing for the Court noted: “ . . . The test is always not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner.” Limberhand, 706 P.2d at 496. We note that the Limberhand case, like this case, came to the Court on summary judgment.

In relation to the legal duty owed by the Town of Whitehall to Kaiser described above, this Court also recently adopted Section 343 A (1) Restatement (Second) of Torts (1965) which provides:

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

We agree with the District Court that Section 343A(1) is applicable to facts of this case, but we find the lower court disregarded some critical language found in the provision. The last part of the provision states “. . . unless the possessor should anticipate the harm despite such knowledge or obviousness.” Justice Morrison in his specially concurring opinion in Kronen succinctly explained the effect of this last part of Section 343A(1):

“[A] duty may be owed though the condition is open and obvious if the landowner has reason to believe that despite the open and obvious nature of the condition, that injuries will nevertheless result.”

Kronen, 683 P.2d at 1318.

We find that although the condition of the sidewalk was known and obvious to Kaiser, a question of fact still remains as to whether or not the Town of Whitehall should have anticipated that someone (i.e. Kaiser) would be injured as a result of the defective condition of the sidewalk. The record shows the cracked and broken condition of the sidewalk had persisted for some time and that it was indeed a hazard to passing pedestrians. At the very least, a jury question is raised as to whether the Town of Whitehall should have anticipated the harm resulting from the sidewalk’s condition. Therefore, summary judgment is not appropriate.

It should be noted that although we hold the summary judgment of the District Court is reversed for the reasons explained above, a jury question is also present on the issue of whether the Town of Whitehall satisfied its legal duty owed to Kaiser. As discussed in the opinion above, the Town of Whitehall owed a legal duty to Kaiser to exercise ordinary care to keep its sidewalk reasonably safe. We note it is undisputed in the record that the sidewalk was in an extreme state of disrepair at the time of the accident. We hold this information concerning the condition of the sidewalk at the very least raises a material issue of fact as to whether or not the Town of Whitehall exercised ordinary care to keep the sidewalk “reasonably safe.” As this Court recently stated: “[w]hat constitutes reasonably safe premises is generally considered to be a question of fact.” Limberhand, 706 P.2d at 498.

In conclusion under this issue, we hold jury questions are present in this case on the issues of whether the Town of Whitehall should have anticipated that harm would be caused by the condition of the sidewalk despite the knowledge and obviousness of the condition, and whether the Town of Whitehall exercised ordinary care to keep the sidewalk “reasonably safe.” The probability that Kaiser will not prevail under these issues is no justification for granting summary judgment. It may appear that recovery is very remote, but that is not the standard. If there is a genuine issue of material fact, summary judgment is not appropriate. Rule 56(c), M.R.Civ.P. Here we have such a situation.

With regard to issue No. 2, we hold this Court’s decision in Kronen, supra, is binding authority under the Montana Constitution although the majority opinion was only signed by three Justices, with one Justice specially concurring, and three Justices dissenting. The Montana Constitution provides that “[a] majority [of the Supreme Court] shall join in and pronounce decisions, which must be in writing.” Montana Constitution Art. VII, Sec. 3(1). Kaiser contends that because a majority of the members of this Court did not subscribe to the majority opinion in Kronen, the decision lacks precedential force upon the courts of this state. Kaiser further argues that it was unconstitutional for the District Court to adhere to Kronen, since the split character of the decision robs it of constitutional validity.

Kaiser’s argument ignores a literal reading of the constitutional provision at issue and common sense. The Constitution does not say the majority of this Court must join in opinions; rather, it says the majority must join in and pronounce decisions. In reaching their decisión, the members of this Court are not constitutionally required to achieve unanimity in their reasoning. The majority is merely required to agree on the result, as was done in Kronen. The argument made by Kaiser ignores the text of the Constitution itself. Therefore, Kaiser’s argument under this issue must fail.

The summary judgment of the District Court is reversed and this case is remanded for trial on the merits.

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


author: MR. JUSTICE SHEEHY

text:
    FIRST SECURITY BANK OF GLENDIVE, a Montana Banking corp., Plaintiff and Respondent, v. LARRY J. GARY and Mary Gary, husband and wife; Defendants and Appellants, R.H. Schwartz Construction Specialties, Inc., a Montana corp. of Glendive, Montana; Defendant and Respondent. FIRST SECURITY BANK OF GLENDIVE, a Montana Banking corp. of Glendive, Montana, Plaintiff and Respondent, v. GARY DATSUN, INC., a Montana corp., of Glendive, Montana, Defendant and Appellant.
    No. 85-357.
    Submitted on Briefs March 6, 1986.
    Decided May 20, 1986.
    718 P.2d 1345.

      Huntley & Eakin, Gene Huntley, Baker, Charles W. Hingle, Nye & Meyer, Billings, for defendants and appellants.
    Lucas & Monaghan, Thomas Monaghan, Miles City, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellants, Larry J. Gary and Mary Gary, husband and wife, and Gary Datsun, Inc. a Montana corporation appeal from the judgment of the District Court, Seventh Judicial District, County of Dawson, denying the Garys’ motion to allow an amendment to their pleadings in Civil No. DV 79-174 to add Gary Datsun, Inc. as a party plaintiff and granting their motion to consolidate Civil No. DV 79-173 and DV 79-174 for purposes of trial.

