author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF JEAN McINNES KINK, Petitioner and Respondent, and PAUL MARTIN KINK, Respondent and Appellant.
    No. 86-228.
    Submitted on Briefs Feb. 5, 1987.
    Decided April 7, 1987.
    735 P.2d 311.

      Joseph W. Sabol, Bozeman, for respondent and appellant.
    Edmund P. Sedivy, Bozeman, for petitioner and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Respondent husband appeals the order of the District Court of the Eighteenth Judicial District in and for Gallatin County, Montana. He challenges the court’s jurisdiction to amend its original findings of fact and conclusions of law. We affirm the District Court.

Paul and Jean Kink’s seven year marriage was dissolved May 21, 1984. Each party had been married previously. Jean had three children from her previous marriage for whom she received $200 per month per child support. At the dissolution of that marriage she received a home in Bridger Canyon, Montana, furnishings, a car, interests in some contracts, and $300,000 cash. She invested these assets and at the time of the marriage to Paul she had considerable net worth.

Paul had been married three times prior to his marriage to Jean. He had few assets and substantial debt when he married. A few days before their marriage he borrowed $6,000 from her to pay off a debt, and several months later he borrowed $29,400 to pay other debts.

Paul worked as a stock broker. During the early years of the marriage his income was used to pay off his debts of $78,000, and the family basically was supported by Jean’s earnings from pre-marriage investments. After his debts were paid, Paul spent considerable money purchasing and raising Clydesdale and Belgian draft horses, and related tack, tools, and wagons.

In September 1980, the parties bid to purchase some property known as the Bohart Ranch, consisting of nearly 300 acres near the Bridger Bowl ski area. At the time they made their bid, they wrote a letter to the heirs of the late owner advising them of their (Kink’s) intent to preserve the property for cross country skiing and to keep the property from falling into the hands of developers. The Kink’s bid was accepted. Jean made a downpayment of over $18,000 and mortgaged her home, enabling them to borrow $225,000 from the Federal Land Bank.

The marriage was dissolved in May 1984. The District Court retained jurisdiction to determine the division of the marital property. Following a four day trial, the court awarded Jean the original assets she had brought into the marriage and certain assets which had been purchased during the marriage from the proceeds of sale of pre-marriage assets and earnings. Paul was awarded the Bohart property, the proceeds of a personal injury claim, and his rights to an unliquidated slander and wrongful termination claim. To equalize the property division, he was ordered to pay to Jean $82,541, in ten equal installments, and to remove the mortgage from Jean’s home within three years. In awarding the Bohart property the court fashioned a joint venture between the parties for seven years.

Both parties filed motions to amend these findings and a hearing was held. Subsequently the court ordered the parties to appear for the limited purpose of testifying to the respective proposals for handling the Bohart property. The court then issued amended findings of fact and conclusions of law. Respondent’s motion to set aside the amended findings was denied and he appeals.

Appellant contends the District Court lacked jurisdiction to issue the amended findings because it failed to rule on the motions to amend within 45 days, pursuant to Rules 52(b) and 59(d), M.R.Civ.P. Rule 52(b) says:

“Upon motion of a party made not later than 10 days after notice of entry of judgment the court many amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.”

Rule 59(d) provides in pertinent part that “[i]f the court shall fail to rule on a motion for new trial within 45 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.”

Jean argues the District Court’s order of November 8, 1985, is in effect a ruling on the motions to amend the findings and conclusions. The order was issued 44 days after Jean filed her motion to amend, and 39 days after Paul’s was filed. We do not conclude the order to be such a ruling, however. It is not styled as such, nor do its contents so indicate. Thes parties are ordered to appear for the purpose “of testimony limited to the respective proposals of handling the Bohart property and the retention of the cross country ski courses upon the same.” This appears to be an order for a new trial and was so considered by the District Court. Rule 59(e), M.R.Civ.P.:

“Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not indicated in the motion.”

Rule 59(f), M.R.Civ.P. says:

“[A]ny order of the court granting a new trial, shall specify the grounds therefor with sufficient particularity as to apprise the parties and the appellate court of the rationale underlying the ruling, and this may be done in the body of the order, or in an attached opinion.”

Grounds for a new trial are set forth in Section 25-11-102, MCA. The section provides no time constraints. The only time constraint on the District Court to order a new trial on its own initiative is that it be done within ten days of entry of judgment. No judgment had been entered on November 8. The order expressed the court’s concern “about the Cross Country course laid out on the Bohart property,” and ordered a hearing on that issue only. Both parties presented testimony without objecting to the court’s jurisdiction.

Not only does a district court have jurisdiction to order a new trial on its own initiative pursuant to Rule 59(e) M.R.Civ.P., it has broad discretion to reopen a case. Rule 59(a) M.R.Civ.P. applies when a party desires a new trial, not when a case is reopened to receive further testimony.

“It is well settled that the ruling on a motion to reopen a case for taking further testimony is within the sound discretion of the district court, which will only be reversed on appeal for manifest abuse of that discretion. [Citations omitted.]”

Compton v. Alcorn (1976), 171 Mont. 230, 236, 557 P.2d 292, 296. Jean’s motion was a motion to amend and to reopen. We find the court had jurisdiction to order a new trial on its own initiative, or to reopen the case. Thus it had jurisdiction to amend the findings of fact and conclusions of law.

Paul also argues the court abused its discretion when dividing the marital assets. We will not disturb a lower court’s ruling unless there is clear error amounting to abuse of discretion. Rule 52(a), M.R.Civ.P. The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Goodman (Mont. 1986), [222 Mont. 446,] 723 P.2d 219, 220, 43 St.Rep. 1410, 1412.

A careful examination of the revised findings does not reveal abuse. Paul contends the District Court erred in adopting the trial date as the date of distribution, with a resulting change in valuation figures. Paul’s trial counsel argued for use of that date, however. Appellant counsel cannot now put the court in error. Further, it must be noted the amended order did not change the value of the items complained of. The marital estate was valued at slightly over one million dollars. Jean brought well over $400,000 worth of assets to the marriage, while Paul was over $70,000 in debt at the time of the marriage. He acquired, and was allowed to keep, considerable personal property. The amended order awarded him assets valued at $182,500 and ordered Jean to pay to Paul a cash settlement of $100,561, plus interest, for real property which Jean retained. He has no debts.

There is sufficient evidence the court employed conscientious judgment in dividing the marital estate. A hearing was held on the motions to amend the first findings and conclusions. It then ordered a new trial on the issue of disposition of the Bohart property. It considered the earning capacity and contributions to the family of both Paul and Jean, the assets Jean brought to the marriage and Paul’s financial liabilities.

“The property and assets of the parties are extensive and complex. We will not attempt to review every element of a complex property distribution . . . Our function is to examine whether there is substantial evidence to support the property distribution. In re Marriage of Williams (Mont. 1986), [220 Mont. 232,] 714 P.2d 548, 554, 43 St.Rep. 319, 327. We find there is substantial credible evidence to support the property division.”

In re Marriage of Goodman, supra, at 222, 43 St.Rep. at 1414.

The order of the District Court is affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    WILLIAM PERRY, Claimant and Respondent, v. TOMAHAWK TRANSPORTATION, Employer, and Rockwood Services, Inc., Defendants and Appellants, and Travelers Insurance Company, Defendant and Respondent.
    No. 86-338.
    Submitted on Briefs Dec. 4, 1986.
    Decided April 7, 1987.
    735 P.2d 308.

      Anderson, Brown, Gerbase, Cebull & Jones, Stephen J. Harman, Billings, for defendants and appellants.
    Kelly & Halverson, P.C., William T. Kelly, Billings, for Perry.
    Marra, Wenz, Johnson & Hopkins, Dan L. Spoon, Great Falls, for Travelers Ins. Co.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Tomahawk Transportation (the employer and hereinafter referred to as Tomahawk) and Rockwood Services, Inc. (the insurer and hereinafter referred to as Rockwood) appeal a Workers’ Compensation Court order which (1) holds Rockwood liable for a work-related injury to claimant William Perry and (2) imposes a 20% penalty upon Rockwood for unreasonable denial or delay of benefits. The issues on appeal are (1) whether the court properly held Rockwood liable for claimant’s left arm injury, and (2) whether the court properly imposed a 20% penalty upon temporary total benefits paid by Rockwood pursuant to an interim court order and prior to the court’s final judgment. We affirm in part and reverse in part.

The point of contention in the instant case is which of Tomahawk’s insurers is liable for claimant’s left arm injury. It is undisputed that claimant suffered two compensable work-related injuries. While working for Tomahawk in May 1984, claimant suffered an injury to his left arm. At that time, respondent Travelers Insurance Company (Travelers) was the workers’ compensation insurer for Tomahawk and Travelers accepted liability for the injury. In September 1984, again while working for Tomahawk, claimant was injured when the wind blew the truck he was driving over onto its side. The truck landed on the driver’s side causing a blow to the left side of claimant’s body. Rockwood was Tomahawk’s workers’ compensation insurer at the time of this second accident. Claimant alleges, and the lower court found, that the September 1984 accident aggravated the injury to claimant’s left arm.

