text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID STEVEN FARNSWORTH, Defendant and Appellant.
    No. 89-332.
    Submitted on Briefs Nov. 21, 1989.
    Decided Dec. 20, 1989.
    783 P.2d 1365.

      John Keith, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Steve Hudspeth, Deputy, Great Falls, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant appeals his conviction in the Eighth Judicial District, Cascade County, Montana, of one count of criminal sale of dangerous drugs and two counts of criminal possession of dangerous drugs. The District Court sentenced appellant to twenty years for the criminal sale conviction and six months each on the criminal possession convictions which were to be served concurrently with the criminal sale sentence. The District Court also sentenced appellant to an additional five years as a persistent felony offender to be served consecutively with the other sentences. We affirm.

Appellant raises the following issues for review:

1. Did the District Court properly instruct the jury as to the defense of entrapment?
2. Were appellant’s substantial rights violated when he did not receive a preliminary hearing because he was charged by an information?
3. Was appellant denied his right to counsel because counsel was not appointed until after the information was filed?
4. Did the District Court err in denying appellant’s motion to hire an investigator?
5. Did the District Court improperly deny appellant’s challenge to the statute designating marijuana as a dangerous drug?
6. Did the District Court err when it sentenced appellant as a persistent felony offender?

On October 17, 1988, Great Falls police officers testified that the Great Falls Police Department received a tip from an individual identifying himself as Ray Armstreet regarding illegal drug activity in his apartment building. Two detectives met with Armstreet who informed them that a tenant in his apartment building had asked him to find people interested in buying marijuana. After questioning Mr. Armstreet regarding his information, the detectives decided to attempt a “buy-bust” marijuana purchase with one of the detectives posing as the buyer.

As soon as the “buy-bust” operation was in place, the undercover detective directed Mr. Armstreet to enter the apartment building and advise the target individual that he had an interested buyer waiting in a car outside. A short time later the defendant came out and sold the detective $40 worth of marijuana and gave the detective an additional four “joints”. After completing the deal, the appellant left the car and walked back toward the apartment building where he was arrested by other officers. The officers searched appellant and found marijuana on his person. After obtaining a search warrant for appellant s room, the officers also found marijuana in his room.

On October 18, 1988, appellant had his initial appearance before a justice of the peace who set bail and set a date for a preliminary hearing. However, on October 26, 1988, the county attorney was granted leave to file an information charging appellant with one count of sale of dangerous drugs and two counts of possession of dangerous drugs. Counsel was appointed for appellant on October 31, 1988. Appellant was arraigned on November 7, 1988.

At trial appellant raised the defense of entrapment. He testified that Armstreet, who appellant knew as “Gary,” initially sold him the marijuana and then induced him to sell the marijuana to the undercover officer. Appellant alleged that Armstreet was an agent of the police.

t — <

Did the District Court properly instruct the jury as to the defense of entrapment?

The District Court gave the following instruction regarding entrapment:

“The elements of the defense of entrapment: (1) Criminal intent or design originating in the mind of the police officer or informer; (2) absence of criminal intent or design originating in the mind of the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing.”

Appellant contends that this instruction is error because it is unnecessarily complex and misleading and not required by Montana’s Entrapment Statute, § 45-2-213, MCA. Appellant also argues that a due process instruction based on outrageous government conduct should have been given. We reject both appellant’s contentions.

The instruction at issue, while not a model, expresses the law adopted by this Court and approved in numerous cases. See, State v. Kamrud (1980), 188 Mont. 100, 105, 611 P.2d 188, 191; State v. Kelly (1983), 205 Mont. 417, 441, 668 P.2d 1032, 1045; State v. Canon (1984), 212 Mont. 157, 167, 687 P.2d 705, 710; and State v. Walker (1987), 225 Mont. 415, 422, 733 P.2d 352, 357. Appellant provides absolutely no rationale for his contention that the instruction is unnecessarily complex and misleading to the jury. Further, although appellant argues that a due process instruction should have been given, appellant did not submit such an instruction for consideration by the District Court. Section 46-16-401(4)(a), MCA, provides that:

“When the evidence is concluded, if either party desires special instruction to be given to the jury, such instructions shall be reduced to writing, numbered, signed by the party or his attorney, and delivered to the court.”
“We have held this statutory language to be mandatory. (Citation omitted.)” Walker, 733 P.2d at 357. Because appellant failed to offer a proposed due process instruction he has waived this claim. We hold that the District Court properly instructed the jury regarding the entrapment defense.

II.

Were appellant’s substantial rights violated when he did not receive a preliminary hearing because he was charged by an information?

Appellant contends that his substantial rights were violated because he was neither given a preliminary hearing nor any opportunity to challenge the State’s assertion of probable cause. These contentions lack any credibility whatsoever.