On December 14, 1978 the First Security Bank of Glendive, Montana committed to loan the Garys $168,000 for the purpose of building an automobile sales facility in Glendive. The original promissory note signed by the Garys was due to be paid and converted to a long term note by June 14, 1979. The Bank recommended R.H. Schwartz Construction Specialities, Inc. to the Garys as a building contractor. On December 27, 1978, Larry Gary and Schwartz entered into a building contract. The Bank apparently did not tell the Garys that Schwartz was one of its customers. It was only during discovery that the Garys learned Schwartz was rather heavily indebted to the Bank. After receiving verification that a written construction contract had been entered with Schwartz the Bank deposited into a building fund account the proceeds of the note in the sum of $168,000.

During the course of construction, the Garys incorporated their business into Gary Datsun, Inc. It is sufficient for our purposes to state that construction of the building did not flow smoothly. By June 1979, the Garys and Schwartz had reached an impasse. The building had not been completed by the scheduled date, the interim mortgage was due, and the Garys and Schwartz were unable to resolve their differences regarding the construction of the building. As a result, on June 19, 1979, officers of First Security Bank of Glen-dive met with Larry Gary and advised him that the Bank would have to call his promissory note because of the numerous difficulties.

The Bank brought suit against the Garys, individually, to foreclose the interim mortgage on December 12,1979 in Dawson County Civil No. DV 79-174. The Bank also sued Gary Datsun, Inc. to recover for a separate loan which had been made to it for $7,000 in Dawson County Civil No. DV 79-173.

In the suit filed against the Garys individually, DV 79-174, the Garys filed a timely response and counterclaimed for damages to them as individuals arising from the Bank’s breach of the loan agreement and breach of its duty to act in good faith and in fair dealing. In the suit against Gary Datsun, Inc., DV 79-173, a timely answer was filed but no counterclaim was made against the Bank. Thereafter, a considerable amount of discovery was done and the case against the Garys for foreclosure and the counterclaim against the Bank was set for trial on April 29, 1985.

On January 31,1985, however, the Bank filed its pretrial memorandum in DV 79-174, wherein it contended that the bulk of the damages being claimed by the Garys on their counterclaim belong to Gary Datsun, Inc. because they occurred after the incorporation, that the corporation was not a party to the counterclaim, and that the statute of limitations had elapsed as to Gary Datsun, Inc. As a result, the District Court requested the parties to brief the above issues.

In the Garys’ memorandum, filed March 11, 1985, the Garys argued that the two cases, DV 79-173 and DV 79-174, should be consolidated for purposes of trial and that they should be allowed an amendment to DV 79-174 to add Gary Datsun, Inc. as a party plaintiff. In its order on March 24, 1985, the District Court consolidated the two actions for purposes of trial but refused to allow the addition of Gary Datsun, Inc. as a party plaintiff on the Garys’ counterclaim against the Bank. In its memorandum opinion the District Court stated its reasons as follows:

“With reference to the Court’s denial of the Motion to add a party plaintiff in the cause filed by Larry J. Gary and Mary Gary in Civil Number DV 79-174 that ruling on the part of the Court would give new life to an action that the Court believes is barred by the Statute of Limitations.
“It is the position of the Court that any counterclaim of Gary Datsun, Inc. against Plaintiff is barred by the statute of limitations and the motion is an effort to resurrect a counterclaim through procedural means and these procedural means are not permitted to resurrect a claim barred by the statute of limitations. A Montana case that seems to be directly in point is Engine Builders Inc. versus Seven Seas Import and Mercantile Inc. (Montana 1980), 615 P.2d 871. In that case the Court found that there are two periods of time that determine the period of limitation of actions and when that limitation has expired. One is when the cause of action which gave rise to the suit occurred. The second time is when the action commenced.
“The Court further analyzed that case by saying that under Rule 3, Montana Rules of Civil Procedure, ‘A civil action is commenced by filing a complaint with the Court.’ In the instant case by First Security Bank against Gary Datsun, Inc., all of the alleged wrongful acts of the Plaintiff took place on or before December 12, 1979. Therefore Gary Datsun, Inc. had time within the applicable statute of limitations from that date within which to file his counterclaim for damages. The effect now to amend the pleadings is an effort to extend the statute of limitation as prohibited by the Montana Supreme Court in Engine Builders.
“From December 12, 1979, for a period of at least three years thereafter, Plaintiff was seeking relief against Gary Datsun, Inc. in Dawson County Civil No. DV 79-173.
“Gary Datsun. Inc. had the right in that action to file an appropriate counter claim against Plaintiff but failed to do so within the time allowed by statute. It is the opinion of the Court that to authorize adding Gary Datsun, Inc. as a party in Dawson Civil DV 79-174 would be to allow indirectly what is specifically prohibited as a direct course of action and would in effect create a new cause of action in Gary Datsun, Inc.”

The Garys raise one issue for our review: Where it appears that a real party in interest has not been joined as a counterclaimant on a counterclaim, should the District Court, after the statute of limitations has run, allow the joinder of the omitted party or refuse to allow the counterclaim to be proved.

The Garys contend that Gary Datsun, Inc. should have been allowed to join their counterclaim against the Bank in DV 79-174 as the real party in interest pursuant to Rule 17(a), M.R.Civ.P., which provides in pertinent part:

“Every action shall be prosecuted in the name of the real party in interest.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

It is the Bank’s contention that the Garys are liable as individuals to the Bank on the $168,000 promissory note but are not entitled to a substantial portion of the relief requested in their counterclaim because the Bank’s refusal to extend further credit to the Garys occurred after the incorporation of Gary Datsun, Inc. wherein the Garys transferred most of their assets to the corporation.

