text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. DAVID E. NELSON, Defendant and Appellant, THE STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES LAFLEY, RON WORDEN and JESSE EDWARDS, Defendants and Appellants.
    Nos. 94-517 and 95-212.
    Submitted January 11, 1996.
    Decided January 30, 1996.
    53 St.Rep. 50.
    275 Mont. 86.
    910 P.2d 247.

      For Appellants: William F. Hooks, State Appellate Defender, Helena (argued).
    For Respondent: Joseph P. Mazurek, Attorney General, Brenda Nordlund Assistant Attorney General, Helena (argued); Christopher G. Miller, Powell County Attorney, Deer Lodge; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Claiming violation of the Double Jeopardy Clauses of the Montana and United States Constitutions, David Nelson (Nelson) and Charles Lafley, Ronald Worden and Jesse Edwards (Lafley, Worden and Edwards) appeal the denial by the Third Judicial District Court, Powell County, of their respective motions to dismiss the informations filed against them and from their convictions for escape. Lafley, Worden and Edwards also appeal from their convictions of the added charge of unauthorized use of a motor vehicle. We affirm their respective convictions.

Additionally, Lafley, Worden and Edwards appeal the District Court’s sentences for felony escape under the provisions of § 45-7-306(3)(b)(i), MCA (1993). We reverse and remand for resentencing for misdemeanor escape under § 45-7-306(3)(c), MCA (1993).

Nelson’s case and the case involving Lafley, Worden and Edwards have been consolidated for purposes of this appeal. Where appropriate, we refer to Nelson, Lafley, Worden and Edwards, collectively, as Appellants.

We address the following issues on appeal:

1. Does the Double Jeopardy Clause of the federal or state constitution bar criminal prosecution for escape when an inmate defendant has already been subjected to forfeiture of good time credits in a prison disciplinary proceeding arising from the same incident?

2. Did the District Court properly sentence Lafley, Worden and Edwards pursuant to the felony escape provisions of § 45-7-306(3)(b)(i), MCA (1993), under the facts of this case?

BACKGROUND

Nelson, an inmate subject to official detention at the Montana State Prison (MSP) walked away from his temporary assignment at the Great Falls Pre-Release Center in October 1992. Following his apprehension in Billings in March 1994, Nelson was returned to MSP and, following prison disciplinary proceedings, suffered the forfeiture of 4 years, 11 months and 6 days accumulated good time and was placed in maximum security. Additionally, for that same incident, Nelson was charged with the offense of escape in violation of § 45-7-306, MCA (1991).

Following his conviction of that charge by entry of an Alford plea, Nelson was sentenced to three years imprisonment to run consecutively with his existing sentence. Prior to entry of his plea, Nelson moved to dismiss the criminal information filed against him on the basis that he had already been punished by the State for his escape through the MSP disciplinary proceedings and that subjecting him to additional punishment for the criminal charge of escape for the same incident violated the Double Jeopardy Clauses of the Montana and United States Constitutions. Nelson’s motion to dismiss was denied by the District Court.

Lafley, Worden and Edwards were also inmates subject to official detention at the MSP. On April 11,1994, the three were on daily work assignment at the Deer Lodge golf course and were directed to perform routine maintenance and groundskeeping. Because of their classification status as “trustees,” they were subject to “minimal, non-direct supervision” by a civilian employee of the golf course independent of the prison staff. They were at no time physically restrained with shackles, chains, etc.

Shortly after being given their work assignments, the three began drinking and became intoxicated. Around noon, they ran out of liquor, took the golf course-owned Ford Ranchero and departed for Helena to purchase more alcohol. They were observed by their civilian supervisor as he was returning to the golf course. He gave pursuit and reported their unauthorized departure to law enforcement authorities. The three were subsequently apprehended outside of Helena later that same afternoon.

As a result of their escapade, Lafley, Worden and Edwards each suffered disciplinary sanctions through the Department of Corrections institutional disciplinary committee for major rules violations including escape, theft and substance abuse. Lafley forfeited 7 years, 10 months, 3 days accumulated good time credits; Worden lost 7 years, 1 month, 29 days good time credits; and Edwards forfeited 1 year, 8 months, 7 days good time credits. Each man’s security classification was increased and each was referred to the Powell County Attorney for criminal prosecution.

The hearings officer justified the administrative sanctions on the basis that the conduct of the three inmates posed a serious threat to the institution and to society and violated state law. The warden, on denial of their administrative appeal, referred to the whole incident as being a serious violation of prison rules and the escape as being a very serious rule violation.

On April 14, 1994, the same date as the disciplinary proceedings, criminal informations were filed against Lafley, Worden and Edwards charging each with escape and felony theft (the latter charge being subsequently amended to unauthorized use of a motor vehicle, a misdemeanor, in violation of § 45-6-308, MCA.) Pretrial, each man moved to dismiss the criminal charges with prejudice on double jeopardy grounds, and after hearing and argument, the District Court denied these motions. The cases were consolidated for trial; the motions to dismiss were renewed and denied after the jury was sworn; and on November 1, 1994, each defendant was convicted by the jury of escape and unauthorized use of a motor vehicle.

In December 1994, Lafley, Worden and Edwards were each sentenced to three years in MSP for felony escape and six months in the Powell County jail for the unauthorized use of a motor vehicle. Those sentences were ordered to run concurrently but consecutively with each man’s existing sentence.

DISCUSSION

1.

Does the Double Jeopardy Clause of the federal or state constitution bar criminal prosecution for escape when an inmate defendant has already been subjected to forfeiture of good time credits in a prison disciplinary proceeding arising from the same incident?

This issue, while one of first impression in Montana, has been addressed in numerous other jurisdictions. The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper (1989), 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496 (citing North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65); see also, State v. Lindseth (1983), 203 Mont. 115, 659 P.2d 844. This clause has been made applicable to the states through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; State v. Cole (1987), 226 Mont. 377, 744 P.2d 526.

For purposes of this case, Appellants claim no greater protection from double jeopardy under the Montana Constitution, Article II, Section 25, than under the Fifth Amendment of the United States Constitution. Accordingly, we treat the protections from double jeopardy afforded under both our state and the federal constitutions as co-extensive and will simply refer to both clauses collectively in the singular.

Here, it is the multiple punishments prohibition of the Double Jeopardy Clause which is implicated. Neither party disputes that Appellants’ loss of good time and increase in security classification arose from the same incident and conduct which resulted in their criminal convictions and sentences for escape, and, in the case of Lafley, Worden and Edwards, for the additional conviction of unauthorized use of a motor vehicle. While the focus of Appellants’ argument is not on the increase in their security classifications, they do nevertheless contend that, having suffered the administrative forfeiture of their accumulated good time credits, their criminal convictions and sentences constitute multiple punishments for the same offense in violation of the Double J eopardy Clause. We disagree.

Historically, the protection from double jeopardy was thought to arise only in the context of criminal cases. See, e.g., Helvering v. Mitchell (1938), 303 U.S. 391, 58 S.Ct.630, 82 L.Ed 917; United States ex rel. Marcus v. Hess (1943), 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443; Rex Trailer Co. v. United States (1956), 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed 149. The U.S. Supreme Court disabused this notion, however, in Halper, wherein the Court held that a civil penalty is “punishment” for double jeopardy purposes if it “cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes.” Halper, 490 U.S. at 448, 109 S.Ct. at 1902. See also, Austin v. United States (1993), _ U.S. _, 113 S.Ct. 2801, 2806, 2810, n. 12, 125 L.Ed.2d 488, 503, 505, an Eighth Amendment, Excessive Fines Clause case and Department of Revenue of Montana v. Kurth Ranch (1994), _ U.S. _, 114 S.Ct. 1937, 1944-45, 128 L.Ed.2d 767, 778, a Fifth Amendment case, both of which cited Halper with approval for this same proposition. As the Court stated hi Kurth, citing Halper, “[a] defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed against him for the same offense in a separate proceeding.” Kurth, _ U.S. at _, 114 S.Ct. at 1945.

Notwithstanding Halper and its progeny, however, courts in both state and federal jurisdictions have uniformly rejected its application and rationale in the context of prison disciplinary proceedings. Typically, both state and federal jurisdictions have held that prison disciplinary proceedings are remedial in nature and present no impediment to subsequent criminal proceedings involving the same conduct. See, e.g., United States v. Brown (9th Cir. 1995), 59 F.3d 102, 104-05 (loss of good time; transfer to a higher security institution); United States v. Hernandez-Fundora (2d Cir. 1995), 58 F.3d 802, 807 (disciplinary segregation); State v. Lynch (Neb. 1995), 533 N.W.2d 905, 911 (loss of good time and disciplinary segregation); Garrity v. Fiedler (7th Cir. 1994), 41 F.3d 1150, 1153, cert. denied (1995), _ U.S. _, 115 S.Ct. 1420, 131 L.Ed.2d 303 (segregation and extension of mandatory release date); People v. Watson (Colo.Ct.App. 1994), 892 P.2d 388, 390 (loss of good time, transfer and segregation); Wild v. Commonwealth. (Va.Ct.App. 1994), 446 S.E.2d 626, 627 (isolation and loss of good time); State v. Walker (Conn.App.Ct. 1994), 646 A.2d 209, 212 (punitive segregation and confinement to quarters); United States v. Newby (3d Cir. 1993), 11 F.3d 1143, 1145-46, cert. denied (1994), _ U.S. _, 114 S.Ct. 1841, 128 L.Ed.2d 468 (loss of good time, transfer and segregation); State v. Fonder (Wis.Ct.App. 1991), 469 N.W.2d 922, 925 (segregation and extension of mandatory release date). As the court in Hernandez-Fundora stated:

[T]he mere fact that a sanction imposed by prison officials has a punitive component does not mean that the sanction constitutes “punishment” for double jeopardy purposes.