Section 46-7-103, MCA, requires that a preliminary hearing be held within a reasonable time following the initial appearance unless the district court grants leave to file an information. Before a district court can grant leave to file an information, it must have independently determined that probable cause exists to believe the defendant committed an offense. Section 46-11-201, MCA. The defendant has no vested right to a preliminary hearing but rather has a right to an independent judicial finding of probable cause. State v. Higley (1980), 190 Mont. 412, 419, 621 P.2d 1043, 1048, citing Gerstein v. Pugh (1975), 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54.

In the instant case, although the justice of the peace scheduled a preliminary hearing, the District Court upon a finding of probable cause, granted leave to file an information prior to the preliminary hearing. The appellant received an independent judicial determination of probable cause within a reasonable time. See, Higley, 621 P.2d at 1048 (ten-day delay in determining probable cause not unreasonable).

The apparent reason that appellant remained in jail until his arraignment was his inability to post the bail that was set at his initial hearing. The record does not reflect that appellant ever challenged the amount of bail. Nor does the record reflect that appellant ever moved the District Court to dismiss the information for lack of probable cause. We hold that appellant was not entitled to a preliminary hearing.

III.

Was appellant denied his right to counsel because counsel was not appointed until after the information was filed?

Appellant’s contention that his right to counsel was violated because counsel was not appointed until after the information was filed is untenable. Montana law is well settled that a defendant is not entitled to the assistance of counsel at the initial appearance because “[t]he initial appearance is not a ‘critical stage’ of the prosecution in Montana.” State v. Dieziger (1982), 200 Mont. 267, 270, 650 P.2d 800, 802. Contrary to appellant’s assertion, the United States Supreme Court in Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, did not designate the setting of bail as a critical stage thus entitling the defendant to assistance of counsel. Coleman held that a preliminary hearing was a critical stage because a defendant could be substantially prejudiced without counsel. Coleman, 399 U.S. at 9-10, 90 S.Ct. at 2003. Further, appellant has not argued to this Court how his failure to obtain counsel before he did prejudiced him. We hold that appellant’s right to counsel was not violated by counsel not being appointed until after the information was filed.

IV.

Did the District Court err in denying appellant’s motion to hire an investigator?

Appellant provides this Court with no argument on this issue beyond the bare assertion that the District Court’s ruling placed appellant at a “potential disadvantage.” We reject appellant’s contention.

V.

Did the District Court err in denying appellant’s challenge to the statute designating marijuana as a dangerous drug?

45-9-101, 50-32-101 and 50-32-222, MCA, are the statutes wherein the legislature has declared marijuana a dangerous drug and designated as a crime the sale of dangerous drugs. Essentially appellant argues that at trial the State should have had to prove that marijuana is a dangerous drug and that it is a hallucinogenic substance. We specifically rejected this contention in State v. Petko (1978), 177 Mont. 229, 581 P.2d 425, where we stated:

“Marijuana is grouped with hallucinogenic drugs, but this dees not call for the trier of fact to make a specific finding as to its hallucinogenic capabilities. The legislature has made that determination.”

Petko, 581 P.2d at 430. The State is only required to prove that the substance appellant sold was marijuana which it did. We reject appellant’s contentions.

VI.

Did the District Court err when it sentenced appellant as a persistent felony offender?

Appellant contends that the District Court improperly sentenced him to an additional five years as a persistent felony offender. Appellant argues that the persistent offender statute constitutes double jeopardy. Further appellant asserts that the District Court’s decision that he was a persistent felony offender was based on evidence improperly before the District Court. We disagree.

This Court has soundly rejected the double jeopardy argument appellant raises to the persistent offender statute. See, State v. Maldonado (1978), 176 Mont. 322, 328-329, 578 P.2d 296, 300. Appellant provides this Court with no authority to the contrary. The persistent felony statute which authorizes enhanced sentences for recidivists does not constitute double jeopardy.

Similarly, appellant’s evidentiary objections are without merit. The Montana Rules of Evidence do not apply to sentencing proceedings. Rule 101(c)(3), M.R.Evid. The persistent felony offender determination is part of the sentencing proceeding. State v. Smith (Mont. 1988), [232 Mont. 156,] 755 P.2d 569, 571-72, 45 St.Rep. 955, 958; State v. LaMere (1983), 202 Mont. 313, 321, 658 P.2d 376, 380. The District Court relied on competent evidence, certified copies of court documents from Utah and expert testimony regarding appellant’s fingerprints, to establish the requirements of the persistent felony offender statute.