The record of this case indicates that the Garys sought to join Gary Datsun, Inc. in the counterclaim they had timely filed against the Bank in DV 79-174. The first sentence of Rule 17(a), M.R.Civ.P. requires that an action be brought in the name of the party who possesses the substantive right being asserted under the applicable law. McNeil Construction Company v. Livingston State Bank (9th Cir. 1962), 300 F.2d 88, 90 n. 5. Furthermore, the requirement that an action must be prosecuted in the name of the real party in interest is not limited to original plaintiffs but must also be satisfied for purposes of asserting a counterclaim. Prudential Oil & Minerals Company v. Hamlin (10th Cir. 1960), 277 F.2d 384.

The District Court relied on our decision in Engine Rebuilders, Inc. v. Seven Seas Import-Export & Merc. Inc. (Mont. 1980), 615 P.2d 871, 37 St.Rep. 1406, for its conclusion that any counterclaim that Gary Datsun, Inc. had against the Bank was barred by the applicable statue of limitations. Our holding in Engine Rebuilders, however, is limited to the original filing of a counterclaim. Thus, as the District Court and the parties recognized, Gary Datsun, Inc. was barred by the statute of limitations from asserting its own separate counterclaim in DV 79-173 as well as being joined as a party in DV 79-174 and asserting an independent counterclaim against the Bank. The rule, however, is different when a real party in interest objection is made as to a claim timely filed.

In 6 Wright and Miller, Federal Practice and Procedure, Section 1555 (1971) this procedural dilemma is discussed in detail, as follows:

“Rule 17(a) was amended in 1966 to add the last sentence, which provides that an action shall not be dismissed on the ground ‘that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest * * The provision goes on to state that ratification, joinder, or substitution is to have the same effect as if the action had been commenced in the name of the real party in interest. This provision originally was developed by the Advisory Committee on Admiralty and, as initially drafted, was limited to certain maritime actions for which the statute of limitations is very short and the identity of the party entitled to sue often is difficult to determine. However, because the proposed amendment also restated the practice of many federal courts and was thought consistent with the better reasoned decisions in both civil actions and admiralty, it was made applicable to all cases.”
“The final sentence in Rule 17(a) is designed to avoid forfeiture and injustice when an understandable mistake has been made in selecting the party in whose name the action should be brought. Thus, a correction in parties is permitted even after the statute of limitations governing the action has run. This provision reflects the general policy of the draftsmen of the federal rules that the choice of a party at the pleading stage ought not have to be made at the risk of a final dismissal of the action should it later appear that there had been an error. In this respect the rule is consistent with the liberal relation back provision in Rule 15(c). Indeed, Rule 15(c) has been used in conjunction with Rule 17(a) to enable an amendment substituting the real party in interest to relate back to the time the original action was filed. The same result could have been reached solely on the basis of the last sentence in Rule 17(a).”

In their brief the Garys state that the District Court “ruled that Gary Datsun, Inc. is the real party in interest on the counterclaims originally pleaded by the Garys, but that the statute of limitations bars it from being substituted or joined in that action.” Nowhere in the record of this case can we find a ruling by the District Court that Gary Datsun, Inc. is a real party in interest on the counterclaim originally filed by the Garys. It is also difficult, based on the record before us, to determine whether Gary Datsun, Inc. is in fact a real party in interest on the counterclaim filed by the Garys. We therefore find it necessary to remand this case to the District Court to determine whether Gary Datsun, Inc. is a real party in interest on the counterclaim. We also note that the District Court did not dismiss the Garys’ counterclaim, but if Gary Datsun, Inc. is in fact a real party in interest, on the Garys’ counterclaim, the District Court’s decision denying joinder of Gary Datsun, Inc. to the Garys’ counterclaim substantively served as a dismissal all or part of the counterclaim. In the event that the District Court finds Gary Datsun, Inc. to be a real party in interest, then ratification, joinder or substitution of the counterclaim should be allowed by Gary Datsun, Inc. If, however, Gary Datsun, Inc. is not a real party in interest on the counterclaim filed in DV 79-174, the corporation is barred by the statute of limitations based on our decision in Engine Rebuilders from asserting an independent counterclaim against the Bank.

We, therefore, remand to the District Court for further proceedings consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON and HUNT concur.


author: MR. JUSTICE WEBER

text:
    In the Matter of the ESTATE OF CLAYTON FOGERTY, Deceased.
    No. 85-506.
    Submitted on Briefs Feb. 26, 1986.
    Decided May 27, 1986.
    719 P.2d 425.
    Morrow, Sedivy & Bennett, Lyman H. Bennett, III, Bozeman, for appellant.
    Richard Kalar, Emigrant, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Following the death of Clayton Fogerty (decedent), Anna Pratt filed a petition requesting adjudication of intestacy and appointment as personal representative. After bench trial, the Gallatin County District Court denied the petition. Anna Pratt appeals. We affirm.