Rockwood voluntarily paid temporary total disability benefits to claimant from September 1984 until approximately six months later. On March 27, 1985, Rockwood terminated the disability payments to claimant. On May 8, 1985, the Workers’ Compensation Court ordered Rockwood to pay interim benefits to claimant pending resolution of the question of which insurer was liable for claimant’s left arm injury. Rockwood made those payments up until the court’s June 1986 final judgment and apparently still continues to pay claimant temporary total disability benefits.

In March 1985, claimant filed a petition for hearing with the Workers’ Compensation Court to resolve several disputes he had with Rockwood. Rockwood moved to join Travelers as a third party, which motion was granted. In June 1986, the court filed its final judgment in the case. The court held that Rockwood was liable for claimant’s left arm injury and imposed a 20% penalty on all temporary total benefits claimant was entitled to from March 27,1985, the date that Rockwood temporarily terminated the benefits, until the date of the judgment. This appeal followed.

To escape liability for the left arm injury, Rockwood had to prove by a preponderance of the evidence that the second injury did not aggravate the preexisting left arm condition and/or the claimant’s left arm had not reached a medically stable condition prior to the second injury. Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405. Rockwood had the burden of proof under Belton, 658 P.2d at 409, 410, wherein we stated,

“[T]he burden of proof is properly placed on the insurance company which is on risk at the time of the accident in which a compensable injury is claimed.”

The lower court found that the second injury did aggravate the preexisting left arm condition and that Rockwood failed to prove by a preponderance of the evidence that claimant’s left arm had not reached a medically stable condition. Therefore, the court held Rockwood liable for the left arm injury. Rockwood attacks both the above findings.

The standard of review is well settled.

“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that Court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn the decision.” (Citing cases.)

Denend V. Bradford Roofing & Insulation (Mont. 1985), [218 Mont. 505,] 710 P.2d 61, 63, 42 St.Rep. 1778, 1780. Rockwood, citing Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140, argues that this Court can determine what weight to assign the testimony because much of the testimony was submitted by way of deposition. We decline to do so since the court specifically relied upon a substantial amount of live testimony as critical evidence.

We find that there is substantial credible evidence to support the lower court’s finding that the September 1984 accident did aggravate claimant’s left arm injury. Dr. Gary Ray, who had treated or examined claimant numerous times over several years, testified repeatedly and unequivocally that the September 1984 accident aggravated the condition. We do not agree with Rockwood’s characterization of Dr. Ray’s testimony as incredible and unbelievable. Dr. Ray testified, and the record demonstrates, that he was quite familiar with both of claimant’s accidents and the resulting problems. Moreover, claimant also testified that his left arm was substantially worse after the September 1984 accident. Therefore, we uphold the court’s finding on this point.

Further, we uphold the court’s determination that Rockwood did not prove by a preponderance of the evidence that claimant’s left arm had not reached a medically stable condition prior to the September 1984 accident. We agree that the evidence on this point was simply inconclusive. Claimant testified that prior to the September 1984 accident he could tolerate his left arm condition and continue with his job. He also testified that his left arm was not improving prior to that accident. Dr. Frankel, who treated claimant over a substantial period of time, was asked in deposition how long he would expect claimant’s healing period to be after the May 1984 accident. He replied that the injury “may have quieted down in a week, and it may have taken two or three years. There is just no way to answer that question.” Dr. Frankel also testified that he would defer to the claimant’s statements on whether the second accident aggravated the left arm injury. We find credible evidence tending to show that claimant had reached a medically stable position. We also find credible evidence that it was impossible to tell in this particular case, given the peculiar circumstances of the injury and the timing of claimant’s medical examinations, whether claimant had reached a medically stable condition. Thus, we sustain the ruling that Rock-wood did not carry its burden of proving that claimant had not reached a medically stable condition.

The second issue is whether the lower court properly imposed the 20% penalty for insurer unreasonableness upon benefits paid by Rockwood. Only part of the 20% penalty imposed on Rockwood is at issue. On March 27, 1985, Rockwood terminated the temporary total disability benefits being made to claimant. Rockwood began making the payments again on about May 8, 1985, pursuant to a court order directing them to do so. Rockwood does not appeal the 20% penalty as it is imposed upon the benefits later awarded for this six week period from March 27, 1985 to May 8, 1985.

Rockwood paid temporary total disability benefits to claimant from May 8, 1985, until the lower court’s final judgment in June 1986. The court also imposed the 20% penalty upon the benefits paid during this period. Rockwood argues that the Montana statute governing the 20% penalty, Section 39-71-2907, MCA, does not authorize the imposition of the penalty in this situation. Section 39-71-2907, MCA, provides in part:

“When payment of compensation has been unreasonably delayed or refused by an insurer, either prior or subsequent to the issuance of an order by the workers’ compensation judge granting a claimant compensation benefits, the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits, may be increased by the workers’ compensation judge by 20%. (Emphasis added.)”

Those benefits which Rockwood paid from May 1985 until the final judgment in June 1986 were not due at the time the court imposed the penalty. The statute clearly allows the imposition of the penalty only upon those benefits which are due, that is, owed and payable. Therefore, the court erroneously imposed the penalty on those benefits already paid.

Remanded for entry of judgment in accordance with this opinion.

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

MR. JUSTICE SHEEHY, deeming himself disqualified, did not participate in this decision.


author: MR. JUSTICE HARRISON MR. JUSTICE HUNT,

text:
    STATE OR MONTANA, Plaintiff and Appellant, v. ARTHUR JOSEPH LaMERE, Defendant and Respondent.
    No. 86-347.
    Submitted on Briefs Nov. 25, 1986.
    Decided April 7, 1987.
    735 P.2d 511.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, David G. Rice, Co. Atty., Havre, for plaintiff and appellant.
    Mark Suagee, Havre, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by the State of Montana from an order issued by the Twelfth Judicial District Court in and for Hill County granting defendant’s motion to suppress evidence seized by the Havre police during an inventory search of defendant’s person prior to his incarceration.

We reverse the order of the District Court.

The sole issue on appeal is whether the District Court erred in granting defendant’s motion to suppress evidence.

Both parties stipulated to the following facts from which the District Court reached its decision:

“Defendant Lamere was lawfully arrested for driving under the influence, in violation of Section 61-8-401, MCA, on September 2, 1985 [correction to September 7, 1985] at approximately 2:00 a.m. in Havre, Hill County, Montana, by Laurel Zorn of the Havre Police Department.
“At the station following the arrest, Officer Zorn removed two items of personal property from the defendant as part of an inventory search at the police station. Both of these items were opened, searched and evidence seized therefrom.
“The first item opened was a leather pouch which had been removed from the inside pocket of defendant’s jacket which he was wearing at the time. Police zipped open this pouch, searched it and seized the contents. The contents included alleged drug paraphernalia and a white powder in the vial which field tested positive as cocaine.
“The second item taken from the defendant was a bank money bag which was removed from the defendant’s pants leg in a pat down search following seizure of the alleged cocaine. The police zipped open this bág and searched it producing two small bags of alleged marijuana.
“Both of these searches and seizures were effected without a search warrant although there was opportunity to make application for one. Both searches were done as part of the standard inventory procedure used by the Havre Police Department. Defendant did not consent to either search.”

In addition to these facts we add that an information was filed charging defendant with two counts of criminal possession of dangerous drugs and one count of criminal possession of drug paraphernalia. Defendant filed a motion to suppress all items seized by the police during the search. The District Court granted defendant’s motion to suppress and the State now appeals from this decision to suppress.

The District Court concluded that the removal of defendant’s two containers and the opening and searching of them without the defendant’s consent after his arrest but prior to his incarceration violated his right to be free from unreasonable search and seizure under the United States and Montana Constitutions. The District Court erroneously found that the facts of the case were governed by the reasoning stated in State v. Sierra (Mont. 1985), [214 Mont. 472,] 692 P.2d 1273, 42 St.Rep. 106.

In Sierra, the police removed a closed container of property — a small suitcase — from the defendant as part of a routine inventory search prior to incarceration. They opened and searched it without a warrant. The non-warrant search of the small, closed contained for inventory purposes was found to be in violation of defendant’s rights.

Appellant State requests this Court to reconsider its holding in State v. Sierra in light of decisions in other jurisdictions to follow the United States Supreme Court’s decision in Illinois v. Lafayette (1983), 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65. See People v. Decker (1986), 176 Cal.App.3d 1247, 222 Cal.Rptr. 689; Henderson v. State (1985), 16 Ark.App. 225, 699 S.W.2d 419; State v. Cole (Utah 1983), 674 P.2d 119.