Hernandez-Fundora, 58 F.3d at 806.

While candidly acknowledging this line of decisional authority, Appellants nevertheless contend that in Montana a different rule obtains. Appellants cite § 53-30-105, MCA (1993), and argue, on the basis of the language of this statute, that in this State the forfeiture of an escapee’s accumulated good time credits is expressly declared to be “punishment” and that prison disciplinary sanctions are punitive in nature and purpose. Further supporting this interpretation, Lafley, Worden and Edwards refer to the remarks of the hearings officer and warden in justification of the administrative sanctions imposed in their cases.

Section 53-30-105, MCA (1993), in pertinent part, provides:

(2) In the event of an attempted escape by an inmate or a violation of the rules prescribed by the department or warden, the inmate may be punished by the forfeiture of part or all good time allowances. ...Any punishment by forfeiture of good time allowance must be approved by the department. [Emphasis added.]

Appellants contend that this statute sets Montana prison disciplinary cases apart from the majority position; that because of the language of this statute, such proceedings constitute “punishment;” and that, as a result, the protections of the Double Jeopardy Clause are implicated.

We agree that if, in the prison setting, the state’s remedial interest in maintaining order and security, preventing violent altercations among the criminal population, encouraging compliance with prison rules and regulations and providing a prompt mechanism for carrying out those goals, was to be the focus of § 53-30-105(2), MCA (1993), then the existing statutory language ill serves the expression of that purpose and intent. We note that the existing language chosen by the legislature pre-dates Halper. Additionally, we recognize that Halper emphasized that the labels affixed to the proceeding or relief imposed are neither controlling nor of paramount importance. Halper, 490 U.S. at 447-48. See also, Austin, _ U.S. at _, 113 S.Ct. at 2806; Kurth, _ U.S. at _, 114 S.Ct. at 1945, n. 15. Nevertheless, we decline to read into § 53-30-105(2), MCA (1993), some broad remedial purpose that its plain language does not support. Section 1-2-101, MCA. If remediation is the intent of the legislature in forfeiting good time for escape, then the statute should be amended accordingly.

That does not end our analysis, however. Even under § 53-30-105(2), MCA (1993), as written, we conclude that the prohibition against double jeopardy does not bar criminal prosecution for conduct that has been the subject of prior administrative disciplinary proceedings at the prison. Rather, we hold that even if such administrative sanctions are deemed to be “punishment,” they are integral parts of and indistinct from the inmate’s single punishment of incarceration for his prior conviction.

At the outset, we note that the granting of good time credits is “conditioned upon the inmate’s good behavior and compliance with the rules made by the department or warden.” Section 53-30-105(1), MCA (1993). Moreover, while providing that forfeiture of good time is a “punishment,” § 50-30-105(4), MCA (1993), allows previously forfeited good time to be restored as a result of subsequent good behavior. In other words, good time is a reward for good behavior and its accrual is conditioned upon the continuation of the inmate’s good behavior. If that condition precedent is not fulfilled and the prisoner’s good time is forfeited, his term of imprisonment is no different than what was pronounced in his original sentence. Thus, the withholding of the contingent reward of good time cannot be “punishment” for double jeopardy purposes.

This rationale has been previously adopted in the Ninth Circuit. In United States v. Soto-Olivas (9th Cir. 1995), 44 F.3d 788, cert. denied (1995), _ U.S. _, 115 S.Ct. 2289, 132 L.Ed.2d 290, the court held that since the revocation of parole or probation is part of the original sentence, and since the continuation of parole or probation is conditioned on compliance with stated conditions, revocation of parole or probation is regarded as reinstatement of the sentence for the underlying crime and not punishment for the conduct leading to the revocation. See Soto-Olivas, 44 F.3d at 789, 791.

Similarly, in United States v. Brown (9th Cir. 1995), 59 F.3d 102, citing Soto-Olivas, the court reasoned that compliance with the conditions for awarding good time credit is one of the terms of the original sentence. “Withholding such credits, even if ‘punitive,’ does not alter the original sentence, it only means the prisoner must serve a larger part of that sentence in prison.” Brown, 59 F.3d at 105.

The same result obtains here. Even if Appellants’ good time is forfeited for punitive reasons, their original sentences are not extended. While they may be required to serve a larger portion of their original sentences in prison (assuming that their forfeited good time is not restored for subsequent good behavior), they are not being “punished” for double jeopardy purposes because the “punishment” to which they are subjected administratively is a consequence of their underlying prior convictions that resulted in their incarceration and not as a result of the rule violations or escape attempt that led to the disciplinary action itself.

Accordingly, we hold that under § 53-30-105(2), MCA (1993), the multiple punishments prohibition of the Double Jeopardy Clause does not bar criminal prosecution for escape when an inmate defendant already has been subjected to forfeiture of all good time credits in prison disciplinary proceedings arising from the same incident.

2.

Did the District Court properly sentence Lafley, Worden and Edwards pursuant to the felony escape provisions of § 45-7-306(3)(b)(i), MCA (1993), under the facts of this case?

Lafley, Worden and Edwards contend that, in light of the facts established at trial, the District Court could only have sentenced them for misdemeanor escape and that the imposition of a felony sentence in each of their cases was error. We agree.

Section 45-7-306(3), MCA (1993), provides:

(3) A person convicted of the offense of escape shall be:
(a) imprisoned in the state prison for a term not to exceed 20 years if he escapes from or while in transit to or from a state prison, county jail, city jail, community corrections facility or program, or supervised release program by the use or threat of force, physical violence, weapon, or simulated weapon;
(b) imprisoned in the state prison for a term not to exceed 10 years if he:
(i) has been charged with or convicted of a felony and escapes from or while in transit to or from a state prison, county jail, city jail, halfway house, life skills center, community corrections facility or program, or supervised release program; or
(ii) escapes from or while in transit to or from another official detention by the use or threat of force, physical violence, weapon, or simulated weapon; or
(c) fined not to exceed $500 or imprisoned in the county jail for a term not to exceed 6 months, or both, if he commits escape, including escape while in transit to or from official detention, under circumstances other than (a) and (b) of this subsection.

Here, the evidence precludes application of either § 45-7-306(3)(a) or (b)(ii), MCA (1993), since the use or threat of force, physical violence, or weapons, real or simulated, was not involved in the three inmates’ escape. Since the District Court sentenced each defendant for felony escape, necessarily the only other subsection of § 45-7-306(3), MCA (1993), available was (b)(i). Sentencing under that provision, however, requires that the person convicted escape “from or while in transit to or from” the various institutions and facilities listed.

The facts established at trial clearly indicate that Lafley’s, Worden’s and Edwards’ escape occurred while they were on daily work assignment at the Deer Lodge golf course. At the time of the crime, they were not at any one of the institutions or facilities listed in the statute, nor were they “in transit” to or from one of those institutions or facilities.

Notwithstanding the clear and unambiguous language of the statute, the State nevertheless argues that we should not apply the statute literally, but should liberally construe the phrase “while in transit to or from” to describe “both the actual conveyance of inmates to and from the state prison at the beginning and end of each work day and the degree of custody to which they are subject while at work.” To do otherwise, according to the State, will defy common sense and necessitate the legislature once again amending the statute as it did in response to our prior narrow and literal interpretations of the statutory language at issue in State v. Whiteshield (1980), 185 Mont. 208, 605 P.2d 189 (rejecting the argument that escape from a furlough was the same as escape from the state prison); State v. Savaria (1990), 245 Mont. 224, 800 P.2d 696 (rejecting the argument that escape from the “county jail” encompassed defendant’s escape from the courthouse following his appearance at a sentencing proceeding). See also, State v. Kyle (1980), 189 Mont. 38, 614 P.2d 1059, which prompted the legislature to amend the statute to codify our decision and include supervised release programs within the felony escape statute. We decline the State’s invitation to insert into the statute that which has been omitted by the legislature. Section 1-2-101, MCA.

In the first place, the language which the legislature chose in defining felony escape under § 45-7-306(3)(b)(i), MCA (1993), is clear and unambiguous. We are simply not going to torture the phrase “in transit to or from” as the State suggests we should. Lafley, Worden and Edwards were not “in transit” to or from any state facility or institution when they escaped. They were at the Deer Lodge golf course.

Secondly, we do not assume, as the State apparently does, that the legislature would, in any event, consider an unrestrained inmate’s escape from a civilian-supervised work assignment outside the walls of the institution to pose the same sort of serious risk of harm and violence that is inherent in a prisoner’s escape from confinement and supervision by guards whose duty is to prevent escapes. See Whiteshield, 605 P.2d at 190-91; Kyle, 614 P.2d at 1060. Certainly, if the legislature deems the sorts of escapes at issue here to pose a serious risk of harm, it can amend the statute to accommodate that concern.

Accordingly, we hold that the District Court improperly sentenced Lafley, Worden and Edwards pursuant to the felony escape provisions of § 45-7-306(3)(b)(i), MCA (1993), under the facts of this case. We remand for resentencing under the misdemeanor escape provisions of § 45-7-306(3)(c), MCA (1993).

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    AUSTIN A. MALEK, Plaintiff and Appellant, v. JOE HANKINS, Defendant and Respondent.
    No. 95-104.
    Heard: December 14, 1995.
    Submitted December 19, 1995.
    Decided January 30, 1996.
    53 St.Rep. 55.
    275 Mont. 97.
    911 P.2d 1127.

      For Appellant: John E. Seidlitz, Jr., Great Falls.
    For Respondent: Charles R. Cashmore, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Austin A. Malek appeals a judgment of the Twelfth Judicial District Court, Chouteau County, which granted Joe Hankins’motion for summary judgment on this claim of negligence in the workplace. We affirm.