The issues on appeal are:

1. Did the District Court err in holding the decedent’s will had not been revoked?

2. Did the District Court err in naming Richard Kalar personal representative of decedent’s estate?

Decedent died in January 1985. His will, which was dated June 14, 1984, was admitted to informal probate and Richard Kalar was appointed as personal representative, according to the terms of the will. The will contained a specific devise to Anna Pratt (petitioner) and named Church Universal and Triumphant residuary legatee:

“SECOND: I give, devise and bequeath unto Anna Pratt ... [a] 1981 Fleetwood Mobile Home size 28x66 . . . [and] [a]ll the furniture, appliances and household goods . . .in the mobile [home] . . .
“THIRD: I give, devise and bequeath unto Church Universal and Triumphant. . . whatever cash on hand or money in the bank ... I also give, devise and bequeath my present car or whatever car I might have to Church Universal and Triumphant, and all assets other than the Mobile and furnishings ...”

On the belief that this will had been revoked, Anna Pratt petitioned the court to declare decedent intestate and to appoint her as personal representative.

I

Did the District Court err in holding the decedent’s will had not been revoked?

In the early part of January 1985, decedent had a heart attack in Bozeman. Initially, he was lucid and coherent. On January 14, 1985, after respiratory arrest, decedent was placed on a respirator and tubes were run down his throat. This limited his communication. He was not able to speak.

After being notified that decedent was in the hospital, Anna Pratt flew to Bozeman from Sacramento, California. Her testimony was essentially as follows: On January 15, 1985, during a period when Anna Pratt thought the decedent was awake and lucid, she asked decedent if he wanted to revoke his will. Anna Pratt testified that decedent moved his head in such a matter as to indicate “yes.” She further testified that she called decedent’s attending nurse, asked the same question and again received an affirmative nod of the head; and then tore up the will in front of the nurse and the decedent. Anna Pratt contends this was an adequate revocation of the will.

The testimony of the attending doctor and nurse directly contradicted the testimony of Anna Pratt. The District Court concluded that the decedent did not have the capacity to make or direct voluntary destruction of his will, stating in part:

“4. Mr. Fogerty was confined to the hospital having suffered multiple heart attacks and complications which eventually led to his death on January 25, 1985.
“5. That nurse Kathleen Wilson was attending Clayton O. Fogerty as his personal nurse on January 15, 1985, continuously from 3:00 p.m. until after the petitioner left Mr. Fogerty’s bedside.
“8. At approximately 7:30 p.m. Mr. Fogerty momentarily opened his eyes whereupon Anna Pratt produced a duplicate copy of the will and held it before him. She attempted to ask Mr. Fogerty if he consented to the destruction of the will whereupn Mr. Fogerty’s head moved in a slight manner. There is insufficient evidence to show that he in any way intended that Anna Pratt destroy the will or that he was responding to any verbal statement by Anna Pratt.
“9. Due to Mr. Fogerty’s seriously ill condition he did not have the cognitive capacity to make a knowing and voluntary destruction of his will nor did he possess the capacity to direct the actions of Anna Pratt.”

Nurse Kathleen Wilson, who cared for decedent while he was in the intensive care unit, testified with regard to the tearing up of the will as follows:

“I was on the left side of his bed and I was occupied with handling medications or something ... at his bedside. She told me that she was getting ready to leave; that she had to go ahead and go home for the evening. She bent over and like had Clayton’s hand and she evidently had her purse with the folded copy of the will in the other hand. I could not see it at that time. She said, ‘Clayton, Clayton’ and he opened his eyes for just very briefly and she said, ‘Is it all right with you if I tear up this will?’ And she held up the little piece of paper, the folded paper, which I don’t know if he saw or not. He kind of closed his eyes and nodded his head down at which point she tore up the paper. I was totally amazed.”

Dr. Richard Tenney, decedent’s attending physician, did not testify as to the actual tearing up of the will, as he was not personally present. However, he did testify with regard to the capacity of the decedent, as follows:

“Again, I go back to what I said, that even though they have a lucent (sic) point during which, say, I examine them in the morning and I say, ‘How are you?’ And he shakes his head . . . they’re so critically ill that I’m not totally sure when you ask them for a yes or no answer, whether you ask them to shake yes or no, up and down or whatever, that they’re actually aware of what they’re saying. They may be giving you an answer just to get you off their back because they’re so weak. If I have to say yes or no, are you going to ask me: Can they make good decisions while they’re patients like this, I say no, but there may be a point where they’re asked a specific question where they may be lucid at that time, but categorically speaking, these people are not capable of making good decisions.”

After a careful examination of the transcript, we conclude there is both substantial and compelling evidence that decedent did not have the capacity to revoke his will. We affirm the holding of the District Court that the decedent’s will had not been revoked, and the will was properly admitted to probate.

II

Did the District Court err in naming Richard Kalar personal representative of the decedent’s estate?

Petitioner contends Mr. Kalar should be removed as personal representative because he failed to post a bond, violating Section 72-3-514, MCA.

On May 20, 1985, the day of trial, on the basis that Mr. Kalar had not received notice of the demand to post bond, the motion to remove Mr. Kalar was denied. The transcript discloses the following conversation:

“THE COURT: [D]id you serve any of these papers on Mr. Kalar?
“MR. BENNETT: I requested the Clerk to do so, your Honor. I did not do it personally.
“THE COURT: Have you reviewed the file to see if the Clerk did that?
“MR. BENNETT: No. I haven’t your Honor.
“MR. KALAR: I see the demand in the file, sir, but I never received a copy of this.
“THE COURT: The motion will be denied at this time on the basis that there’s no showing that service has been made upon the personal representative.”

We find no abuse of discretion.