While not cited by either brief due to its recent release, the decision by the United States Supreme Court, Colorado v. Bertine (1987),__ U.S. __, 107 S.Ct. 738, 93 L.Ed.2d 739, reinforces Illinois u. Lafayette, supra. In Bertine, police officers in Boulder, Colorado, arrested the petitioner, Steven Lee Bertine, for driving while under the influence of alcohol. After he was taken into custody, and before the arrival of a tow truck to take Bertine’s van to an impounded lot, another officer while acting in accordance with local police procedure, inventoried the van’s contents. The officer opened a closed backpack in which he found controlled substances, cocaine paraphernalia, and a large amount of cash. Prior to Bertine’s trial on charges that included unlawful possession of cocaine with intent to dispense, sell, and distribute, a state trial court granted Bertine’s motion to suppress the evidence found during the inventory search. The Colorado trial court ruled that the search did not violate Bertine’s rights under the Fourth Amendment, but held the search violated the Colorado Constitution. The Colorado Supreme Court affirmed, but premised its ruling on the United States Constitution. The United States Supreme Court reversed, holding that the Fourth Amendment did not prevent the state from proving criminal charges with evidence discovered during the inventory of Bertine’s van.

The State argues, and we agree, that City of Helena v. Lamping (Mont. 1986), [221 Mont. 370,] 719 P.2d 1245, 43 St.Rep. 901, should have governed the District Court’s decision and not State v. Sierra, supra. In Lamping the defendant was lawfully arrested for unrelated offenses and taken to the county jail to be jailed. Prior to incarceration the jailer inventoried Lamping’s personal property. While searching him the jailer took an open cigarette package out of Lamping’s shirt pocket and discovered a hand rolled marijuana cigarette in it. Lamping was charged with possession of dangerous drugs. In Lamping, we pointed out that dangerous instrumentalities can be concealed in innocent looking articles taken from an arrestee’s possession and the State has a compelling interest in protecting prisoners from potential dangers and must also protect the defendant and the officer by accounting for any money the person has. We concluded that the inventory search in Lamping was not unreasonable for failure to secure a search warrant.

We conclude that the theory of Lamping is applicable here. We further point out that in Bertine, the Court analyzed the inventory procedure in a manner which we find directly applicable to the present case:

“In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in Opperman and Lafayette are nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property.”

Bertine, supra,_U.S. at_, 107 S.Ct. at 741.

We adopt the Bertine rationale for inventory search and conclude that in the present case, the order suppressing evidence should be reversed and the case returned to the District Court for trial.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and GULBRANDSON concur.

MR. JUSTICE HUNT,

dissenting:

I strongly dissent from the majority opinion and argue two separate authorities should control this matter. First, I argue that State v. Sierra (Mont. 1985), [214 Mont. 472,] 42 St.Rep. 106, 692 P.2d 1273 should be determinative of this case. The majority opinion overturns Sierra by its blanket adoption of City of Helena v. Lamping (Mont.1986), [221 Mont. 370,] 43 St.Rep. 901, 719 P.2d 1245, and Illinois v. Lafayette (1983), 462 U.S., 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, and the United States Supreme Court decision of Colorado v. Bertine, (1987) _ U.S. _, 107 S.Ct. 738, 93 L.Ed.2d 739, to the facts of this case, and in so doing ignores the mandates of our Montana Constitution’s right of privacy provision.

Lamping appears to rely on a 1981 Supreme Court case U.S. v Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285 for its authority. The majority erroneously adopts Lamping as controlling law in this case. The contradictions within the Lamping opinion and now this majority opinion are glaring and problematic. It is unclear precisely what was upheld in Lamping and it is unclear in this majority opinion what aspects of Lamping are being reaffirmed here. The rationale in the Monclavo-Cruz decision upon which Lamping relied regarding inventory searches was that searches of the person could be distinguished from searches of possessions within the immediate control of the arrestee — the later having a greater expectation of privacy. The State in the present case argues that the Supreme Court case, Lafayette, removed this distinction by now allowing a warrantless inventory search of any container or article in an arrestee’s possession if it is done as a routine administrative procedure incident to incarceration. The majority agree with the State’s claim that Lamping confirmed this Court’s agreement with Lafayette which, in my opinion, Lamping does not do. Lamping utilizes the Monclavo-Cruz distinctions which Lafayette had already done away with. Lamping states:

“We concur with this distinction drawn between searches of the person and searches of possessions within an arrestee’s immediate control . . .” 43 St.Rep. at 903, 719 P.2d at 1247.

In reality this distinction in Monclavo-Cruz did not even go to the discussion of inventory search issues but addressed searches incident to an arrest. Lamping also adds another distinction. The defendant’s cigarette pack in his shirt was open and the court held:

“. . . when a container is open, the intrusion is justified to protect the other prisoners from harm. The contents of an unsecured package should be inventoried separately. . .” Id. at 904, 1248.

Thus Lamping appears to premise its decision on what the U.S. Supreme Court indicated is an out-moded federal distinction between possession on and off the person as well as whether a container is open or closed. These premises contradict the Lafayette, and Bertine cases which the majority now rely on.

Regardless of the convoluted reasoning relied on in citing the Lamping decision, the majority is in error here in a more fundamental way.

It is my opinion that the framers of our Montana Constitution provided a more expansive right of privacy than either Lafayette, or Bertine indicate is provided for in the penumbras of our federal Constitution. Sierra was decided by this Court on this very issue and bears out this position. See also State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131.

The appellant State requests this Court to reconsider its holding in Sierra in light of decisions in other jurisdictions to follow Lafayette. That is not necessary since the Sierra Court did fully consider the inventory search issue raised there as well as similar issues recently raised in Bertine. The Sierra court concluded the non-warrant search of the arrestee’s small closed suitcase not on defendant’s person conducted for inventory purposes prior to his incarceration was a violation of his right of privacy guaranteed by Art. II, Sections 10 and 11 of the Montana Constitution since, under those circumstances, less intrusive means were available to accomplish the task of inventorying the arrestee’s belongings. That search was therefore held to be unreasonable.

The right to privacy provision of the Montana Constitution affords an individual greater protection than its federal counterpart as interpreted by recent federal case law. As such, “. . . we are not compelled to march lock step with pronouncements of the United States Supreme Court if our own constitutional provisions call for more individual rights protections than that guaranteed by the U.S. Constitution.” Sierra at 1276.

Again we quote the Sierra court’s adoption of the holding in Reeves v. State (Alaska 1979), 599 P.2d 727, and find it applicable to this case:

“The search of an arrestee’s person should be no more intensive than reasonably necessary to prevent the entry of weapons, illegal drugs, and other contraband or other potentially dangerous items into the jail. Any items taken from the arrestee’s possession in this search may not be further searched or opened except pursuant to a search warrant or another recognized exception to the warrant requirement applicable in the circumstances. Finally, the inventory conducted shall consist of a cataloging of the arrestee’s property thus seized and may not, without a specific request from the arrestee, extend to a search and inventory of the contents of any object, closed or sealed container, luggage, briefcase, or package. We believe that a pre-incarceration search thus limited both adequately protects the reasonable interests of the state and appropriately respects an arrestee’s reasonable expectation of privacy. (Emphasis added.)”

599 P.2d at 737-738.

We have also dealt with this issue in State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131. There we held that the U.S. Fourth Amendment issue need not be reached in a case involving an inventory search of an automobile without a warrant and seizure of amphetamine pills from under the seat of the automobile. This Court found the situation was governed by the Montana Constitution’s right of privacy provision.

The following quote from that case is equally applicable here:

“We need not consider the Fourth Amendment issue because we view the Montana Constitution to afford an individual greater protection in this instance than is found under the Fourth Amendment in Opperman.
“The 1972 Montana Constitution, Art. II, Sections 10 and 11, provided:
“Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.
“Section 11. Searches and seizures. The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.
“The importance of the right of individual privacy to the framers of the Montana Constitution is obvious from these provisions. This Court has previously noted the significance of the explicit guarantee of the right of individual privacy contained in Section 10, as a comparable provision exists in the United States Constitution. State v. Coburn, 165 Mont. 488, 495, 530 P.2d 442 (1974).
“It is also clear that an inventory search such as the one considered here is a significant invasion of individual privacy, the inventory search must meet the “reasonableness” and “compelling state interest” standards of the Montana Constitution .... (Emphasis added.)”

Id. at 517, 1133-1134.

In the instant case, the Havre police had a legitimate governmental interest in performing an inventory search of defendant prior to incarceration. No evidence was presented that the police station’s storage facility was not secure or could not reasonably be made secure, nor that the two containers could not have been well protected from theft or destruction without searching them. Further the police had no reason to believe the containers held weapons or explosives so a search of their contents was not justified on that count.

Because of this State’s more expansive right of privacy provision as discussed in Sierra and in Sawyer, the existence of these legitimate governmental interests does not permit an inventory search in these circumstances since the police could have used less intrusive means to inventory the defendant’s belongings.

The second issue is equally determinative of this case.

Unlike Lamping, there were no open containers at issue. The defendant was carrying two closed, zippered containers on his person. The police found the first container on the inside of defendant’s jacket pocket. This container should not have been searched without defendant’s consent but it was. It could easily have been sealed and placed in storage or treated with less intrusive means unless other circumstances were shown establishing probable cause to do an investigatory search of the container.

The second container was discovered after the first one had been opened and the contents observed. This is the precise situation which suggests that the inventory procedure was a “pretext concealing an investigatory police motive” as forbidden in South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, and other cases. The existence of such a possible pretext drastically changes the nature of this search from a warrantless routing inventory search into an investigatory search which mandates a warrant, the strictest Fourth Amendment protections of a defendant in this situation.