The issue is whether the District Court erred in ruling that Hankins, an employee of Malek, Inc., cannot be deprived of his co-employee immunity from suit by the corporation’s election not to provide workers’ compensation coverage for its officer and employee, Malek.

Austin Malek was a compensated director and officer (president) of Malek, Inc. Joe Hankins was an employee of the corporation. In March of 1990, Hankins, while acting within the course and scope of his employment, unintentionally caused injury to Malek. Hankins was covered by workers’ compensation insurance through his employment with Malek, Inc. The corporation had properly and effectively elected not to cover corporate officer Malek under the Workers’ Compensation Act, pursuant to § 39-71-401(4)(a), MCA (1989).

In March of 1993, Malek brought this negligence action against Hankins. Hankins moved for summary judgment, relying on the principle of exclusivity under the Workers’ Compensation Act as a bar to Malek’s claim. After briefing and a hearing, the District Court entered judgment for Hankins. Malek appeals.

Did the District Court err in ruling that Hankins, an employee of Malek, Inc., cannot be deprived of his co-employee immunity from suit by the corporation’s election not to provide workers’ compensation coverage for its officer and employee Malek?

This Court’s standard of review of a summary judgment is the same as that used by the trial court in ruling upon the motion for summary judgment — that is, summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R; Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), [274 Mont. 239], 907 P.2d 154.

Section 39-71-118(l)(a), MCA (1989), defines the term “employee” for purposes of the Workers’ Compensation Act as

each person ... who is in the service of an employer .... The term includes ... all of the elected and appointed... officers and members of boards of directors of... private corporations ... while rendering actual service for such corporations for pay.

Hankins was clearly an employee under the statute. Malek, too, was a statutory “employee,” as an officer of a private corporation rendering services to the corporation for pay.

Hankins and Malek, as employees of the same employer, were co-employees. This Court has recognized that co-employees are immune from suit in cases in which the Workers’ Compensation Act applies. See, Forrester v. Kuck (1978), 177 Mont. 44, 579 P.2d 756; State ex rel. Fergusen v. District Court (1974), 164 Mont. 84, 519 P.2d 151; Madison v. Pierce (1970), 156 Mont. 209, 478 P.2d 860. Malek infers that when an election has been made not to cover an officer and employee under workers’ compensation, a co-employee is not immune from suit for injury to the officer and employee.

Malek also relies upon this Court’s opinion in Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499. In Shea, both the employer and the employee had elected workers’ compensation coverage under the statutes then in effect. The issue before the Court was the constitutionality of closing the courts to injured workers who had chosen to become subject to the workers’ compensation statutes. This Court stated:

[W]hen an employee has elected to become subject to the provision of the act, he may not thereafter prosecute an action for damages against the employer for an injury suffered by him during the course of his employment].]

Shea, 179 P. at 502. Malek infers from this language that if an election has been made under the Act to reject coverage for an officer and employee, then that officer and employee retains the right to sue a negligent co-employee for damages.

Malek’s inferences are overbroad. His view would allow the voluntary choice by Malek, Inc., to forego workers’ compensation coverage of its employee Malek to adversely affect the rights and obligations of its non-officer employee Hankins, who must remain bound under the Act to his exclusive remedy. The law gave Hankins no voice in the choice to forego workers’ compensation coverage for Malek.

We cannot accept Malek’s view. As the District Court cogently stated:

It is undisputed that as part of his Workers’ Compensation coverage Hankins gave up his right to sue his employer. In exchange for this waiver of the right to sue his employer, Hankins is entitled to receive the benefits of the Workers’ Compensation Act. One of those benefits is immunity from lawsuits by co-employees injured in the course of employment.
[Malek’s] argument fails to recognize that [Hankins] is covered by the Act, does bear the burden [of waiver of the right to sue his employer], and is therefore entitled to the Act’s benefits, one of which is immunity from lawsuits by co-employees for work-related injuries.

We agree with the District Court. We conclude that the Workers’ Compensation Act provides immunity to a covered employee for work-related injuries to a co-employee, regardless of the employer’s election not to cover the injured co-employee under workers’ compensation.

The Supreme Court of Colorado considered an identical issue in Kelly v. Mile Hi Single Ply, Inc. (Colo. 1995), 890 P.2d 1161. Mile Hi had opted out of workers’ compensation coverage for Kelly, a corporate officer, as allowed under Colorado law. Kelly was injured in an automobile accident in which James, an employee of Mile Hi, was the driver. Kelly sued James and Mile Hi to recover damages for his injury.

As to James’ liability, the Supreme Court of Colorado reasoned: [I]t would be unjust to burden a co-employee with liability based on an officer’s election to reject coverage under the Act when the co-employee is covered by the Act, and his or her exclusive remedy for any work-related injuries is dictated by the Act.
We hold, therefore, that co-employees are immune from common law actions brought by an officer who has rejected coverage under the Act. Our decision to insulate co-employees from common law actions is based on the status of the defendant co-employee, and not on that of the rejecting officer. It makes no difference whether the employee bringing the action is covered by the Act or has rejected coverage, provided the co-employee’s exclusive remedies are found in the Act. To decide otherwise would require us to elevate the interests of the rejecting officer over those of a co-employee who has no knowledge or control over the rejecting officer’s decision, and moreover, receives no benefit from the rejection of coverage.

Kelly, 890 P.2d at 1165. We agree with the rationale set forth by the Supreme Court of Colorado.

Based upon the above considerations, we hold that the election by Malek, Inc., to opt out of workers’ compensation coverage for its corporate officer Malek did not affect Hankins’ co-employee immunity under the Workers’ Compensation Act. We therefore affirm the summary judgment entered by the District Court.

JUSTICES NELSON, GRAY, TRIEWEILER, LEAPHART, HUNT and ERDMANN concur.


author: JUSTICE NELSON

text:
    IN THE MATTER OF K.F.L. and N.L., Youths in need of care.
    No. 95-274.
    Submitted on Briefs December 14, 1995.
    Decided January 30, 1996.
    53 St.Rep. 57.
    275 Mont. 102.
    910 P.2d 241.
    For Appellant: Christopher Daly, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Barbara Harris, Assistant Attorney General, Helena; Robert Deschamps, III, Missoula County Attorney, Leslie Halligan, Deputy Missoula County Attorney, Missoula; Kathleen Foley, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

P.L., the mother of the children, appeals from the Findings of Fact, Conclusions of Law and Order of the District Court for the Fourth Judicial District, Missoula County, terminating her parental rights. We affirm.

The sole issue raised on appeal is:

Did the District Court err in terminating the parental rights of RL. as to her two oldest children, K.F.L. and N.L.?

Background Facts

K.F.L., born May 26,1988, was alleged to be a youth in need of care because of reports that she was not being cared for by P.L. These reports indicated that P.L. was drinking, that she would forget to feed K.F.L., that on at least two occasions she gave K.F.L. alcohol to drink, that she was engaging in sexual activities with juveniles in her home, and that she had been evicted from her home because she had too many disturbing visitors at night. For these reasons, the State filed a Petition for Temporary Investigative Authority and Protective Services in October 1989.

Prior to that time, P.L. had been charged with sexual intercourse without consent involving a 14-year-old boy, tampering with a witness, endangering the welfare of a child, and criminal trespass. The charges of witness tampering and endangering the welfare of a child were dropped in exchange for P.L.’s guilty plea and she was sentenced to ten years in prison. The sentence was suspended.

On April 3, 1990, the State filed a Petition for Temporary Custody of K.F.L. The District Court declared K.F.L. to be a youth in need of care and on August 8, 1990, the court granted temporary custody to the Department of Family Services (DFS) for one year. Asecond child, N.L., was born on November 16, 1990.

P.L. completed Phase I of a treatment plan and K.F.L. was returned to her care on March 14, 1991. However, by July 29, 1991, a social worker reported that Phase II of the treatment plan had not been completed in that P.L. and S W., P.L.’s husband at that time, were not maintaining the home or protecting KF.L. from abuse from others. The social worker also reported that P.L. and S.W. had not taken K.F.L. to a physician “in a timely way.” The State’s petition for an extension of temporary custody was granted. In March of 1992, a third child, A.W., was born.

In February 1993, S.W. was charged with incest and sexual intercourse without consent involving KF.L. He pleaded guilty to the incest charge and received a twenty-year sentence with fifteen years suspended. The charge of sexual intercourse without consent was dismissed.

On May 29, 1993, RL. allowed K.F.L. and N.L. to visit their maternal grandparents in Wyoming. At the end of their visit, the grandparents refused to return the children to P.L. In August 1993, P.L. moved the District Court to have K.F.L. and N.L. returned from Wyoming. The court granted her motion, however, the children’s return was delayed until after P.L. delivered her fourth child, D.W., in September 1993. Within two weeks, P.L. requested that K.F.L. and N.L. be returned to her parents in Wyoming. She also placed the two youngest children with a private foster home and admitted herself to the psychiatric unit at St. Patrick’s Hospital in Missoula for four days.

On December 9, 1993, P.L. again moved to have K.F.L. and N.L. returned to her. Following a hearing on January 3,1994, the District Court ordered that K.F.L. and N.L. remain in Wyoming with their maternal grandparents until further order of the court. Anew treatment plan was implemented in February 1994 involving P.L. and P.L.’s boyfriend.

On May 12, 1994, P.L.’s suspended sentence was revoked and she was ordered to serve the rest of her sentence in the Women’s Correctional Facility. Subsequently, the State filed a Petition for Permanent Legal Custody with Right to Consent to Adoption and Termination of Parental Rights alleging that P.L. had never completed the 1990 treatment plan, nor had she completed the current treatment plan.