Petitioner now asks the Court to remove Mr. Kalar because he still has not posted a bond, even after receiving actual notice on the day of trial. The District Court is the proper forum for this issue that arises out of subsequent facts and circumstances not presently before this Court on appeal.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON and HUNT concur.


text:
    The BOARD OF TRUSTEES, CLINTON ELEMENTARY SCHOOL DISTRICT #32, MISSOULA COUNTY, Plaintiffs and Appellants, v. The BOARD OF TRUSTEES, BONNER ELEMENTARY SCHOOL DISTRICT #14, et al., Defendants and Respondents.
    No. 85-635.
    Submitted on Briefs April 10, 1986.
    Decided May 29, 1986.
    Rehearing Denied June 19, 1986.
    719 P.2d 1240.
    Garnaas, Hall & Pinsoneault, H.J. Pinsoneault, Missoula, for plaintiffs and appellants.
    Robert L. Deschamps, III, Co. Atty., Michael W. Sehestedt, Deputy Co. Atty., Missoula, for defendants and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiffs appeal the October 21, 1985, order of the Fourth Judicial District Court affirming the decision of defendants to transfer territory from Clinton Elementary School District No. 32 to Bonner Elementary School District No. 14. We affirm.

In May 1984, residents of the Sunwood Acres Subdivision petitioned the Missoula County Superintendent of Schools to transfer their part of the subdivision from Clinton School District #32 to Bonner School District #14. The petition stated that the territory to be transferred was contiguous to the Bonner School District and not within 3 miles of the Clinton School, and that such transfer would not reduce the taxable value of the Clinton School District to less than $100,000. The petition gave the following reasons for the transfer request: 1) The distance to the Clinton School is 8 miles, while it is only 3 miles to the Bonner School; 2) A phone call from Sunwood Acres to the Clinton School is a long distance call; 3) Inclusion of the entire subdivision within the same school district would lessen the bus traffic through the area; 4) Neighbors within the subdivision would be permitted to attend the same school; 5) Such a transfer would conserve time, cost, mileage, and inconvenience for the residents as well as the two school districts.

Following proper notice, a public hearing was held on the proposal on June 27, 1984, conducted by the County Superintendent. An official transcript of the hearing was not taken, however a list of those testifying was prepared reflecting the number in favor of the proposal and the number in opposition. The County Superintendent granted the request by order dated July 5, 1984, which included the following:

“Having heard all testimony and received all the information pertinent to this matter, the Missoula County Superintendent considers it advisable and in the best interests of the residents of the territory in question to grant the petitioned request.

“None of the residents in the area to be transferred testified in opposition to the proposed transfer, and many showed support of the transfer. Since the residents of any territory are better able to determine what is in their own best interests, the County Superintendent hereby orders the change in the Bonner School District No. 14 and Clinton School District No. 32 boundaries to coincide with petitioned request.”

Pursuant to Section 20-6-213(4), residents of Clinton School District #32 opposing the transfer appealed the decision to the Board of County Commissioners. Following proper notice, a public hearing was held before the Board on August 22, 1984. The minutes of the public hearing reflect that five residents of Sunwood Acres testified in favor of the transfer, one Sunwood Acres resident suggested a joint school district, and the Clinton Superintendent of Schools strongly opposed the transfer. No further evidence was presented. Following testimony, The Board voted to uphold the order of the County Superintendent granting the transfer request. The Board did not issue an order concerning its decision nor make findings of fact supporting the decision.

Thereafter, residents of Clinton School District #32, presented a petition to the Board requesting the question of transfer be submitted to a vote of the people in Clinton School District #32, as authorized by Section 20-6-213(4), MCA. The Board rejected the petition determining that Section 20-6-213(4), MCA, requires a petition signed by the majority of electors who reside in the territory to be transferred, and that the petition was not signed by a majority of the electors residing in the part of Sunwood Acres to be transferred.

The Clinton Board of Trustees subsequently filed a Complaint for Declaratory Relief in District Court requesting (1) the order of the County Superintendent be declared invalid for failure to include findings of fact and (2) a petition filed under Section 20-6-213, MCA, must be signed by a majority of the electors of the whole district from which the territory is to be transferred. The case was submitted to the court for decision based upon the record, including an Agreed Statement of Facts. The District Court entered judgment in favor of defendants, finding that their actions regarding the transfer were in compliance with Section 20-6-213, MCA, and that a petition seeking transfer of territory from one elementary district to another must be signed only by a majority of the electors residing in the territory to be transferred. Plaintiffs appeal the District Court judgment and raise the following issues:

1. Are the actions of the defendants regarding the subject matter of this action regular, valid, and in compliance with Section 20-6-213, MCA?

2. Under Section 20-6-213, MCA, must a petition seeking transfer of territory from one elementary school district to another be signed by a majority of the electors of the district from which the territory is to be transferred?

At the outset, we note that the 1985 legislature exempted school districts from the provisions of the Montana Administrative Procedure Act (MAPA) pursuant to Section 2-4-102(2)(b), MCA. However, this case arose during 1984, and the actions of the County Superintendent were subject to MAPA provisions. Yanzick v. School District #23 (1982), 196 Mont. 375, 639 P.2d 498.