The police were not foreclosed from discovering the contents of these containers if they could establish probable cause to search the containers. After the discovery of the money bag in defendant’s pants, an arguably suspicious situation, application for a search warrant could have been made by the police. No attempt was made to obtain a warrant at any stage in these proceedings.

This possible pretext concealing an investigatory police motive is an elemental prohibition and an ever constant threat to any defendant’s Fourth Amendment rights. Even the recent Bertine case which was relied on by the majority upheld the particular inventory search in part because “There was no showing . . . that the police, who were following standardized caretaking procedures acted in bad faith or for the sole purpose of investigation or on the suspicion of evidence of criminal activity.” (1987) __ U.S. __, 107 S.Ct. 738, 93 L.Ed.2d 739. Therefore, on this issue also the majority erred by not upholding the lower court’s decision.

MR. JUSTICE SHEEHY, concurs in the foregoing dissent.


author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    MARGARET HEISLER, Plaintiff and Respondent, v. RITA GAYLE BOULE, Personal Representative of the Estate of Robert Boule, Deceased, Defendant and Appellant.
    No. 86-507.
    Submitted on Briefs Jan. 15, 1987.
    Decided April 7, 1987.
    735 P.2d 516.

      Conklin, Nybo & LeVeque, E. Lee LeVeque, Great Falls, for defendant and appellant.
    Dennis P. Conner, Great Falls, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Rita Gayle Boule, as personal representative of the estate of Robert Boule, appeals a July 30, 1986 order for a new trial granted by the District Court of the Eighth Judicial District, Cascade County. We affirm the District Court’s order.

This is a civil action in which the plaintiff, Margaret Heisler, sued the estate of defendant Robert Boule seeking recovery for injuries she sustained in an automobile accident in March of 1983, at an intersection in Great Falls, Montana. Trial was held in Cascade County in July, 1986. The jury returned a special verdict finding the defendant 36% negligent (by an 8-4 vote) and the plaintiff 64% negligent by a (12-0 vote), thereby allowing the plaintiff no recovery. Plaintiff moved for a new trial, alleging error in the admission of a tape recorded statement made by Boule following the accident. Heisler’s motion for a new trial was granted by the District Court and the defendant has brought this appeal.

Three issues are raised on appeal:

1. Whether the decedent’s tape recorded statement, made to his insurance claims representative six days after the accident, was admissible under the residual exception to the hearsay rule.

2. Whether the admission of the Boule tape recorded statement was harmless error because it was cumulative evidence or prejudicial error entitling Heisler to a new trial.

3. Whether the trial judge abused his discretion by granting plaintiff-respondent Heisler’s motion for a new trial.

On March 10,1983, two automobiles, operated by Margaret Heisler and Robert Boule, collided at the intersection of 9th Street and 8th Avenue North in Great Falls. Heisler had made a left-hand turn at the intersection in front of the oncoming Boule vehicle and the two cars collided, causing injuries to both drivers. Heisler was cited by the investigating Great Falls City Police officer for a right-of-way violation.

Heisler filed a personal injury lawsuit against Boule’s estate in May, 1985, claiming that his car was traveling at an excessive speed and that his negligence was, therefore, the proximate cause of the injuries she sustained in the accident. Boule had died in October from injuries he suffered in another automobile accident in which he was a passenger.

Immediately following the accident, a Great Falls Police Department traffic investigator interviewed both drivers and conducted an investigation of the accident. The interviews took place both at the scene of the accident and shortly after the hospital where both drivers had been taken. Boule told the officer that he was traveling within the posted speed limit of 30 m.p.h., that the Heisler vehicle had made a left-hand turn in from of him and that he was unable to avoid the collision.

Boule and Heisler were insured by the same insurance company, and six days after the accident they both gave tape recorded statements to an insurance claims representative from their company. The portion of Boule’s statement at issue here follows:

“Q. (By insurance representative) Why don’t you just give us direction of travel, and your side of the story as what happened that day. A. (By Boule) Okay, I was traveling north on 9th Street, and as far as I can remember, she was traveling south on 9th Street and she just made a left-hand turn right in front of me. I didn’t have time to hit the brakes or anything, she was just right there, and I hit her.
“Q. What is the approximate speed limit there? A. It’s 30 miles per hour.
“Q. Okay, and you were traveling? A. I was traveling about 30 miles per hour.
“Q. Is there anything you might add, just to clarify the situation as far as my report? A. No, I can’t think of anything other than, you know, there just wasn’t any time to react to her being in front of me.”

Defendant-appellant Boule filed a motion in limine with the court seeking an order allowing the admission at trial of Boule’s tape recorded statement. The trial court ruled that this statement was admissible because it fell within the residual exception to the hearsay rule.

At trial, over Heisler’s objection, the tape was played for the jury by the insurance claims adjustor. The tape was edited, by order of the District Judge, to remove evidence of insurance.

Following a verdict for the defense, plaintiff’s counsel filed a motion for a new trial, alleging that the tape recording of the decedent was an inadmissible hearsay statement improperly admitted at trial. The trial judge reversed his earlier ruling and granted plaintiff a new trial, relying on the authority of In the Matter of D.W.L. (1980), 189 Mont. 267, 615 P.2d 887.

The first issue we will address is whether the decedent’s tape recorded statement was admissible under the residual exception to the hearsay rule.

Rule 801(c), M.R.Evid., provides that “[H]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802, M.R.Evid., provides that “Hearsay is not admissible except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state.” Rules 803 and 804, M.R.Evid., list the hearsay exceptions. Both include residual exceptions, which state:

“Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness. (Emphasis added.)”

Rule 803(24), and Rule 804(b)(5), M.R.Evid. Rule 803(24) is the counterpart of 804(b)(5) in all respects except that the unavailability of the declarant need not be demonstrated as a prerequisite for admission of the evidence. Rule 804(b)(5) is applicable here as Boule fell within its definition of an unavailable witness.

Appellant Boule argues that although the tape recorded statement is hearsay, it falls within the exception set out above, because the recorded statement possesses “circumstantial guarantees of trustworthiness” comparable to the other enumerated exceptions in Rule 804(b)(5). In support of this assertion, appellant argues:

“There are many factors indicating the statements of Mr. Boule were trustworthy and therefore admissible. First, Mr. Boule had made prior identical statements on the day of the accident to investigating Great Falls City Police. Second, the statement was a formal, tape recorded statement made with Boule’s permission which would later be preserved and transcribed. Third, the statement was corroborated by the investigating police officer who examined the scene, interviewed the drivers and witnesses, and cited the other driver. Fourth, the statement was made within a few days of the accident when the events were still fresh in Boule’s mind. Fifth, the police investigation had been concluded and the other driver cited. Sixth, the statement was made to the insurance claims representative, the ‘authority’ handling the insurance claim. Seventh, since both drivers were insured by Farmers, the ‘fault’ of either was of little significance, there was coverage in any event for the injuries sustained by the two drivers. Eighth, the statement was corroborated by the automobile accident reconstruction expert who thoroughly and scientifically investigated the crash. Ninth, there was no conflicting evidence testified to at trial by any of the eyewitnesses or the plaintiff herself as to the speed of Boule’s vehicle in excess of the 30 mile per hour limit.”

We examined the trustworthiness requirement in State v. LaPier (Mont. 1984), [208 Mont. 106,] 676 P.2d 210, 41 St.Rep. 203. There we noted that the way to determine whether or not the proposed evidence has comparable guarantees of trustworthiness is to apply the circumstantial guarantees of trustworthiness found in the other exceptions in Rule 804(b)(5):

“In regard to the first exception enumerated in Rule 804(b), former testimony, the Commission states that the circumstantial guaranties of trustworthiness can be found in the conditions under which this type of hearsay statement is made; that is, the witness is under oath and subject to cross-examination. The circumstantial guaranty of trustworthiness found in the second exception, statements made under belief of impending death, are the requirements that the statement be made under a sense of impending death and that it concern the cause of death. The third exception, statements against interest, have as their circumstantial guaranties of trustworthiness the fact that persons generally do not make statements against their interest unless those statements are true. The fourth exception, statements of personal or family history, also have as their circumstantial guaranty of trustworthiness a propensity for the truth. The Commission found that the guaranty arises ‘when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community’s conclusion, if any has been formed, is likely to be a trustworthy one.’ Citing 5 Wigmore on Evidence, section 1580 at 444.”

676 P.2d at 211, 41 St. Rep. at 206.

The facts of this case do not satisfy the requirements of trustworthiness under Rule 804(b)(5). There was no sense of impending death, no statement against interest, nothing about personal or family history, and Boule’s statement was not made under oath or subject to cross examination. Defendant argues that there were nine factors insuring the trustworthiness of Boule’s statement to the claims adjustor. Of the nine factors, three pertain to the supporting evidence given by the investigating police officer. Her testimony was admitted at trial, and although it supports Boule’s position, it does not provide the “circumstantial guarantees of trustworthiness” required by 804(b)(5) necessary to permit the taped statement to be used as evidence. The officer’s testimony stands in and of itself, it does not guarantee the truthful nature of Boule’s statement to the adjustor. This is true also for the evidence given by the automobile accident reconstruction expert. Also, the fact that there was no conflicting eyewitness testimony does not directly attest to Boule’s veracity when giving his insurance claim statement.