After a hearing on November 1,1994, the District Court issued its Findings of Fact, Conclusions of Law and Order terminating P.L.’s parental rights to all four children. P.L. appeals this decision as to K.F.L. and N.L.

Standard of Review

The standard of review to be used in cases involving a youth in need of care and the termination of parental rights is whether the district court interpreted the law correctly and whether the district court’s findings of fact are clearly erroneous. Matter of J.J.G. (1994), 266 Mont. 274, 281, 880 P.2d 808, 812 (citing Matter of D.H. and F.H. (1994), 264 Mont. 521, 524-25, 872 P.2d 803, 805).

Discussion

Did the District Court err in terminating the parental rights of P.L. as to her two oldest children, K.F.L. and N.L.?

The District Court concluded that K.F.L. and N.L. were youths in need of care pursuant to § 41-3-102, MCA, that P.L. had not complied with the court-approved treatment plan, and that P.L.’s conduct or condition rendering her unfit was unlikely to change within a reasonable time. Based on these conclusions and pursuant to § 41-3-609(l)(c), MCA, the District Court ordered that RL.’s parental rights be terminated.

Section 41-3-609, MCA, lists the criteria the court must consider in terminating the parental rights of an individual. This statute provides, in part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time .... [Emphasis added.]

In its extensive findings and conclusions, the District Court determined that P.L. had not complied with the February 1994 treatment plan because she failed to provide suitable housing for the children, obtain either part-time or full-time employment, or maintain consistent contact with the children. The District Court concluded that the conduct or condition rendering P.L. unfit is unlikely to change within a reasonable time and that continuation of the parent-child relationship will likely result in continued abuse or neglect of the children. In making this determination, the District Court applied the factors set forth in § 41-3-609(2), MCA, to the facts in this case and concluded:

a. [P.L.’s] emotional or mental illness renders her unlikely to care for the ongoing physical, mental and emotional needs of the children within a reasonable time;
b. [her] excessive use of intoxicating liquor affects her ability to care and provide for the children;
c. [her] judicially ordered long-term confinement;
d. reasonable efforts by protective service agencies over the last six or seven years have been unable to rehabilitate her; and
e. [her] failure to contact her children regularly, her failure to complete the treatment plan ordered in January.

RL. contends that she was in substantial compliance with the treatment plan because she had completed seven of the nine requirements. She further contends that the State could have and should have adopted a treatment plan for her while she was incarcerated. P.L. has voluntarily taken advantage of several of the programs available to her in prison and she maintains that this negates the District Court’s determination that the conduct or condition rendering her unfit is unlikely to change within a reasonable time.

The State contends that P.L. did not substantially comply with the treatment plan. The two requirements of the plan that P.L. failed to complete, providing suitable housing for the children and obtaining employment, were basic requirements necessary to protect and care for her children. Because P.L. is incarcerated, these two requirements cannot be completed until she is released. Providing a treatment plan for P.L. while she is incarcerated would fail to address these two basic requirements.

Furthermore, § 41-3-609(4)(b), MCA, provides that a treatment plan is not required if “the parent is incarcerated for more than 1 year and a treatment plan is not practical considering the incarceration.” This section recognizes that a child may need help while a parent is incarcerated and that such help cannot be delayed pending the parent’s release. Matter of D.G. (1990), 244 Mont. 17, 21, 795 P.2d 489, 491. P.L. has had ample opportunity in the five years since the State first requested temporary investigative authority of K.F.L. to prove whether she is capable of properly caring for her children and she has failed to do so.

Contrary to P.L.’s assertions that her prior history should not have been considered by the District Court and that only her performance under the latest treatment plan is relevant, the State maintains, and we agree, that a complete history is relevant to the issue raised herein. The District Court did not err by basing its decision on the long history of neglect and abuse of K.F.L. and N.L.

The District Court was bound to give primary consideration to the physical, mental and emotional conditions and needs of the children. Section 41-3-609(3), MCA; In re Custody of T.M. (1994), 267 Mont. 75, 79, 881 P.2d 1333, 1336.

At the November 1, 1994 hearing, two social workers that had previously worked with P.L. recommended that P.L.’s parental rights be terminated as her ability to parent her children would not change within a reasonable time given her previous patterns of behavior. The State also presented two reports from KF.L.’s and N.L.’s therapist recommending that K.F.L. and N.L. be adopted by or permanently placed with their maternal grandparents.

We conclude that the District Court’s findings are supported by substantial evidence in the record and are, therefore, not clearly erroneous. Moreover, the District Court correctly applied § 41-3-609, MCA, in evaluating the evidence before it.

Accordingly, we hold that the District Court was correct in terminating the parental rights of RL.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAL KAPLAN, Defendant and Appellant.
    No. 95-305.
    Submitted on Briefs January 4, 1996.
    Decided January 30, 1996.
    53 St.Rep. 60.
    275 Mont. 108.
    910 P.2d 240.
    For Appellant: Douglas Anderson, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Kathy Seeley, Assistant Attorney General, Helena; Robert L. Deschamps III, Comity Attorney; Betty Wing, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Michal Kaplan was charged with seven counts of stalking, in violation of § 45-5-220, MCA, in the Fourth Judicial District Court, Missoula County. Pursuant to a stipulation between Kaplan and the prosecution, the court found Kaplan not guilty by reason of mental disease or defect. Kaplan appeals. We dismiss the appeal.

We find the following issue dispositive on appeal:

Whether Kaplan can appeal from a judgment finding her not guilty by reason of mental disease or defect.

On March 29, 1994, the Missoula County Attorney filed an information charging Kaplan with three counts of stalking in violation of § 45-5-220, MCA. On August 9, 1994, the county attorney filed another information charging Kaplan with an additional four counts of stalking. On November 18, 1994, the two causes of action were consolidated.

The stalking charges all arose from Kaplan’s repeated contact with her former martial arts instructor. Kaplan has a long history of mental illness and has been repeatedly institutionalized in both Alaska and Montana.

On December 19, 1994, Kaplan moved the District Court to dismiss the charges against her on the grounds that § 45-5-220, MCA, is unconstitutional. Following briefing, the court denied Kaplan’s motion.

On March 13, 1995, the parties stipulated that Kaplan should be found not guilty by reason of mental disease of defect. Pursuant to the parties’ stipulation, the court found Kaplan not guilty by reason of mental disease or defect. Kaplan was committed to the custody of the Superintendent of the Montana State Hospital. Kaplan now appeals the denial of her motion to dismiss.

Section 46-20-104, MCA, entitled “Scope of appeal by defendant,” reads, in part:

(1) An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which effect the substantial rights of the defendant. [Emphasis added.]

See also Rule 1(d), M.RApp.P. Kaplan was found not guilty of stalking by reason of mental disease or defect. Because Kaplan was not convicted, there is no judgment of conviction from which to appeal. The denial of her motion to dismiss, absent a judgment of conviction, is not itself an appealable order.

Montana statutes provide remedies and avenues of appeal for individuals who are committed following a finding that they suffer from a mental disease or defect. Sections 46-14-301 through -303, MCA, provide methods for individuals who have been found to suffer from a mental disease or defect to challenge such a finding. Appealing the constitutionality of the statute under which they were found not guilty is not an option.

We conclude that Kaplan cannot appeal from a judgment that she was not guilty by reason of mental disease or defect. We therefore dismiss her appeal.

JUSTICES GRAY, HUNT, LEAPHART and ERDMANN concur.


author: JUSTICE LEAPHART

text:
    INSURED TITLES, INC., now doing business as TRW, Plaintiff and Respondent, v. Lee McDonald, Defendant and Appellant.
    No. 95-099.
    Submitted on Briefs January 4, 1996.
    Decided January 30, 1996.
    53 St.Rep. 61.
    275 Mont. 111.
    911 P.2d 209.

      For Appellant; Nancy K. Moe; Ellingson & Moe, Missoula; Harold V. Dye; Dye Law Office, Missoula.
    For Respondent; Gregory W. Duncan; Harrison, Loendorf & Poston, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Lee McDonald appeals from the Opinion and Order of the Montana Fourth Judicial District Court, Missoula County, granting TRW’s motion for summary judgment determining that the exclusions to the title insurance policy applied. We affirm.

We consider the following issues on appeal:

1. Did the District Court err in granting TRW’s motion for summary judgment?

2. Did the District Court err in determining that Exclusion No. 1 eliminated coverage in light of this Court’s holding in McDonald v. Jones?

This is McDonald’s second appeal arising out of his interest in certain real property located in the Seeley Swan Valley. McDonald v. Jones (1993), 258 Mont. 211, 852 P.2d 588. Irene H. Jones owned 12.63 acres of land in the Seeley Swan Valley. In 1981, Jones conveyed two acres of her land to Ownership of America (Ownership). However, there was no agreement as to which two acres of the 12.63 acre tract were to be conveyed. On April 13, 1981, Jones executed a warranty deed conveying two acres to Ownership. The deed contained the following land description:

That portion of Lot numbered Seven (7) of Section Six (6) in Township Twenty (20) North of Range Sixteen (16) West of Montana Principal Meridian, Montana, lying West of Federal Aid Secondary 209 right-of-way and containing two acres more or less and further accurately described by plat on file with the party of the first part and party of the second part. Party of the first part herein reserves all minerals under the above description.