Plaintiffs contend that defendants’ actions were not in compliance with Section 20-6-213, which provides in pertinent part as follows:

“20-6-213. Transfer of territory from one elementary district to another. (1) A majority of the electors of any elementary district who are qualified to vote under the provisions of 20-20-301 and who reside in territory which is a part of an elementary district may petition the county superintendent to transfer such territory to another elementary district when:
“(a) such territory is contiguous to the district to which it is to be attached;
“(b) such territory is not located within 3 miles, over the shortest practical route, of an operating school of the district from which it is to be detached;
“(c) the transfer of such territory will not reduce the taxable value of the district to less than $100,000 unless the remaining territory of the district will contain not less than 50,000 acres of nontaxable Indian land; and
“(d) the board of trustees of the school district that would receive the territory has approved the transfer.
“(2) The petition shall be addressed to the county superintendent and shall:
“(a) describe the territory that is requested to be transferred and to what district it is to be transferred;
“(b) state the reasons why such transfer is requested; and
“(c) state the number of elementary school-age children residing in such territory.
“(4) The county superintendent shall conduct the hearing as scheduled, and any resident or taxpayer of the affected districts shall be heard. If the county superintendent considers it advisable and in the best interests of the residents of such territory, he shall grant the petitioned request and order the change of district boundaries to coincide with the boundary description in the petition. Otherwise, he shall, by order, deny the request. Either of the orders shall be final 30 days after its date unless it is appealed to the Board of County Commissioners by a resident or taxpayer of either district affected by the territory transfer. The decision of the Board of County Commissioners, after a hearing on such matter and consideration of the material presented at the county superintendent’s hearing, shall be final 30 days after its date unless a petition to submit the question to a vote of the people in the district from which the land is to be transferred, which has been signed by a majority of the electors of the district who reside in the territory to be transferred and who'are qualified to vote in elections for that district under 20-20-301, is presented prior to that time . . .”

The order issued by the County Superintendent did not contain a finding that the four elements of a valid petition listed under Section 20-6-213 (1), MCA, were met, nor did the order contain findings supporting the conclusion that a transfer was in the best interests of the residents of the affected territory. The Board of County Commissioners affirmed the order without making any findings. Plaintiffs assert the lack of findings in the record was error and makes court review of the transfer decision impossible. The District Court ruled against plaintiffs on this matter, holding that plaintiffs had waived the issue of findings by submitting to it an agreed statement of facts, and that plaintiffs’ failure to request findings at an earlier stage in the proceedings barred reversal for lack of findings under Section 2-4-704(2)(g), MCA.

Section 2-4-623(1), MCA, requires that a final decision in a contested case shall include findings of facts. Although the County Superintendent did not comply with this provision, there is substantial evidence in the record supporting his decision to grant the transfer. Testimony given at each hearing reflects that Sunwood Acres residents were unanimous in their support of the transfer proposal, while opposition testimony was minimal. Plaintiffs do not contend that any of requisite facts for transfer under Section 20-6-213, MCA, have not been met, nor do they contend the transfer was not in the best interests of the residents of such territory.

Our standard of review under Section 2-4-704, MCA, is limited. Section 2-4-704(2) (g), MCA provides: “The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because findings of fact, upon issues essential to the decision, were not made although requested.” Plaintiff did not request findings of fact from either the County Superintendent or the Board of County Commissioners. Pursuant to Section 2-4-704(2)(g), MCA, such failure bars court reversal for lack of fact findings. We find substantial credible evidence in the record supporting the order of the County Superintendent granting the transfer. Plaintiffs have failed to make any showing that such order was an abuse of discretion; therefore we affirm the decision of the County Superintendent.

The second issue raised by plaintiffs involves interpretation of Section 20-6-213(1), MCA. The disputed provision reads: “A majority of the electors of any elementary district who are qualified under the provisions of 20-20-301 and who reside in territory which is part of an elementary district may petition the county superintendent to transfer such territory . . .” Plaintiffs contend the petition must be signed only by a majority of the electors of the district who live in the area to be transferred. The District Court held that the provision requires the petition to be signed only by a majority of the electors residing in the territory to be transferred and need not be signed by a majority of the electors in the district from which the territory is to be transferred.

We agree with the interpretation of the District Court. Under plaintiffs’ interpretation, residents of a small territory within a district, such as in the present case, could never file a valid petition because a majority of the electors do not reside within such territory. Our statutorily mandated duty under Sections 1-3-232, and 1-3-233, MCA, is to favor the interpretation which is reasonable and gives effect to the statute in question. We reject plaintiffs’ interpretation as it would render the statute useless.

The District Court is affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    In re the Marriage of JEANNE M. UPHUS, Petitioner and Appellant, v. MICHAEL J. UPHUS, Respondent and Respondent.
    No. 85-411.
    Submitted on Briefs Jan. 9, 1986.
    Decided June 3, 1986.
    720 P.2d 231.

      Richter & Associates, Jack E. Sands, Billings, for petitioner and appellant.
    J. Brian Tierney, Butte, for respondent and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Jeanne Uphus (Sands), appeals a Silver Bow County District Court order which reduced the amount of child support that she receives each month from respondent, Michael Uphus. The issues on appeal are whether there are changed circumstances so substantial and continuing as to render the original decree of dissolution unconscionable and to support a modification of that decree; whether the District Court’s findings of fact and conclusions of law are sufficient; and whether the District Court impermissibly, retroactively modified the child support provisions of the original decree. We affirm the District Court.

Appellant and respondent were joined in marriage in February, 1971. They are the parents of two children. In January 1981 appellant filed a petition for dissolution of marriage. In April 1981 the Silver Bow County District Court issued a decree of dissolution dissolving the marriage. The decree granted custody of the children to appellant during the children’s school months and to respondent during the summer months. The decree ordered that respondent initially pay appellant $100 per month per child during the months appellant had custody. The decree increased the obligation to $152 per month per child after the respondent payed off a loan.