Five of the nine arguments focus on the formal “authoritative” process used by the claims investigator in the interview. Defendant implies that since the process was a formal one, the guarantees of trustworthiness were comparable. We cannot accept defendant’s assertion. There is too great a leap of logic to be made in reaching the conclusion that statements made to an insurance claims adjustor have a guarantee of trustworthiness comparable to the situations listed in Rule 804(b)(5).

For these reasons we hold that the recorded statement was not admissible under the residual exception to the hearsay rule.

Defendant next argues that the admission of the tape recorded statement, even if found to be inadmissible hearsay, was harmless error because it was merely cumulative evidence, and asserts that because of this, a new trial is not required. Defendant supports her assertion by pointing to the testimony given by the investigating police officer that Boule told her he was driving within the 30 m.p.h. speed limit, that she believed he was traveling within the speed limit, and that she felt that the cause of the accident was Mrs. Heisler’s improper left-hand turn. Defendant also points to the testimony of the accident reconstruction expert, arguing that his testimony, in addition to the police officer’s contributed to the conclusion that Boule was not speeding, and that this evidence was sufficiently clear that admission of the tape recording was harmless error.

We find that admission of Boule’s tape recorded statement was clearly prejudicial, and not merely harmless cumulative evidence. The taped statement was introduced to the jury as evidence without explanation about the circumstances under which it was taken. The jury did not know that the statement was given by Boule to his insurance company’s claim representative. The jury was not exposed to any foundational information reflecting biases or prejudices on the part of the adjustor in asking the question or Boule in answering them. The tape was introduced without information that the jury needed to put Boule’s statement in proper perspective.

It is a well established general rule that evidence pertaining to a party’s liability insurance coverage is inadmissible to prove whether the party acted negligently. Rule 411, M.R.Evid. However, Rule 411 contains the caveat “This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of . . . bias or prejudice of a witness.” Clearly, the conditions under which Boule’s tape recorded statement was taken should have been made known to the jury, as bias and prejudice were both factors potentially effecting both Boule’s answers and the investigator’s questions. Plaintiff should have been permitted to show that the recorded statement was taken by an employee of defendant’s insurance company. Complete Auto Transit, Inc. v. Wayne Broyles Engineering Corp. (5th Cir. 1965), 351 F.2d, 478; Mideastern Contracting Corp. v. O’Toole (2nd Cir. 1932), 55 F.2d 909. Hence we hold that admission of the recorded statement without foundational testimony was neither cumulative nor harmless error.

Respondent’s final issue is her argument that the trial judge abused his discretion by granting Heisler’s motion for a new trial based on In the Matter of D.W.L. (1980), 189 Mont. 267, 615 P.2d 887.

The judge’s order granting a new trial stated:

“THIS MATTER coming on for hearing on Plaintiff’s Motion for a New Trial and in consideration of the case of In the Matter of D.W.L. (1980), [189] Mont. [267], 615 P.2d 887, the Court finds that inadmissible hearsay was improperly admitted during trial and that the Plaintiff was unfairly prejudiced thereby. Therefore, it is hereby
“ORDERED, that the Plaintiff’s motion be and the same hereby is granted; that the judgment heretofore entered herein be and the same hereby is set aside, and that a new trial be had.”

Respondent argues that granting a new trial based on the case cited was an abuse of the District Court’s discretion and should be overturned.

There are several well established rules governing new trials. The trial court has broad discretion in granting or refusing to grant a new trial. Ployhar v. Board of Trustees of Missoula County High Schools (1980), 187 Mont. 363, 609 P.2d 1226. Also, an order granting a new trial will be upheld if it can be sustained on any ground contained in the order. Ployhar, supra; Tigh v. College Park Realty Co. (1967), 149 Mont. 358, 427 P.2d 57. However, a prima facie case of abuse of discretion may be made by discrediting the grounds specified for granting the new trial. Tigh, supra.

The question before this court then is whether the order may be sustained on the ground specified by the District Court as the reason for granting the new trial. In this case, the District Court relied on In the Matter of D. W.L. for its order granting a new trial. The appellant argues that D.W.L. is “completely distinguishable” from the instant case.

The analogy between this case and In the Matter of D.W.L. is sufficient to uphold the District Court’s order. In the Matter of D. W.L. involved a youth accused of taking a car without the owner’s consent. The complaining victim signed a stolen auto report on the day his vehicle was stolen but died before the hearing. Because of his death, the State faced the problem of proving that the vehicle was taken without the owner’s consent. The stolen auto report was inadmissible hearsay. In order to establish this element of the crime, the State had one police officer testify that he had watched the complainant sign the stolen property report and another officer testify that he had picked up the stolen property report from the complainant’s residence. This Court found the testimony of the two officers to be inadmissible hearsay, offered only to prove the truth of the matter asserted, i.e., the fact that D.W.L. exerted unauthorized control over the car.

Although we are not confronted with the same factual scenario in this case, the rule of law established in In the Matter of D. W.L. is certainly applicable here. Clearly the only reason to play Boule’s tape recorded statement for the jury was to prove the truth of the matter asserted, that Boule was driving within the speed limit and that it was Heisler’s poor driving that caused the accident. The recording was hearsay. Further, in D.W.L., this Court found that the policemen’s testimony regarding the stolen property report was not admissible under any of the exceptions to the hearsay rule. Certainly the statement in D. W.L. was more reliable than the one given in this case, as it was made in the presence of a police officer for an official investigation. Nonetheless, we did not find any applicable exceptions to the hearsay rule. We believe that application of the rule of law established in In the Matter of D. W.L. was logical and that the District Court exercised proper discretion in ruling that a new trial was necessary.

Affirmed.

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

MR. JUSTICE GULBRANDSON,

specially concurring:

I concur in the result but not in all that is said in the Opinion.


text:
    RICHARD GOLDSMITH, d/b/a Richard Goldsmith’s Premium Ice Cream, Plaintiff and Respondent, v. MAX LANE, d/b/a G & R Refrigeration, Defendant and Appellant.
    No. 86-588.
    Submitted on Briefs Feb. 26, 1987.
    Decided April 7, 1987.
    735 P.2d 306.

      Datsopoulos, MacDonald & Lind, Edward A. Murphy, Missoula, for defendant and appellant.
    Knight & Maclay, Gregory Gould, Missoula, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Max Lane appeals the order of the District Court in the Fourth Judicial District in and for Missoula, Montana, dismissing his appeal from a judgment of the Missoula Municipal Court. We affirm.

Richard Goldsmith, d/b/a Richard Goldsmith Premium Ice Cream, filed suit in Missoula Municipal Court against Max Lane, d/b/a G & R Refrigeration, for damages suffered as a result of Lane’s alleged defective installation and repair of refrigeration and ice-making equipment. After a bench trial, municipal judge, the Honorable Wallace N. Clark, entered judgment for Goldsmith in the amount of $2,837.72.

Lane filed a notice of appeal in municipal court within thirty days of notice of entry of judgment, but he did not file an undertaking. Nor did he serve notice of appeal on either Goldsmith or his attorney. Goldsmith’s attorney was advised that an appeal had been filed when he contacted the court to inquire whether Lane had objected to the memorandum of costs filed by Goldsmith. The clerk was asked to and did mail a copy of the notice of appeal to Goldsmith’s attorney.

Thirty-four days after Lane filed his notice of appeal, Goldsmith filed a motion to dismiss on the grounds that no undertaking had been filed and notice of appeal had not been served. A supporting brief was filed. Lane did not respond to the motion or file a brief within ten days. Goldsmith then requested summary disposition pursuant to local court rules. “Every court of record may make rules, not inconsistent with the laws of this state, for its own government and the government of its officers.” Section 3-1-112, MCA. The rules apparently provide that the District Court may dispose of a motion summarily, if the opposing party does not file and serve the required answering memorandum within ten days after service of a motion and supporting memorandum. Goldsmith moved to dismiss and filed and served a supporting memorandum on Lane August 6, 1986. No answering memorandum had been filed by August 19, and a request for summary disposition was filed and served on Lane August 20. The following day Lane filed a motion for leave to deposit cash in lieu of an undertaking and a memorandum in opposition to Goldsmith’s motion to dismiss. He did not request a hearing on the motion to dismiss. He delivered a cashier’s check to the Clerk of the District Court in the amount of $2,881.55, the amount of the judgment plus $43.83.

The District Court dismissed Lane’s appeal on the grounds it had no jurisdiction because Lane had not filed an undertaking within thirty days of judgment. His motion for leave to deposit cash in lieu of an undertaking was denied. Lane appeals.

Appeal from a civil action in city court may be taken within thirty days after judgment is rendered. Section 25-33-102, MCA. The appeal is taken by serving a copy of the notice of appeal on the adverse party or his attorney and by filing the original notice of appeal with the judge. It is not material whether service or filing is accomplished first. Section 25-33-103, MCA. However, an appeal is not effectuated for any purpose unless an undertaking is filed in accordance with the statutory requirements of Section 25-33-201, MCA, except that a deposit of money in lieu of undertaking in the amount of judgment plus $300 is equivalent to filing the undertaking. Section 25-33-205, MCA.