No plat was ever filed with the Missoula County Clerk and Recorder, and the Clerk’s office erroneously treated the conveyance as a transfer of the entire 12.63 acre tract. The Missoula County Treasurer changed the tax records upon recordation of the deed and sent all further tax notices for the entire 12.63 acre tract to Ownership. Ownership failed to pay any of the real property taxes. Consequently, on July 20, 1983, Missoula County took a tax sale certificate on the entire tract due to nonpayment of taxes. Jones received no notice of the pending tax sale. On August 13, 1985, prior to taking a tax deed to the entire tract, Missoula County assigned its interest in the tax certificate to McDonald for $738.92, which represented the unpaid taxes, interest and penalties. On April 28, 1986 and on May 5, 1986, McDonald published a notice for application for tax deed in the local newspaper. The notice contained the following legal description “[a]ll of Gov’t Lot 7 lying West of Federal Aid Secondary #209 R/W in SW4 (Plat E) of 6-20N-16W, M.P.M.” On August 27, 1986, the Missoula County Treasurer executed a tax deed to McDonald as grantee which contained the following legal description:

Book 163 page 228 SUID #1078409
Pt of Lot T W of R/W in SW 1/4 Plat E Section 6 Township 20 Range 16 12.63 Acres
That portion of Lot numbered Seven (7) of Section Six (6) in Township Twenty (20) North of Range Sixteen (16) West of Montana Principal Meridian, Montana, lying West of Federal Aid Secondary 209 Right-of-Way and containing two acres more or less and further accurately described by Plat on file with the party of the first part and party of the second part. Party of the first part herein reserves all minerals under the above description.

McDonald filed a Notice of Claim of Tax Title in the Missoula newspaper on August 25, 1986 and September 1, 1986. The legal description in this notice was the same as in the application for tax deed.

Ownership contacted McDonald and agreed to give him a quit claim deed to the property. McDonald prepared the quit claim deed and it contained a different legal description than that used in the warranty deed from Jones to Ownership. The deed McDonald prepared deleted all reference to the two acre limitation contained in the Jones to Ownership warranty deed and the word “all” was inserted at the beginning of the legal description. McDonald had actual notice of the two acre limitation contained in the Jones to Ownership deed but chose to ignore the limitation. McDonald obtained a policy of title insurance from Insured Titles (now TRW). Although TRW’s “chain of title sheet” references the Jones to Ownership two acre sale, the policy purported to cover the entire 12.63 acre tract. McDonald asserted that under the policy TRW was required to defend the entire 12.63 acre tract. In 1990, TRW filed a complaint against McDonald for declaratory judgment seeking to determine its duties under the title insurance policy. Motions for summary judgment were submitted by both McDonald and TRW. McDonald asserted that TRW had breached its title insurance policy and had acted in bad faith. TRW contended that it had satisfied its duties of defense and indemnity in negotiating a settlement in which it agreed to secure a two acre parcel for McDonald. At that time, however, the District Court did not rule on the motions due to the pending appeal to this Court in the underlying case of McDonald v. Jones. In McDonald v. Jones, McDonald was attempting to quiet title in the entire 12.63 acre parcel. The district court granted summary judgment in favor of Jones finding that the Jones to Ownership deed was void. McDonald was unsuccessful in his bid to quiet title in the 12.63 acre tract. We affirmed the district court’s determination that the Jones to Ownership deed was void and that McDonald was entitled to none of the property.

Following our opinion in McDonald, the District Court determined that the summary judgment motions were properly before the court and that judicial notice could be taken of the underlying case. The District Court determined that the exclusions of the title insurance policy applied and, further, that McDonald knowingly altered the legal description of the property thus defeating coverage under the policy. Pursuant to Rule 59, M.R.Civ.P, McDonald filed a motion to amend this ruling. Although the District Court ruled that the motion was time barred, the District Court addressed the merits of his argument. McDonald appeals from this determination. In his motion, McDonald asserted that the issue of whether TRW breached its duty to defend was not addressed in the District Court’s order. McDonald argued that TRW’s voluntary filing of a quiet title action against Jones acted as a judicial admission regarding TRW’s duty to defend. TRW countered that it undertook the quiet title action under a reservation of rights and, upon later investigation, determined that the policy exclusions had been triggered and, therefore, that TRW was justified in withdrawing from the quiet title action.

1. Did the District Court err in granting TRW’s motion for summary judgment?

In reviewing a district court’s grant of summary judgment we use the same criteria as that used by the district court; we are guided by Rule 56, M.R.Civ.P. Chilberg v. Rose (1995), [273 Mont. 414], 903 P.2d 1377, 1378-79 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as matter oflaw. Chilberg, 903 P.2d at 1378-79. In the instant case, the facts of this dispute regarding the transactions and the chain of title were fully resolved in the underlying case of McDonald v. Jones.

McDonald asserts that even assuming the District Court was correct in its determination regarding Exclusion No. 1 of the title insurance policy, which would exclude coverage because of the violation of the subdivision and platting act, genuine issues of material fact regarding TRW’s alleged breach of its independent duty to defend title should have precluded the grant of summary judgment. We note that if the asserted claim is not covered by the policy, then the insurer has no duty to defend the insured. City of Bozeman v. AIU Ins. Co. (1993), 262 Mont. 370, 376, 865 P.2d 268, 272-73; New Hampshire Ins. Group v. Strecker (1990), 244 Mont. 478, 480, 798 P.2d 130, 132. As McDonald himself points out, an insurer may step out of a suit once it clearly and unequivocally demonstrates that the plaintiff’s claim against the insured no longer falls within the policy’s coverage. Burns v. Underwriters Adjusting Co. (1988), 234 Mont. 508, 510, 765 P.2d 712, 713; Babcock & Wilcox Co. v. Parsons Corp. (8th Cir. 1970), 430 F.2d 531, 538. Further, TRW argues that the case does not involve a duty to defend, rather, it involves TRW’s prosecution of a quiet title action on McDonald’s behalf. We conclude that the District Court did not err in determining that by negotiating the two acre settlement with Jones, TRW had satisfied its obligations under the policy and that it did not breach its duties. McDonald himself altered the legal description of the property and that alteration was at the heart of this dispute. No material issues of fact existed, and the District Court was correct in concluding that TRW had satisfied its obligations under the policy.

2. Did the District Court err in determining that Exclusion No. 1 eliminated coverage in light of this Court’s holding in McDonald v. Jones?

In the underlying case of McDonald v. Jones, TRW provided counsel under a reservation of rights. Condition and stipulation 3(c) of the title insurance policy provided that TRW had the option to pay or otherwise settle any claim asserted against an insured. Based on its investigation, TRW concluded that, at most, McDonald was entitled to two acres. TRW presented McDonald with the offer of two acres, or the fair market value of the two acres. However, McDonald refused TRW’s offer. Once TRW tendered this offer and McDonald refused, TRW determined that it had satisfied its obligations under the policy.

After TRW determined that it had satisfied its obligations under the title insurance policy, TRW filed its declaratory judgment action seeking a determination that the exclusions to the policy had been triggered by McDonald’s conduct. McDonald asserts that Exclusion No. 1 was improperly invoked. Exclusion No. 1 of the policy excepted coverage for:

Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation.

As this Court noted in McDonald, in the Jones to Ownership conveyance a separation in ownership or a reduction in the dimensions or area of the land had occurred in violation of the Montana Subdivision and Platting Act. Thus, under Exclusion No. 1, a violation of the Montana Subdivision and Platting Act would be sufficient to defeat coverage under the policy.

Additionally, in its Opinion and Order the District Court stated that “all of these [exclusions and conditions], singularly or taken as a whole, are sufficient to invoke the exclusions to coverage under the policy.” Exclusion No. 3 of the policy excepted coverage for:

Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the company and not shown by the public records but known to the insured claimant either at date of policy or at the date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claimant to the company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to date of policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy.

The District Court concluded that “McDonald is not a bona fide purchaser for value. McDonald admits to having actual notice of the two acre limitation.... Furthermore, McDonald paid no consideration to Ownership of America in exchange for the quit claim deed.” Thus, as the District Court determined, even if Exclusion No. 1, which would exclude coverage because of the violation of the subdivision and platting act, were improperly invoked against McDonald, exclusion 3(b) applied because although the warranty deed was deficient in designating which two acres of the parcel were to be severed, the deed clearly put McDonald on notice of the two acre limitation. Further, the court noted that exclusion 3(a) applied because McDonald’s alteration of the legal description illustrated his knowledge of the discrepancy regarding the size of the parcel and demonstrated that the defect in the description was one “created, ... or agreed to by the insured claimant.”

Next, McDonald argues that the “independent concurrent cause” doctrine provides for coverage because this Court “invalidat[ed] the Jones-Ownership of America warranty deed on two independent grounds: uncertainty and violation of the Montana Subdivision and Platting Act.” McDonald asserts that where there are multiple possible grounds for coverage for a single happening, then coverage exists if any of the grounds are valid. However, the uncertainty that originated this dispute resulted from the failure to comply with the Montana Subdivision and Platting Act. Thus, the two causes are not independent causes, rather, they are interdependent causes. As the District Court noted, “the deeds were void due to operation of law, stemming from the initial failure to comply with the Montana Subdivision and Platting Act.”

Finally, McDonald asserts that Exclusion No. 1 conflicts with § 33-25-214, MCA, and that the “efficient proximate cause doctrine” provides for coverage. However, McDonald failed to properly raise these issues at the District Court. Issues not properly raised at the District Court will not be considered on appeal. Accordingly, we decline to address these issues for the first time on appeal. Marsh v. Overland (1995), [274 Mont. 21], 905 P.2d 1088, 1093 (citing Lane v. Smith (1992), 255 Mont. 218, 221, 841 P.2d 1143, 1145).

We hold that the District Court properly determined that there were no genuine issues of material fact and that TRW was entitled to judgment as a matter of law.

Affirmed.