In December 1983 appellant filed a petition alleging that respondent was three months behind in his child support payments, and as a result, the District Court found respondent to be in contempt of court. In May 1984 respondent, alleging that he was unemployed, petitioned the District Court for a modification of his child support obligation. In May 1984 the District Court found that respondent was unemployed and it modified the original decree of dissolution by ordering respondent to pay $50 per month per child for child support. The court provided that it would reexamine respondent’s ability to pay child support following the May 1985 payment. The court further ordered respondent to pay $25 per month, and $250 from his income tax return, to reduce his accumulated arrearage in support payments. Appellant did not appeal the May 1984 order.

In May 1985, the District Court held a hearing to reexamine respondent’s ability to pay child support. In June 1985, the court issued its findings of fact and conclusions of law. The court found that both parties had remarried and that both parties, and their spouses, are employed. The court also considered the changed circumstances since entry of the original decree of dissolution and ordered respondent to pay $100 per month per child for child support and $25 per month toward the support arrearages. The court further ordered that when the arrearage was paid off, respondent would pay child support of $112.50 per month per child. The order modifies the original decree by reducing the child support payments by about $40 per month per child. This appeal followed.

The first issue is whether the original decree of dissolution is unconscionable because of changed circumstances so substantial and continuing as to warrant a modification of that decree. Section 40-4-208, MCA, provides in pertinent part:

“(2)(b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
“(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; . . .”

The District Court modified the decree under this subsection of the statute. This Court has stated the standard of review many times. To gain reversal of the District Court, appellant must show that in light of the evidence in the record the findings of the District Court are clearly erroneous. Rule 52(a), M.R.Civ.P.; Reynolds v. Reynolds (Mont. 1983), [203 Mont. 97,] 660 P.2d 90, 93, 40 St.Rep. 321, 324. Appellant must demonstrate a clear abuse of discretion by the District Court and she must overcome the presumption that the District Court’s judgment is correct. Reynolds, 660 P.2d at 93; citing Grenfell v. Grenfell (1982), 200 Mont. 490, 491, 652 P.2d 1170, 1171.

Here, there are changed circumstances since the entry of the original decree. Both parties have remarried and the wife has moved with her children to a permanent residence in northern Idaho, close to the Canadian border. The evidence shows this move had substantial consequences. Respondent testified that, “. . .1 can’t afford to see [the children] because they are too far away.” Furthermore, respondent apparently earns approximately $150 less per month than at the time of the decree. Although the record is unclear on this point, it does show that respondent earns only $950 a month in take-home pay. We hold that there is substantial credible evidence to support the District Court’s finding of changed circumstances so substantial and continuing as to make the terms of the original decree unconscionable. Appellant has not shown that the District Court clearly abused its discretion nor has she overcome the presumption that the District Court’s judgment is correct. We affirm the District Court’s modification of the child support obligation.

The second issue is whether the District Court’s findings of fact and conclusions of law are sufficient to support the modification of the decree. Appellant asserts that the District Court adopted respondent’s proposed findings of fact and conclusions of law verbatim. Appellant contends the findings and conclusions are not supported by the evidence, not comprehensive, and not pertinent to the issues. This requires reversal, according to appellant, under Parenteau v. Parenteau (Mont. 1983), [204 Mont. 239,] 664 P.2d 900, 903, 40 St.Rep. 815, 819, where this Court stated:

“. . . findings and conclusions which are sufficiently comprehensive and pertinent to the issues to provide a basis for decision . . . will not be overturned simply because the trial court relied upon proposed findings and conclusions submitted by counsel.”

Initially, we note that nothing in the record reflects that the District Court adopted respondent’s proposed findings and conclusions. Even if this were true, we find the findings and conclusions to be sufficiently comprehensive, pertinent and accurate to support the District Court’s decision. The court found that both parties had remarried and noted the respective employment capabilities of each party and their respective spouses. The court also cited each party’s present monthly income and concluded that, given the change of circumstances, a modification of the child support obligation was called for. We find no error in the sufficiency of the court’s findings and conclusions.

The last issue is whether the District Court impermissibly, retroactively modified the child support provisions of the original decree. Section 40-4-208(1), MCA, states that, except as otherwise provided, “. . . a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to the motion for modification.” Appellant argues that the District Court violated this statute by specifying how accrued payments (the arrearage) should be paid off. The District Court did provide that respondent would pay $25 per month towards his support arrearage. Appellant claims this is a retroactive modification of accrued support under Williams v. Budke (1980), 186 Mont. 71, 76-77, 606 P.2d 515, 518; quoting Wade v. Wade (Okla. 1977), 570 P.2d 337, 339:

“Providing the manner in which the judgment is to be collected amounts to an impermissible retroactive modification of the decree (citing cases). In addition such an order limits Carolyn’s right to pursue statutory provisional remedies to collect [a] judgment.” Appellant does not, however, cite the controlling statement from the Williams case. This Court went on to say in Williams, 186 Mont. at 78, 606 P.2d at 519, that:
“The District Court always has jurisdiction in contempt proceedings for the purpose of enforcing a support money decree, to find the defaulting party in contempt, and to stay the execution of punishment for the contempt upon the provision so that the defaulting party purge himself by making payments in accordance with a schedule established by the District Court.”