Unless the undertaking on appeal complies with the statute, the District Court has no jurisdiction to hear the appeal. “[I]f such undertaking is not filed, or is totally defective, the appeal is a mere nullity.” State ex rel. Gregory v. District Court (1930), 86 Mont. 396, 398, 284 P.537, 537; Adams v. Crismore (Mont. 1984), [211 Mont. 245,] 683 P.2d 497, 499, 41 St.Rep. 1338, 1340. However,

“[w]hen the undertaking is insufficient a new one may be filed, and the appeal, or appeals, be saved; but when the one filed is void, the court has not obtained jurisdiction and the appeal must fail.”

Pirrie v. Moule (1905), 33 Mont. 1, 6, 81 P. 390, 392. While “[a] void undertaking is nothing — a mere nullity,” Pirrie, supra at 3, 81 P. at 391, the term “insufficient” means merely defective and not void. Pirrie at 5, 81 P. at 392. We noted in Pirrie an undertaking which is void is not amendable while an insufficient or defective undertaking may be amended. Although the undertaking in Pirrie was void for ambiguity, because it was void, the court had no jurisdiction. A void undertaking is the functional equivalent of no undertaking. The question of the sufficiency or insufficiency of an undertaking cannot arise until the undertaking has been filed.

Lane failed to meet the statutory deadline essential to perfect the appeal. Therefore, the order of the District Court is affirmed.

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


author: MR. JUSTICE WEBER

text:
    In the Matter of the Application of LARRY McGAHA, Workers’ Compensation Claimant, for a Declaratory Ruling on the Applicability of § 39-71-402(1), MCA, (1983), to his Workers’ Compensation Claim. LARRY McGAHA, Claimant and Respondent, v. GREYHOUND LINES, INC., Defendant and Appellant.
    No. 86-344.
    Submitted March 20, 1987.
    Decided April 9, 1987.
    735 P.2d 521.
    Keefer, Roybal, Hanson, Stacey & Jarussi, Neil S. Keefer argued, Billings, for defendant and appellant.
    Datsopoulos, MacDonald & Lind, Dennis E. Lind argued, Missoula, for claimant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Workers’ Compensation Court made a declaratory ruling that Mr. McGaha is eligible for Montana workers’ compensation benefits for an injury suffered in Twin Falls, Idaho. Greyhound Lines, Inc., the self-insured employer, appeals. We affirm.

The issue is whether the Workers’ Compensation Court correctly ruled that Mr. McGaha is eligible for Montana worker’s compensation benefits under Section 39-71-402(1), MCA, as an employee temporarily working out of state.

The facts are not contested. Mr. McGaha had been employed as a driver for Greyhound Lines, Inc. (Greyhound) since 1974. He moved to Montana in 1978 and now resides in Clinton, Montana. Beginning in 1978 and up until just before his injury, Mr. McGaha was an “extra-board” bus driver out of Missoula, Montana. He regularly drove from Missoula to Butte and back.

Greyhound bus drivers are subject to a negotiated labor agreement which ranks all drivers within regional districts according to seniority. Mr. McGaha’s district included Montana, Utah, Idaho, Oregon and part of Washington. The drivers within the region with the most seniority have the opportunity of selecting the best paying bus runs, while those drivers with the least seniority must drive the lesser preferred routes.

This seniority system comes into play when Greyhound chooses to reduce scheduled service. During slow periods, Greyhound reduces the number of active positions in its force. This reduction creates a domino effect whereby senior drivers within a district “bump” junior drivers out of their regular positions. In February 1983, a senior driver bumped Mr. McGaha from his position operating out of Missoula. According to the labor agreement, Mr. McGaha then had 24 hours to bump another driver in the district. If he did not act within 24 hours, he would lose his guaranteed base wage. He bumped a junior driver from a regular bus route running between Salt Lake City, Utah, and Twin Falls, Idaho. On his first trip, Mr. McGaha injured his back while loading luggage in Twin Falls.

Greyhound initiated payment of workers’ compensation and medical benefits under Utah’s workers’ compensation laws. Utah was selected pursuant to Greyhound’s policy of considering the point of origin of the bus run as the place of employment. Mr. McGaha has received temporary total disability benefits under the laws of Utah for over three years. He has been unable to return to work as a bus driver and recently underwent surgery for a spinal fusion. He now wishes to be allowed to recover benefits under the Montana extraterritorial workers’ compensation statute, instead of under Utah law. Mr. McGaha accordingly argued to the Montana Workers’ Compensation Court that he was employed in Montana, his absence from the state was temporary, and this temporary absence was incidental to his Montana employment. Greyhound argued that the labor agreement in effect at the time of Mr. McGaha’s accident precluded extraterritorial application in this case. It characterized the labor agreement as a multi-state employment contract and argued that Mr. McGaha was a regional employee rather than a Montana employee.

The Workers’ Compensation Court entered a declaratory judgment that Mr. McGaha was entitled to Montana benefits. Greyhound appeals from that judgment.

Did the Workers’ Compensation Court correctly rule that Mr. Mc-Gaha is eligible for Montana workers’ compensation benefits under Section 39-71-402(1), MCA, as an employee temporarily working out of state?

Séction 39-71-402(1), MCA, states:

“If a worker employed in this state who is subject to the provisions of this chapter temporarily leaves the state incidental to that employment and receives an injury arising out of and in the course of such employment, the provisions of this chapter shall apply to such worker as though he were injured within this state.”

The findings of the Workers’ Compensation Court which relate to this issue are:

“8. As a result of a cutback in the Greyhound driver work force in February of 1983, claimant was displaced or bumped from his extra board position in Missoula, Montana, by a senior driver from Spokane, Washington.
“9. Greyhound provides a guaranteed minimum salary to its drivers.
“10. Pursuant to the labor agreement, a displaced driver has 24 hours to find a position within the district in order to avoid losing the guaranteed salary. If a displaced driver takes longer than 24 hours, the driver has up to five days to displace another driver within the district in order to receive a proportionate share of his guaranteed salary.
“11. In order for a driver to continue his salaried employment with Greyhound he is required to use his seniority and displace another driver within the district.
“12. In the event that a senior driver does not exercise his seniority privilege in displacing another driver within the district, Greyhound may and has terminated a driver’s employment.
“13. Claimant chose to displace a driver in Salt Lake City, Utah, because it paid better and was the closest available location to his family and residence in Clinton, Montana.
“14. Claimant was in the State of Utah less than 24 hours prior to his injury on February 13, 1983, in Twin Falls, Idaho on his first trip originating out of Utah.
“15. Claimant stayed with friends overnight in Salt Lake City and did not establish or intend to establish any permanent address or domicile.
“18. Claimant has no interest in Utah other than the trip which resulted in his injury.
“19. Claimant intended to return to his home in Montana after his work in Utah.”

We are bound to uphold the facts found by the Workers’ Compensation Court where there is substantial credible evidence in the record to support those findings of fact. McGee v. Bechtel Corp. (1979), 182 Mont. 149, 154, 595 P.2d 1156, 1158-59. The transcript and the deposition of Mr. McGaha support the findings of fact of the lower court. We must therefore uphold them, despite Greyhound’s argument that Mr. McGaha’s employment on the Salt Lake City - Twin Falls route was neither guaranteed to be temporary nor a position assigned to him by Greyhound, but was totally dependent on the exercise of seniority rights by Mr. McGaha and the other drivers.

The Workers’ Compensation Court concluded that Montana had a sufficient interest in Mr. McGaha’s case to justify application of the extraterritorial statute. The record supports this conclusion. Mr. McGaha has been employed in Montana for four years immediately prior to the date of his injury, and had established his residence in this state. He testified that he had once before had a similar absence from Montana, when he was “bumped” from his position in Missoula, and that his absence from the state at that time was of a short and temporary duration. In this instance, he was injured within his first 24 hours of working outside of Montana. He testified that he had intended to return to Montana as soon as possible, and that he did in fact regain his Missoula position, but was unable to work it due to his injuries. We must also consider the requirement of Section 39-71-104, MCA, that the workers’ compensation statutes be liberally construed in favor of the claimant.

We hold that the Workers’ Compensation Court correctly concluded that Section 39-71-402(1), MCA, applies under the specific facts of this case. We affirm the decision of the lower court. In doing so, we emphasize the nature of this action as a declaratory judgment only. It does not otherwise affect Mr. McGaha’s entitlement to benefits or the calculation of these benefits.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT and the HON. ROBERT J. BOYD, District Judge, sitting for MR. JUSTICE MORRISON, concur.


text:
    IAN CHRISTOPHERSON, Petitioner and Appellant, v. STATE OF MONTANA, State Tax Appeal Board, and Montana Department of Revenue, Respondents and Respondents. Leo C. Might, Intervenor.
    No. 86-357.
    Submitted on Briefs Jan. 22, 1987.
    Decided April 9, 1987.
    Rehearing Denied May 13, 1987.
    735 P.2d 524.