JUSTICES GRAY, TRIEWEILER, HUNT and ERDMANN concur.


text:
    IN THE MATTER of the Suspension of the Driver’s License of JOHN D. BAUER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 95-319.
    Submitted on Briefs November 9, 1995.
    Decided January 30, 1996.
    53 St.Rep. 65.
    275 Mont. 119.
    910 P.2d 886.

      For Appellant: Bruce Becker, Livingston.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Helena; TaraDepuy, Park County Attorney, Kendra K. Anderson, Deputy Park County Attorney, Livingston.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant, John D. Bauer (Bauer), appeals the order of the District Court for the Sixth Judicial District, Park County, denying Bauer’s petition to reinstate his driver’s license and suspending Bauer’s driver’s license for 90 days. We affirm.

We address the following issue on appeal:

Did the arresting officer have reasonable grounds to believe that Bauer was driving under the influence of alcohol?

BACKGROUND

On January 14,1995, Park County Deputy Sheriff Steffins was on a routine patrol south of Livingston. At 2:34 a.m., he received a call to back up Livingston City Police Officer Brack. As Deputy Steffins headed north toward Livingston, he observed a unique, dark, 1964 Ford sedan also travelling toward Livingston. Deputy Steffins paced the car going 75-85 miles per hour. He noticed the car braking hard around the curves and observed the car swerve across the center line more than once. At the time, Deputy Steffins estimated his own rate of speed at about 90-95 miles per hour. Deputy Steffins testified that he would have stopped the 1964 Ford sedan immediately for investigation of a DUI if he had not been responding to a request for back up. He did however, radio dispatch to give a description of the car and report his observations.

As Deputy Steffins passed the vehicle, he noticed a male driver and a passenger in the front seat. Shortly after passing the vehicle, the dispatcher advised Deputy Steffins that he was no longer needed in Livingston to back up Officer Brack. At 2:36 a.m., Deputy Steffins pulled onto a Forest Service road to wait for the 1964 Ford sedan to pass. He saw headlights approach from the south, but the vehicle turned off of the highway. Deputy Steffins drove back to where he had last seen the vehicle, but could not find it. He notified the dispatcher that he was discontinuing his search and would return to his routine patrol in Livingston.

Between 2:46 and 2:54 a.m., Deputy Steffins responded to a shoplifting call and a domestic abuse call. While searching for one of the subjects involved in the domestic abuse, Deputy Steffins saw the unique, dark, 1964 Ford sedan. He pulled the vehicle over at 3:13 a.m., 38 minutes after he first saw the vehicle south of Livingston, and asked for registration, proof of insurance, and identification. Deputy Steffins asked Bauer, the car’s driver, why he had turned off the highway and where he had gone. Bauer responded that he had gone to an old gravel pit. Wffiile talking to Bauer, Deputy Steffins noticed a strong smell of alcohol on Bauer’s breath, that Bauer’s eyes were bloodshot and glassy, and that Bauer’s speech was very slow and deliberate.

Based on his observations of Bauer’s driving and his observations of Bauer’s condition, Deputy Steffins asked Bauer to perform some physical maneuvers. Bauer was not able to complete his ABC’s, showed no elliptical movement in the Romberg test, and could not stand on one leg past the count of ten.

At 3:19 a.m., Deputy Steffins placed Bauer under arrest for operating a motor vehicle while under the influence of alcohol. Deputy Steffins transported Bauer to the Park County jail and cited him for driving while under the influence of alcohol, night speeding, and not having proof of liability insurance. Deputy Steffins read Montana’s Implied Consent Law to Bauer, yet Bauer refused to submit to a breathalyzer test. Deputy Steffins issued Bauer a 72-hour driving permit and released him on bail.

On January 25, 1995, the Montana Department of Justice issued its order suspending Bauer’s driver’s license. Bauer filed a petition for reinstatement of his driver’s license on February 14,1995, which the District Court for the Sixth Judicial District, Park County, denied. Bauer appeals the suspension of his driver’s license and the District Court’s order denying his petition to reinstate his driver’s license.

DISCUSSION

Did the arresting officer have reasonable grounds to believe that Bauer was driving under the influence of alcohol?

Bauer contends that at the moment of the arrest, Deputy Steffins did not have probable cause to stop Bauer and therefore did not have reasonable grounds to believe that Bauer had been driving or was in physical control of a vehicle while under the influence of alcohol. Specifically, Bauer claims that § 61-8-402, MCA, the Implied Consent Law, requires an officer to have reasonable grounds to believe that a driver of a motor vehicle is under the influence of alcohol before he can legally stop the driver and require the driver to submit to a breathalyzer test. Moreover, Bauer claims that under § 61-8-403, MCA, a driver who refuses to take a breathalyzer test under the Implied Consent Law, can have his or her driving privileges restored where the officer did not have reasonable grounds to believe the accused was operating a motor vehicle under the influence of alcohol.

The standard of review of a district court’s findings of fact is whether the findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia Grain Intern. v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678). In Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287, we adopted a three-part test to determine if a finding of fact is clearly erroneous. If we determine that the finding is supported by substantial credible evidence and therefore meets the first prong of the test, the finding of fact is not clearly erroneous. We review conclusions of law to determine whether the district court’s conclusions were correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Title 61, chapter 8, part 4, MCA, covers driving under the influence of alcohol or drugs. Section 61-8-402, MCA, provides that any person who operates a motor vehicle on the ways of the state open to the public is deemed to have given consent to a chemical test to determine the alcoholic content of his or her blood. Aperson may refuse to submit to the chemical test, but if the person refuses to submit to the test, the arresting officer must seize his or her driver’s license. Specifically, § 61-8-402 and 403, MCA, provide as follows:

61-8-402. Blood, breath, or urine tests. (1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person’s blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two. The test or tests must be administered at the direction of a peace officer who has reasonable grounds to believe that the person has been driving or has been in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two. ... [Emphasis added.]
61-8-403. Right of appeal to court. (1) Within 30 days after notice of the right to a hearing has been given by a peace officer, a person may file a petition to challenge the license suspension or revocation ....
(4) (a) The court shall take testimony and examine the facts of the case, except that the issues are limited to whether:
(i) a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two;
(ii) the person was placed under arrest; and
(iii) the person refused to submit to the test or tests.
(b) The court shall determine whether the petitioner is entitled to a license or whether the petitioner’s license is subject to suspension or revocation.

In Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 841 P.2d 1137, we addressed the issue of whether there was sufficient evidence in the record to support the trial court’s conclusion that the arresting officer had reasonable grounds to suspect that the appellant had been driving under the influence of alcohol. In Jess, a witness followed the appellant for some distance and observed the appellant drive erratically and swerve across the center line. The witness notified the Columbus sheriff’s office of appellant’s driving and gave the officers the license plate number and a description of the vehicle. An officer from the dispatch station located the vehicle outside of a bar. When the officer found the appellant, the appellant had bloodshot eyes, slurred speech, and was staggering. Jess, 841 P.2d at 1141.

In Jess, the appellant claimed that the officers did not have the requisite particularized suspicion to investigate him. Thus, this Court analyzed the issue of whether the arresting officer had reasonable grounds to suspect that the appellant had been driving under the influence of alcohol in terms of whether the arresting officer had a particularized suspicion to warrant an investigatory stop. We noted that “[i]n determining whether an officer is justified in mating an investigatory stop, the State must prove the existence of a ‘particularized suspicion.’” Jess, 841 P.2d at 1140 (citing Matter of Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 712 P.2d 1338). We concluded that although the officers did not see the appellant driving, the witness’s information combined with the appellant’s condition created sufficient evidence that the officer had reasonable grounds to suspect the appellant had been driving under the influence of alcohol and had reasonable grounds to detain him. Jess, 841 P.2d at 1141. We note that “reasonable grounds” provided for in §§ 61-8-402 and 403, MCA, and discussed in Jess is really the same test as “particularized suspicion” provided for in § 46-5-401, MCA, and discussed in State v. Reynolds (1995), 272 Mont. 46, 47-50, 899 P.2d 540, 541-42.

We recently set forth an analysis of particularized suspicion for an investigative stop in Reynolds, 899 P.2d at 541-42. In Reynolds, we noted that the Montana Legislature amended § 46-5-401, MCA, the investigative stop statute, to comport with United States Supreme Court and Montana case law. Section 46-5-401, MCA, now supports an investigative stop on the basis that the arresting officer has a particularized suspicion that an offense has been committed. Section 46-5-401, MCA, provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. [Emphasis added.]

When a police officer seizes a person, such as in a brief investigatory stop, the Fourth Amendment right against unreasonable searches and seizures applies. Reynolds, 899 P.2d at 542 (citing Terry v. Ohio (1968), 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899). Recognizing that an investigatory stop must be justified by some objective manifestation that the person stopped is, has, or is about to be, engaged in criminal activity, the United States Supreme Court set forth, and this Court adopted, a two-part test to evaluate whether a police officer has sufficient cause to stop a person. United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628; State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296.

First, the state must show objective data from which an experienced officer can make certain inferences. Second, the state must show a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing. Gopher, 631 P.2d at 296. In Gopher, we held that a particularized suspicion existed to justify stopping a vehicle that slowly drove past and exhibited unusual curiosity in the crime scene.

In Reynolds, this Court noted that the issue of whether or not a particularized suspicion existed in order to justify an investigatory stop is factually driven. Reynolds, 899 P.2d at 543. For example, in Blake, we held that a petitioner’s exhibiting patterns consistent with a person driving while under the influence of alcohol by swerving into the other lane and driving in the vicinity of several bars at around 2:00 a.m., was sufficient to support a particularized suspicion that the petitioner may have been driving while under the influence of alcohol. Blake, 712 P.2d at 1341.