This is exactly what the District Court did in the instant case. The court had previously found respondent in contempt of court for being in arrears on his child support payments. The provision that he pay $25 per month towards the arrearage was a mechanism by which respondent could purge himself. We reject appellant’s contentions under the third issue.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON and HUNT concur.


text:
    ALLEN KELLER, Plaintiff and Appellant, v. STEMBRIDGE GUN RENTALS, and A.B.C. Manufacturing, Defendant and Respondent.
    No. 85-474.
    Submitted April 1, 1986.
    Decided June 3, 1986.
    719 P.2d 764.
    Anderson, Edwards & Molloy; Donald W. Molloy argued, Billings, for plaintiff-appellant.

      Murphy, Robinson, Heckathorn & Phillips; Debra D. Parker argued, Kalispell, Beaudry & Brown; Don F. Beaudry, Los Angeles, Cal., for defendant-respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Eleventh Judicial District in and for Flathead County, Montana, granting defendant summary judgment. The court held plaintiff’s claim was barred because the relation back rule did not apply and the statute of limitations is not tolled. We affirm.

The question on appeal is whether the statute of limitations is tolled on the date the original complaint was filed when the complaint incorrectly names the defendant and his true name is discovered later and submitted by amendment. We hold it is not.

The plaintiff, Keller, sustained personal injuries during the filming of the movie Heaven’s Gate in August, 1979. He was issued a Sharps Buffalo Rifle which exploded while he was using it in the performance of his role. The gun was in one piece and ostensibly safe when it was issued to him, but was blown apart and in many pieces after he fired blanks from it.

Section 27-2-204, MCA, the three year statute of limitations for tort actions, had nearly run when Keller filed his original complaint in August, 1982, naming Ellis Rental a/k/a Ellis Mercantile. Keller believed Ellis had supplied the gun which exploded. ABC Manufacturing, a fictitious party defendant, also was named.

Interrogatories served on Ellis with the complaint revealed Ellis did not supply the weapon. The affidavit of one Robert Visciglia, the film crew’s property manager, whose duties included accounting for and distributing weapons, supported this fact, and Ellis’ motion for summary judgment was granted October 11, 1983.

An amended complaint, filed June 25, 1983, naming Stembridge Gun Rentals as defendant, was served March 29, 1984. Stembridge appeared and moved for summary judgment, arguing the statute had run. The District Court, relying on LaForest v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318, granted the motion, reasoning the relation back rule did not apply. Keller appeals.

The issue can be resolved by analyzing Rule 15(c), M.R.Civ.P.:

Rule 15(c) provides in pertinent part:

“Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

The critical language in this instance is in the second sentence of the rule. There is no evidence Stembridge received notice of the institution of the action or that it knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against it. It is agreed the party against whom the claim is made is changed. When Keller discovered Ellis had not supplied the gun which exploded, he amended the complaint, naming Stembridge. The crux of the problem is whether Stembridge is a new party to the action.

This is not a case that falls under the “misnomer” rule where a plaintiff sues and serves the correct party but merely mistakenly uses the wrong name of the defendant. LaForest, supra. 179 Mont. at 47, 585 P.2d at 1320. Rather, this situation is governed by Section 25-5-103, MCA:

“When a plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleadings or proceedings may be amended accordingly.”

These circumstances present more than mere ignorance of the names of the proper defendant. Keller originally sued the wrong entity. The caption on the complaint indicates the designation of a fictitious party relates only to the unknown manufacturer:

“ALLEN KELLER, Plaintiff, v. ELLIS RENTAL, a/k/a ELLIS MERCANTILE, and ABC MANUFACTURING,
“Defendant No. 1 is the correct designation of the entity that provided the ‘Sharps Buffalo Gun’ herein, on the occasion of its explosion; Defendant No. 2 represents an entity that manufactured or sold the gun to Ellis Rental. Plaintiff affirms that the actual name of the fictitious party designated herein is unknown to him at this time but will be added by amendment when ascertained.
Defendants.”

Keller is attempting to bring a completely new party before the Court after the statute of limitations has run. The caption makes it clear he was satisfied Ellis Rental had supplied the Buffalo gun. The use of a fictitious name in the caption was specifically intended for the unknown manufacturer of the gun.

Both LaForest, supra, and Section 25-5-103, MCA, allow the statute of limitations to be tolled as to a fictitious party on the date of the original complaint. A fictitiously named defendant is notice that plaintiff is ignorant of the true name and is attempting to discover the true name. Neither Section 25-5-103 nor LaForest allows substitution of the proper defendant after discovering the wrong defendant was sued.

“The addition or substitution of parties who had no notice of the original act is allowed. Substitution of a completely new defendant creates a new cause of action. Permitting such a procedure would undermine the policy upon which the statute of limitations is based. (Citations omitted.)”

LaForest, supra, 585 P.2d at 1320, 179 Mont. at 46. Citing Munez v. Eaton and Towne, Inc. (E.D. Pa. 1973), 57 F.R.D. 476, 480-481.

Keller cannot meet the standard for the relation back of the amended complaint, pursuant to Rule 15(c), M.R.Civ.P. nor is he in compliance with Section 25-5-103. He cannot sue Stembridge by naming Ellis as a defendant. Ellis is an entity in its own right and not a fictitious name for Stembridge. Stembridge is a new party to the action. Consequently the action is barred because Stembridge was not named until July 25,1983 — after the statute of limitations had run. The District Court properly granted summary judgment and we affirm.

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