      Sol & Wolfe, Michael Sol, Missoula, for appellant.
    Charles A. Smith, III, State Tax Appeal Board, Michael Garrity, Dept, of Revenue, Helena, Geiszler, Taylor, Newcomer & McClain, Kerry N. Newcomer, Intervenor, Missoula, for respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Petitioner Ian Christopherson appeals orders of the Fourth Judicial District Court denying petitioner’s application for writ of mandamus and/or prohibition, permitting intervention by Leo Might, and partial award of attorney’s fees to Might. We affirm.

On September 7, 1983, Ian Christopherson filed an application with the Montana Department of Revenue (DOR) requesting a liquor license transfer to himself from another individual. Christopherson intended to use the license for operation of the OK Corral Bar located at 411 N. California in Missoula, Montana. Following hearing on the transfer request, the hearings examiner determined the proposed location was in violation of local zoning ordinances and denied the application. On April 12, 1984, the director of DOR affirmed the decision.

Pursuant to statute, Christopherson appealed the DOR decision to the Montana State Tax Appeal Board (STAB). Contemporaneous with that appeal, Christopherson filed a complaint in District Court requesting declaratory judgment that the location of the OK Corral Bar did not violate local zoning ordinances. The appeal to STAB was stayed pending decision by the District Court. On November 2, 1984, the District Court entered judgment finding that the use of the OK Corral Bar as a licensed alcoholic beverage establishment was a legal, nonconforming use at its present location. The court ordered STAB to remand Christopherson’s appeal to DOR for further proceedings consistent with the court’s opinion.

In compliance with the District Court order, DOR granted Christopherson’s license transfer application on November 26, 1984. Leo Might, a homeowner adjacent to the OK Corral Bar, appealed the DOR decision to STAB. Christopherson filed an application for alternative writ of mandamus and/or prohibition in District Court on January 18, 1985, requesting that the court order STAB to deny Might’s appeal and affirm issuance of the liquor license to Christopherson. The District Court granted the writ compelling STAB to deny Might’s appeal, but subsequently stayed the order following STAB’s motion to quash the alternative writ. Might filed a motion to intervene in District Court which was granted May 9, 1985.

On December 16,1985, the District Court entered its order denying Christopherson’s application for alternative writ of mandamus and/ or prohibition, dismissing Might’s amended complaint in intervention and requiring each party to pay their own attorney’s fees. On December 27, 1985, Might filed a motion to alter or amend judgment and noticed the matter for hearing January 17, 1986. The day prior to hearing, Christopherson appealed the May 9, 1985, and December 16, 1985, District Court orders to this Court. We dismissed the appeal by order dated April 14, 1986, finding it premature due to Might’s pending motion to alter or amend judgment.

Following dismissal of Christopherson’s appeal the District Court heard the parties’ arguments concerning Might’s motion to alter or amend judgment. On May 14, 1986, the District Court amended judgment to award Might attorney’s fees and costs incurred due to Christopherson’s untimely appeal to this Court.

Meanwhile, on January 13, 1986, STAB dismissed Might’s appeal of the DOR decision granting the license transfer to Christopherson. STAB determined that the 1985 amendment of Section 16-4-411, MCA, deprived it of jurisdiction to hear Might’s appeal and placed jurisdiction with district court. Might petitioned District Court on February 11, 1986, appealing the STAB order as well as the DOR license transfer to Christopherson. On November 10, 1986, the District Court entered its order finding the 1985 amendments to Section 16-4-411, MCA, did not retroactively apply to Might’s appeal before STAB, and ordered STAB to hear Might’s appeal.

Christopherson appeals and raises the following issues:

1) Whether Might has standing to appear in Christopherson’s mandamus action and to pursue appeal to STAB?

2) Whether the District Court erred in dismissing Christopherson’s application for alternative writ of mandamus and/or prohibition?

3) Whether the District Court erred in awarding Might partial attorney’s fees and costs and denying award of attorney’s fees and costs to Christopherson?

Christopherson contends Might had no standing to intervene in District Court in the mandamus action nor was he an interested party with a right to appeal the DOR decision to STAB. We disagree.

Might filed a motion to intervene April 3, 1985, in District Court pursuant to Rule 24, M.R.Civ.P. Christopherson objected to Might’s intervention as untimely because Might did not appeal the April 12, 1984, decision by DOR nor did he appear in Christopherson’s initial action in District Court. The District Court granted Might’s motion to intervene finding that it was the modified DOR decision entered November 16, 1984, which gave Might a basis for appeal. The April 12, 1984, DOR decision supported Might’s position and provided no reason for him to appeal. Might appealed the modified DOR decision to STAB within 30 days of his receipt of the order pursuant to Section 15-2-302(2), MCA. Might’s appeal to STAB was stayed due to Christopherson’s application for writ of mandamus and/or prohibition before the District Court.

Section 16-4-411, MCA, permits any “interested party” to appeal a DOR decision concerning liquor license issuance, transfer, suspension or revocation. Might lives adjacent to the OK Corral Bar and objects to continued operation of a bar at that location. At the initial DOR hearing concerning Christopherson’s application for liquor license transfer Might appeared as a protestor. We find Might’s opposition to the liquor license transfer and his residence adjacent to the bar give him standing as an interested party within the meaning of Section 16-4-411, MCA.

The District Court acted properly in permitting Might to intervene in Christopherson’s mandamus action. Rule 24(a), M.R.Civ.P. provides:

“Rule 24(a), Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Christopherson requested the District Court to order DOR and STAB to issue a liquor license to himself. Might’s appeal before STAB concerned the same issue. It is clear Might’s motion to intervene falls within Rule 24(a)(2), M.R.Civ.P., because an order by the District Court granting Christopherson’s application for writ of mandamus and/or prohibition would have barred Might’s appeal to STAB. This Court has previously held that a person having an interest in the subject matter of a mandamus action may be permitted to intervene for the purposes of resisting the granting of the writ. State ex rel. Miles City v. Northern Pacific Railway Co. (1930), 88 Mont. 529, 295 P. 257.

The second issue on appeal is whether the District Court properly denied Christopherson’s application for alternative writ of mandamus and/or prohibition. The District Court found that Christopherson had a plain, adequate and speedy remedy in the ordinary course of law pursuant to Section 16-4-411, MCA, and that there had been no showing that DOR and STAB had failed to perform an act required by law. There is substantial credible evidence in the record supporting the court’s dismissal of Christopherson’s mandamus action.

Christopherson argues on appeal that his mandamus action was actually a direct appeal to District Court as provided for in the Montana Administrative Procedure Act. However, the record shows Christopherson’s complaint was an application for alternative writ of mandamus and/or prohibition. The District Court order dated December 16, 1985, dismissed Christopherson’s application for failure to establish that mandamus was proper. Our review is confined solely to whether the District Court properly dismissed the mandamus action and we will not address Christopherson’s arguments raised pursuant to MAPA.

Section 27-26-102, MCA, provides that a writ of mandamus may be issued to compel performance of a duty required by law and the writ must be issued where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Section 27-27-102, MCA, provides that a writ of prohibition may be issued where there is not a plain, speedy, and adequate remedy in the ordinary course of law. We agree with the District Court that Christopherson has failed to exhaust his administrative remedies nor has he shown that DOR and STAB are acting contrary to law.

DOR issued a modified decision November 26, 1984, granting a liquor license transfer to Christopherson in compliance with the November 2, 1984, declaratory judgment of the District Court. Might appealed DOR’s modified decision to STAB pursuant to Section 16-4-411, MCA (1983). Jurisdiction to hear Might’s appeal is vested within STAB and Christopherson is not entitled to short circuit Might’s statutory right to appeal by means of a mandamus or prohibition action. A writ of prohibition will lie only to restrain activities in excess of jurisdiction, and only when there is no plain, speedy, adequate remedy of law. State ex rel. Fulton v. District Court (1961), 139 Mont. 573, 366 P.2d 435.

The final issue is whether the District Court erred in awarding partial attorney’s fees to Might and denying award of attorney’s fees to Christopherson. The court awarded to Might attorney’s fees and costs incurred due to Christopherson’s untimely appeal to this Court. The District Court found Christopherson’s notice of appeal filed the day before hearing on Might’s motion to amend judgment was intended to interfere with consideration of Might’s motion.

We find no abuse of discretion by the District Court in awarding partial attorney’s fees and costs to Might. Christopherson’s appeal to this Court was untimely and caused expense and delay to Might. The District Court concluded that pursuant to Section 27-26-402, MCA, and its inherent equitable powers it had the power to assess attorney’s fees to Might. We find the award to Might is supported by the record and was within the equity powers of the District Court. We will not overturn such an award absent a showing of abuse of discretion. State ex rel. Wilson v. Dept. of Natural Resources (Mont. 1982), 199 Mont. 189, 648 P.2d 766, 39 St.Rep. 1294.

Christopherson’s contention that he is entitled to attorney’s fees must fail. Christopherson has not prevailed on any of the issues raised herein and has presented no grounds for the award of attorney’s fees. The District Court’s denial of attorney’s fees and costs to Christopherson is affirmed.