Similarly, in State v. Morsette (1982), 201 Mont. 233, 654 P.2d 503, the totality of the circumstances created a particularized suspicion justifying an investigatory stop. After being alerted that a nearby farm had been broken into, a neighbor saw an unfamiliar truck driving by the house very fast. Acting on the information from the neighbor, a deputy followed the tire tracks from the nearby farm to the truck that matched the neighbor’s description. Although the deputy did not see the truck commit any traffic violations, nor did the deputy stop the truck immediately after the farm had been broken into, we nonetheless held that the totality of the circumstances created a particularized suspicion. Morsette, 654 P.2d at 507.

When the totality of the circumstances does not create a particularized suspicion, we have held the investigatory stop to be unjustified. For example, in Grinde v. State (1991), 249 Mont. 77, 813 P.2d 473, we held that the squeal of tires alone did not justify an investigatory stop because the officer did not see any evidence of erratic driving. Similarly, in State v. Anderson (1993), 258 Mont. 510, 853 P.2d 1245, the facts were not sufficient for us to hold that there was a particularized suspicion warranting an investigative stop because the police had not seen the vehicle violate any traffic laws justifying a traffic stop.

In contrast, Deputy Steffins saw Bauer cross the center line and drive at a speed well over the speed limit. Pursuant to § 46-5-401, MCA, a peace officer may stop any vehicle observed in circumstances that create a particularized suspicion that the occupant in the vehicle has committed an offense. Clearly, observing the same dark, 1964 Ford sedan in Livingston that Deputy Steffins had seen crossing the center line, braking hard around corners, and speeding toward Livingston 38 minutes previously, suffices as a circumstance creating a particularized suspicion. The 38-minute time lapse did not vitiate Deputy Steffins’ reasonable suspicion given the circumstances of the unique car, the time of day, and the prior traffic violations. Therefore, we conclude that, under the totality of the circumstances, the facts in this case supported a particularized suspicion that Bauer had committed an offense.

If, after making a justified investigative stop, the police officer reasonably believed the driver to be under the influence of alcohol, he can make an arrest and require submission to a chemical test. Grinde, 813 P.2d at 476. In other words, “[a] founded suspicion to stop for investigative detention may ripen into probable cause to arrest through the occurrence of facts or incidents after the stop.” Jess, 841 P.2d at 1141. In Jess, we held that the arresting officers had probable cause to arrest the appellant based on their observations of appellant’s behavior, such as the appellant’s bloodshot eyes and slurred speech. Jess, 841 P.2d at 1141.

In the instant case, after stopping Bauer for an investigative stop, Deputy Steffins noticed the smell of alcohol on Bauer’s breath, noticed that Bauer’s eyes were bloodshot and glassy, and noticed that Bauer’s speech was slow and deliberate. These were reasonable grounds for Deputy Steffins to ask Bauer to submit to physical maneuvers. After Bauer was not able to perform the physical maneuvers, Deputy Steffins reasonably asked Bauer to take a breathalyzer test which Bauer refused to do. Pursuant to § 61-8-402(3), MCA, Deputy Steffins seized Bauer’s driver’s license. After considering the relevant factors in § 61-8-403, MCA, the District Court appropriately denied Bauer’s petition to reinstate his driver’s license. Accordingly, we conclude that substantial credible evidence supports the District Court’s decision to deny Bauer’s petition to reinstate his license.

Affirmed.

JUSTICES GRAY, HUNT, TRIEWEILER and LEAPHART concur.


author: JUSTICE ERDMANN JUSTICE TRIEWEILER

text:
    MARGUERITE BOLAND; THOMAS F. and RUTH CORBALLY; BRIAN BIRKENBUEL; HARRY and RUTH GARDNER; JEANNIE and WILLIAM JUPKA; MARY LAIRD; WINONA and HILMUTH KRUCKENBERG; MINNIE ISLER; EDWARD and SUZANNE MERLO; SUSAN BOLAND; RICHARD and DONNA OSWEILER; WILLIAM and CHARLENE KITTO; and BETTY McGAVIN, Plaintiffs and Appellants, v. CITY OF GREAT FALLS, MONTANA, Defendant and Respondent, and TOP GUN, INC., Intervenor/Defendant and Respondent.
    No. 95-285.
    Submitted on Briefs December 21, 1995.
    Decided February 2, 1996.
    53 St.Rep. 69.
    275 Mont. 128.
    910 P.2d 890.

      For Appellants: Marcia Birkenbuel, Attorney at Law, Great Falls.
    For Respondent: David V. Gliko, City Attorney, Great Falls.
    For Intervenor/Defendant and Respondent: J. Kim Schulke, Linnel, Newhall & Martin, Great Falls.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from an order issued by the Eighth Judicial District Court, Cascade County, granting defendants’ motions for summary judgment. We affirm.

The issue on appeal is whether the rezoning of a 12.9 acre area from “A” residence use to “C” residence use constitutes illegal spot zoning.

FACTS

At issue in this case are four city blocks in the Central Avenue Addition to the City of Great Falls (the Property). The Property was previously owned by the Sisters of Providence (the Sisters) who for many years had operated the St. Thomas Orphanage on the Property. Several years ago the structures were torn down and the Property became vacant, being used only for a baseball diamond on the southwest comer. The baseball facility has since been removed.

The Property is located in an area zoned as an “A” residence district for use by single family residences and other permitted uses. The Property, however, has never been used for single family residences. Adjacent to the Property is a park, the old east side fire station which is now a warehouse, and a water tower. There is also a church and a two-family dwelling unit in the adjacent area.

In 1992, James Benson entered into an agreement with the Sisters to purchase the Property in order to construct a condominium development. Benson submitted an application to the City-County Planning Board to change the zoning of the Property from “A” residence district, “A” area, to “C” residence district, “B” area, which would allow the condominium development. The Board held a hearing in February 1993. One written objection to the project was received within the time allotted. A number of people living near the Property appeared at the hearing and objected to the zone change. One property owner filed a letter and also spoke in support of the project. The Board recommended to the City Commission that the zone change be granted upon twelve conditions.

The City Commission set a hearing for April 6, 1993, to consider the adoption of Ordinance #2650. This ordinance would allow the rezoning based upon the conditions set by the Board. The public hearing was ultimately held on June 15, 1993. Ten people spoke in favor of the proposed zone change, while three people spoke in opposition. The Commission adopted the proposed ordinance subject to the completion of a zoning contract between Benson, the Sisters, and the City of Great Falls. Ultimately, the Commission approved the zoning contract and the condominium project.

On June 30, 1993, twenty-three residents of the adjoining area brought a declaratory judgment action seeking a determination that the rezoning action constituted illegal spot zoning and requesting that the Property be restored to its previous zoning classification. Plaintiffs and defendants filed motions for summary judgment. On May 4, 1995, the District Court granted defendants’ motions for summary judgment and from this plaintiffs appeal.

STANDARD OF REVIEW

Under Rule 56(c), M.R.Civ.P, summary judgment is proper if the record discloses no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Lutey Const. v. State (1993), 257 Mont. 387, 389, 851 P.2d 1037, 1038. The parties stipulated that no genuine issues of material fact exist in this case. The standard that this Court applies in reviewing a grant of summary judgment is the same as that initially utilized by the trial court under Rule 56, M.R.Civ.P. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894.

Since we are reviewing a discretionary exercise of the City’slegislative authority, we must decide whether the zoning ordinance in question bears a reasonable and not arbitrary relationship to a permissible state objective. Anderson Ins. v. City of Belgrade (1990), 246 Mont. 112, 119-20, 803 P.2d 648, 652-53 (citing Cutone v. Anaconda-Deer Lodge (1980), 187 Mont. 515, 524, 610 P.2d 691, 696-97).

DISCUSSION

Does rezoning of a 12.9 acre area from “A” residence use to “C” residence use constitute illegal spot zoning?

Local municipal governments in Montana are empowered to enact zoning ordinances restricting the use of property in their jurisdictional area. Section 76-2-301, MCA, states that:

For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town council or other legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lot that may be occupied; the size of yards, courts, and other open spaces; the density of population; and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.

A zoning ordinance enacted pursuant to this statute will be found to be a constitutional exercise of police power if it has a substantial bearing upon the public health, safety, morals or general welfare of the community. Anderson Ins., 803 P.2d at 650 (citing Freeman v. Board of Adjustment (1934), 97 Mont. 342, 352, 34 P.2d 534, 537).

The plaintiffs presented two separate issues on appeal.Their initial issue addresses whether the new zoning use is significantly different from the previous use, which is the first element of the “spot zoning” test. Their second issue addresses the second two elements of the “spot zoning” test. We will address both issues in the context of the “spot zoning” test previously adopted by this Court.

In Little v. Board of County Commissioners of Flathead County (1981), 193 Mont. 334, 631 P.2d 1282, we identified the following three factors that are generally present when illegal spot zoning occurs, which we restate as follows:

1. The requested use is significantly different from the prevailing use in the area.
2. The area in which the requested use is to apply is rather small, however, this factor is more concerned with the number of separate landowners benefited by the requested change than it is with the actual size of the area benefited.
3. The requested change is more in the nature of special legislation. In other words, it is designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public.

Little, 631 P.2d at 1289. We noted that the three factors are not mutually exclusive and cautioned that any definition of spot zoning must be flexible enough to cover the constantly changing circumstances under which the test may be applied. Little, 631 P.2d at 1289.

The plaintiffs contend that the City of Great Falls engaged in illegal spot zoning by singling out one small piece of property for a use that is significantly different from the surrounding area. The plaintiffs argue that the prevailing use in the area has been those uses allowed by the “A” residence zone which does not allow for multiple dwelling structures like those proposed by the condominium developer. Plaintiffs contend that if there is no significant difference between the types of dwelling units allowed in “A” zones and those allowed in “C” zones, there would be no need for designating distinct residence zones. Plaintiffs maintain there is a significant difference between a condominium development and a neighborhood of single family homes located on standard-sized city lots.