The orders of the District Court appealed from are affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    JOHN A. STARK and Nadine A. Stark, husband and wife, Plaintiffs and Respondents, v. MAYNARD BORNER and Opal Borner, husband and wife, Defendants and Appellants.
    No. 86-396.
    Submitted on Briefs Feb. 19, 1987.
    Decided April 9, 1987.
    735 P.2d 314.

      Maynard and Opal Borner, pro se.
    Calton, Hamman, Calton & Wolff, Rodd A. Hamman, Billings, for respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Maynard and Opal Borner, husband and wife, appeal an August 12, 1986 preliminary injunction issued by the District Court of the Tenth Judicial District, Fergus County. We uphold the District Court’s preliminary injunction, but remand so that the court may conduct a hearing to consider whether its findings were proper in light of Sharbono v. Darden (Mont. 1986), [220 Mont. 320,] 715 P.2d 400, 43 St.Rep. 400 and other cases cited herein.

Maynard and Opal Borner entered a contract for deed in November, 1983, for the purchase of a 3,700 acre cattle ranch near Grass Range, Montana, from John and Nadine Stark. The purchase price for the place was $525,000. The Borners paid approximately $107,000 down on the contract and agreed to an annual payment of almost $40,000 until the full amount was paid. Annual payments were made in 1984 and 1985, but the Borners’ were unable to meet the obligation of the 1986 payment when it came due in January.

On January 23, 1986, the Starks sent the Borners a notice of default. When the Borners failed to cure the default within sixty (60) days, the Starks sent a notice of acceleration on March 26, 1986. The second sixty days expired May 26, 1986. In June, the Starks began moving their cattle onto the property, as well as cutting and baling the hay.

Although the parties discussed a rental arrangement and renegotiation of a new contract, no agreement was ever reached. The Borners had written a $1,000 check for pasture lease, but stopped payment on it when their attorney advised them that the Starks had no authority to be in possession.

On July 9, 1986, the Starks filed a complaint requesting that they be put in possession of the property, as well as that the Borners be enjoined from interfering with Stark’s possession, that the contract for deed be forfeited and that the Borners’ right, title, and interest in the property be terminated. The Starks also requested attorney’s fees.

After an August 12, 1986 hearing, the District Court made the following findings: 1) that the Borners had not made the land contract payment due Starks, 2) that all contract terms had been complied with by Starks, 3) and that the Starks had demonstrated a strong chance of prevailing on the merits of the suit. For these and other reasons, the District Court found that injunctive relief restraining the Borners from interfering with the Stark’s repossession of the property was appropriate and ordered the Borners to vacate the ranch by September 6, 1986.

On September 5, 1986, the Borners filed an emergency application to this court for a stay of the District Court’s order granting the preliminary injunction giving possession of the ranch premises to the Starks. This Court denied the Borners’ request, explaining that the questions and evidence presented by the Borners were considered and denied by the District Court and that the Borners failed to show a case for their emergency application.

The Borners now appeal, pro se, raising the following issues:

1. Whether the District Court was required to make a finding that the Starks would be irreparably harmed in order to issue the injunction.

2. Whether the District Court erred in choosing not to require a written undertaking.

3. Whether the District Court erred in finding that the Borners defaulted under the terms of the contract for deed.

4. Whether the District Court is properly providing the due process required for mortgage foreclosures.

The issues raised by the Borners are properly raised on appeal. Rule 1(b)(2) of the Montana Rules of Appellate Civil Procedure provides:

“(b) In civil cases a party aggrieved may appeal from a judgment or order, except when expressly made final by law, in the following cases:
“(2) from an order . . . granting or dissolving an injunction.”

The statute could not be clearer in providing for the Borners’ right to appeal the District Court’s issuance of the preliminary injunction.

As the Borners are representing themselves in this appeal it is understandable that they are unfamiliar with the laws concerning preliminary injunctions. Borners first contend that the District Court should not have granted the preliminary injunction because it failed to make a finding that the Starks would suffer irreparable injury if the injunction was not issued.

Section 27-19-201, MCA, provides that a preliminary injunction order may be granted in the following cases:

“(1) when it shall appear that the applicant is entitled to the relief demanded and such relief or any part thereof consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually;
“(2) when it shall appear that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant;
“(3) when it shall appear during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant’s rights, respecting the subject of the action, and tending to render the judgment ineffectual;
“(4) when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of this property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;
“(5) when it appears the applicant has suffered or may suffer physical abuse under the provision of 40-4-121.”

The District Court’s order granting the preliminary injunction stated:

“That it thus appears to the court that plaintiffs Stark have demonstrated a strong chance of prevailing on the merits herein, which under the contract includes right to possession, and that defendants should be temporarily restrained from interfering with that possession during the pendency of the suit.
“That it further appears defendants may be unable to respond in damages if plaintiffs prevail herein, which would render any substantial damage award plaintiffs may recover ineffectual and unrecoverable, and further that Starks’ damages from Borners’ continued possession of the lands while suit is pending would be quite difficult or impossible to accurately determine.”

It is apparent that the District Court granted the preliminary injunction pursuant to Section 27-19-201(1) and (3). Findings that satisfy the elements of subparagraph (2) are not also required.

The subsections are disjunctive, meaning that findings that satisfy one subsection are sufficient. All five subsections need not be satisfied for an injunction to issue. The District Court properly granted injunctive relief pursuant to Section 27-19-201(1) and (3).

Borners next content that the injunction is void because the District Court did not require Starks to post a written undertaking. Montana’s law regarding requirements of security for damages on granting an injunction is set out in Section 27-19-306(1), MCA, which states:

“27-19-306. Security for damages. (1) On granting an injunction or restraining order, the court or judge shall require a written undertaking to be given by the applicant, in such sum as the court considers proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. The undertaking may not be required in domestic disputes or when the state or a state agency, a county or subdivision thereof, or a municipal corporation is the party seeking the injunction or restraining order. In any case, the court in its discretion may waive the undertaking in the interest of justice. (Emphasis supplied.)”

The District Court may, in its discretion, waive the undertaking in the interest of justice. Although the District Court did not require a bond from the Starks, it protected the Borners’ interest by ordering the Starks to refrain from selling or encumbering the property (other than by a lease for less than a year); by ordering that the hay which had been cut, baled and stacked could not be sold or used by either party without court order or written agreement between the parties; and by ordering that the Borners could cut and sell the barley crop they had planted on 85 acres of the property. As we find no abuse of discretion, we uphold the District Court’s conclusions.

The Borners third argument is that the District Court granted the preliminary injunction before a finding was made that Borners were in default under their contract. This is not the case. The District court found that Borners were in breach and that Starks had complied with the terms of the contract in declaring a default:

“That the evidence clearly established that defendants Borner had not made the land contract payment due plaintiffs January 2, 1986, that plaintiffs have complied with the unambiguous terms of said contract in giving defendants written notice of default and also notice of acceleration of the contract balance, that defendants have not tendered the full principal and interest due and are in breach of their contract of purchase of the premises involved.”

There is no indication in these findings or in the arguments made by the Borners that the District Court abused its discretion or had insufficient evidence to conclude that the Borners were in default. The District Court’s order granting preliminary injunction was proper.

The final assertion made by Borners is that the District Court improperly “ousted” them from the property because it did not provide them the due process required for mortgage foreclosures. They argue that the Starks have not proven in court that forfeiture is Stark’s proper remedy, and that they, Borners, have not been given full opportunity to present the merits of their case.

The District Court’s issuance of the preliminary injunction was not a final adjudication. The injunction was used as an interlocutory procedural device to protect the subject of the controversy until a final determination could be reached by the court. The Borners’ due process protections have not been violated insofar as the grant of the preliminary injunction is concerned.

This Court is concerned, however, about the lack of any findings regarding the sellers’ ability to convey title after they accelerated payment. The established rule of law is that a vendor cannot, while unable to tender good title, enforce a forfeiture provision of a contract on default of the vendee. Silfvast v. Asplund (1933), 93 Mont. 584, 20 P.2d 631. Wells Fargo and Company v. Page (1905), 48 Or. 74, 82 P. 856; Sievers v. Brown (1899), 34 Or. 454, 56 P. 171.

“. . . the mere failure of the purchasers to make the deferred payments did not ipso facto entail a forfeiture of their rights under the contract, and, when the vendor elected to give the notice which would effect that result, the forfeiture could only be declared if, at the time she demanded final payment, she could convey marketable title. (Citations omitted.)”

Silfvast v. Asplund, 93 Mont. at 595, 20 P.2d at 636.

This rule was enunciated most recently in Sharbono v. Darden (Mont. 1986), [220 Mont. 320.] 715 P.2d 433, 43 St.Rep. 400, where we agreed with the Fourth Judicial District’s finding that the vendee’s “failure to make the balloon payment when due is excused by Sharbono’s [vendors] inability to convey title.” Sharbono v. Darden, [220 Mont. 320,] 715 P.2d 433, 43 St. Rep. at 404.

Therefore, this Court sustains the District Court’s issuance of the preliminary injunction pending the District Court’s determination on remand as to whether its findings were proper in light of the above cited cases.

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