The City’s position is that the proposed “residential condominium” use is similar to the surrounding single family residential use and that the zoning contract entered into by the parties provides the necessary restrictions to insure compatibility. The City also notes that the “A” residence zone does permit “townhouses” as a conditional use and argues that townhouses are not significantly different in nature, density, and appearance from condominiums.

The proposed condominium project consists of single family attached units on the interior of the Property and single family detached units on the perimeter to act as a screen between the existing single family dwellings adj acent to the Property and the rezoned area. The City required the developer and the Sisters to enter into a zoning contract that included a number of restrictions in order to preserve the residential integrity of the Property. The requirement that the condominium units on the perimeter of the Property be single family detached units, along with the other restrictions required by the City, insure that the new development will be compatible with the surrounding area.

It should also be noted that despite the designation as an “A” residence district, the Property was originally used as the site for an orphanage and has never been used for single family residences. The old eastside fire station, now used as a warehouse, a water tower, a church and a two-family dwelling unit, none of which are single family residences, are located in the area adjacent to the Property.

While the maximum density level will be twenty-nine percent higher than if the Property were developed solely as single family detached residences, it is important to note that the “A” residence zone permits “townhouses” as a conditional use. In fact, the City determined that “[t]he exact project proposed for the Property could be built as a townhouse project by submitting an amended plat to cause lot lines to be located on the common walls of the attached single family dwelling units ....” Moreover, if townhouse units were built where the single family detached condominium units are proposed, the density level would be even higher than that contemplated by this zone change.

We conclude that the proposed condominium project is essentially residential in nature and not significantly different from the prevailing use in the area. Therefore, the first prong of the Little test is not satisfied.

Having made that determination, we now must determine whether it is necessary to proceed to the final two elements of the Little test. In explaining the test, we stated that “[i]f spot zoning is invalid, usually all three elements are present or, said another way, the three statements may merely be nuances of one another.” Little, 631 P.2d at 1289 (citing Hagman, Urban Planning and Land Development Control Law (1971) at 169). Since we held in Little that “usually” all three elements are required to establish illegal spot zoning, it is possible illegal spot zoning can occur in the absence of an element. We therefore find it necessary to examine the remaining elements of the test. Our review of the record reflects that the remaining elements of the Little test are not satisfied.

The second and third elements of the Little test must be analyzed together. The number of separate landowners affected by the rezoning relates directly to whether or not the rezoning constitutes special legislation in favor of only one person. Since none of the surrounding landowners have been granted permission to build condominiums on their property, plaintiffs argue that rezoning the Property benefits only the condominium developer. We determine that the plaintiffs’ viewpoint is too narrow in its scope.

We agree with the plaintiffs that the primary focus of the second and third Little factors is not the benefit resulting from the development of the Property, but rather the benefit to landowners as a result of the rezoning. However, we disagree with plaintiffs’ contention that only the condominium developer will benefit as a landowner from the zoning change.

Our review of the record indicates that the orphanage was razed on or about March 1983. After the building was razed, the Property was placed for sale and for approximately seven years prior to the proposed development the Sisters had received no serious offers to purchase the land. The Property has deteriorated over the years to the extent that it now contains a variety of nuisances and eyesores, including broken glass, animal excrement, noxious weeds, unkept and dead vegetation, unfilled basements, and abandoned boilers. The City offered testimony that the zoning change would increase the value and salability of the surrounding property by eliminating the existing blight resulting from the nonuse of the lots and by eliminating the uncertainty of the future use of the Property, thereby benefit-ting the surrounding neighborhood. We therefore agree with the District Court which found that the zoning change would benefit the adjacent property owners whose property values would tend to increase from the project development. Thus, rezoning the Property will directly benefit more landowners than merely the individual developer. We therefore conclude the zoning change is not in the nature of special legislation designed to benefit only one landowner.

Having concluded that the zoning change does not constitute spot zoning, we must now determine whether Ordinance #2650 bears a reasonable relationship to the advancement of the public health, safety, morals or general welfare of the community. Section 76-2-301, MCA; Anderson Ins., 803 P.2d at 652.

The City recognized the community’s need for adequate and affordable housing in its Mission and Goals Statement. As part of its comprehensive review of the zoning change request, the City Commission determined that rezoning the Property would address the community’s housing shortage, as well as provide a positive economic benefit to the community as a whole. The economic benefit extends not only to the developer but also to the Sisters, the construction companies and local labor force, the potential condominium purchasers, and the local taxing authorities. While the rezoning ordinance applies to a four square block area, the Commission examined a number of factors and determined that the rezoning benefits both directly and indirectly a significant number of landowners and has a substantial bearing on the general welfare of the community. Rezoning the Property to allow for the housing development is a reasonable exercise of the City’s legislative authority.

Furthermore, the Commission addressed the integrity of the surrounding area in attempting to meet its need for additional housing. The Commission determined that there were adequate public improvements, including transportation routes, water and sewer facilities, schools, and parks in the surrounding neighborhoods. The zoning contract regulates and restricts the development to prevent overcrowding, traffic and parking problems, and junk structure problems. After a full and complete review of the circumstances, the Commission determined that the rezoning ordinance encourages the most appropriate use of the land and should have a negligible effect on the balance of land uses in the area.

We have stated that:

The purpose of zoning is not to provide for the highest or best use of each particular lot or parcel of land within the zones or community, rather it is to benefit the community generally by the sensible planning of land uses taking into consideration the peculiar suitabilities and most appropriate use of land throughout the community.

Anderson Ins., 803 P.2d at 651 (citing Cutone, 610 P.2d at 694).

We conclude that the rezoning ordinance does not constitute illegal spot zoning and that the City acted in a reasonable manner and within its statutory power when it rezoned the Property. We hold that the District Court did not err in granting defendants’ motions for summary judgment, and therefore, affirm the District Court’s order.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and LEAPHART concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s conclusion and conclude that when the City of Great Falls rezoned a 12.9 acre area from “A” residence use to “C” residence use it engaged in classic spot zoning.

The majority opinion correctly sets forth the law regarding spot zoning. However, I disagree with its application of that law to the facts in this case.

For example, under the first criteria for spot zoning established in Little v. Board of County Commissioners of Flathead County (1981), 193 Mont. 334, 346, 631 P.2d 1282, 1289, the question is whether the proposed use is different than the prevailing use in the area. I conclude that the proposed condominium development was a significantly different use than the single-family residential use of the surrounding area. In an “A” residence district, only single-family dwellings are allowed. In a “C” residence district, apartment houses, multiple dwellings, and townhouses are allowed. Although, as the majority points out, townhouses are permitted as a conditional use in “A” residential districts, conditional uses are not automatically granted. Conditional uses are permitted only after submission of a detailed application, and after all the procedures pertaining to a zone change, including a public hearing, have been complied with.

Single-family residential use is substantially different than multiple-unit housing. In an “A” residential district, homes, along with the property on which the homes are located, are individually owned. Each individual property owner is responsible and accountable for the maintenance of his or her own property. Ownership in a condominium unit, on the other hand, provides title to the dwelling unit, but no personal ownership of the land on which the unit is located. A condominium owner owns only a percentage interest in the common elements which include the land on which his or her dwelling unit is located. Individual unit owners have no personal control over maintenance of the real property on which they reside.

Furthermore, the population density of the area where this proposed condominium development is to be located will be twenty-nine percent higher than it would be if developed for single-family residential use. It logically follows that the traffic volume in the neighborhood can be expected to increase twenty-nine percent more following the development of the area for condominium use than it would following development of the area for single-family residential use.

Anyone who has ever lived in both a single-family residential area and a condominium development, or driven through the two different types of neighborhoods, knows that the character of each is entirely different from the other. In short, there is nothing similar about a condominium development and a single-family residential neighborhood. If the two types of neighborhoods were as similar as the City of Great Falls now contends, and as the majority now holds, then there would be no reason for the City of Great Falls to restrict condominium developments to class “C” residential areas, rather than simply allow any type of residential construction in a class “A” residential area.

For these reasons, I conclude that the proposed use of the land in question was significantly different from the prevailing use in the area and I disagree with the majority’s conclusion to the contrary.

In Little, we set forth the second and third factors to be considered as follows:

Second, the area in which the requested use is to apply is rather small. This test, however, is concerned more with the number of separate landowners benefited by the requested change than it is with the actual size of the area benefited. Third, the requested change is more in the nature of special legislation. In other words, it is designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public.

Little, 193 Mont. at 346, 631 P.2d at 1289 (citations omitted; emphasis added).

The second test, as pointed out, is concerned with the number of separate landowners benefited by the requested change. In this case, only one landowner is benefited by the change. That is the owner who intends to develop the property for multiple-unit residential construction, and who will presumably profit more by developing it for that purpose, rather than single-family residential use.

For the same reason, the third Little factor is satisfied in this case. The developer of the condominium in the middle of a single-family residential neighborhood will profit by his development at the expense of those surrounding landowners who purchased and moved into their homes based on the assumption that the residential character of the neighborhood would remain as it was because of the zoning restrictions that were then in place.

In summary, I conclude that the proposed condominium development to which the appellants objected was significantly different from the prevailing use of their neighborhood, will benefit only the developer, and was in the nature of special interest legislation intended to benefit the developer at the expense of surrounding landowners and the public in general.

For these reasons, I dissent from the majority opinion. I would reverse the order of the District Court which granted summary judgment to the respondent and remand to the District Court with instructions to enter summary judgment in favor of the appellants.

JUSTICE HUNT joins in the foregoing dissenting opinion.