Further, contrary to appellant’s claim the State is not required to prove that the prior conviction offered for purposes of the persistent felony offender determination is constitutionally valid. See State v. Campbell (1985), 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197 (1986). Of course, a constitutionally infirm conviction cannot be used to support a determination of a persistent felony offender. Lewis v. State (1969), 153 Mont. 460, 457 P.2d 765. Contrary to the facts in Lewis, upon which appellant relies, in the instant case the appellant has not challenged the constitutional validity of the prior conviction in Utah. We hold that the District Court properly sentenced appellant as a persistent felony offender.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, BARZ and WEBER concur.


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    In Re the MARRIAGE OF SHEILA G. LYMAN, Petitioner and Respondent, and CHARLES E. LYMAN, Respondent and Appellant.
    No. 89-356.
    Submitted on Briefs Oct. 25, 1989.
    Decided Dec. 20, 1989.
    783 P.2d 1362.

      M. Dean Jellison, Kalispell, for respondent and appellant.
    Gary R. Christiansen, Warden, Christiansen, Johnson & Berg, Kalispell, for petitioner and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Charles Lyman appeals from a judgment by the District Court of the Eleventh Judicial District, Flathead County, awarding Sheila Lyman attorney’s fees and costs. We reverse.

Sheila filed for dissolution on August 10, 1983, in Cause No. DR-83-346. After a non-jury trial on December 18, 1984, the District Court entered a decree of dissolution on January 3, 1985. The terms of the parties’ separation and property settlement agreement, incorporated into the decree by reference, required Charles to make certain monthly and periodic payments to Sheila. In its July 23, 1985 order finding Charles in contempt for his failure to make these mandatory payments, the District Court ruled that Sheila was “entitled to recover her reasonable attorney’s fees and costs, to be determined at a subsequent hearing for that purpose.”

One of the marital assets was the Bushwacker Restaurant in Port Angeles, Washington. The parties owned a one hundred percent interest in the restaurant business and a seventy percent interest in the real estate on which the restaurant is located. Marian Burke, Charles’ mother, owned the remaining thirty percent interest in the real estate. This asset became part of Mrs. Burke’s estate upon her death. Charles was co-executor of his mother’s estate along with his brother.

Sheila received the parties’ interest in the Bushwacker Restaurant and the underlying real estate pursuant to the separation and property settlement agreement. During the process of negotiating her purchase of Mrs. Burke’s thirty percent interest in the real estate, Sheila executed the following handwritten release of any claim for attorney’s fees from Charles resulting from the District Court’s order of July 23, 1985:

“August 13, 1986
“To Whom it may concern,
“I, Sheila Lyman, release Charles Lyman from all obligations to pay any outstanding attorney’s fees that I have with Don LaBar or his firm for representation of me in the Lyman dissolution of marriage.
“/s/ Sheila Lyman”

In a separate action, Cause No. DR-87-189(B), Sheila petitioned for modification of the decree of dissolution based both on a change in circumstances and Charles’ failure to fully disclose the assets of the marital estate. Sheila sought recovery of attorney’s fees incurred in pursuing the modification and those awarded to her in Cause No. DR-83-346, the prior and separate contempt action. The District Court heard testimony and argument regarding the propriety of entering a judgment for attorney’s fees awarded in the contempt action. However, its findings of fact and conclusions of law contained no ruling on that issue.

Sheila then moved the District Court for an order in Cause No. DR-83-346,

“determining the attorney’s fees and costs contemplated and Ordered by the Court to be paid as part of the Findings of Fact, Conclusions of Law and Order issued by the Court on July 23, 1985,. . . [and] [f]or interest on said sums at the rate of 10% per annum from and after July 23, 1985.”

The court found Sheila’s claim was not barred by res judicata and that “[t]here being no consideration the purported ‘release’ is not enforceable.” Charles appeals from the judgment of the District Court.

RES JUDICATA

Charles argues that the District Court, by not ruling on an issue before it, implicitly denied recovery to the moving party on that basis. Thus, Sheila’s claim was barred by res judicata. Sheila, on the other hand, contends that the District Court refused to rule on this issue. While the record does not clearly reflect the District Court’s rationale, it is clear that the District Court did not enter a judgment regarding the prior awarded attorney’s fees in Cause No. DR-87-189(B).

“Only final judgments and orders intended to be final in nature are res judicata.” Lien v. Murphy Corp. (1982), 201 Mont. 488, 493, 656 P.2d 804, 806; Peterson v. Montana Bank of Bozeman, N.A. (1984), 212 Mont. 37, 45, 687 P.2d 673, 677. Furthermore, when the District Court in the modification proceeding did not enter a judgment regarding the attorney’s fees awarded in Cause No. DR-83-346, such judgment did not render the issue res judicata. Washington Pub. Power Supply Sys. v. Pittsburgh-Des Moines Corp. (9th Cir.1989), 876 F.2d 690, 699; Matter of Estate of Kopely (1988), 159 Ariz. 391, 767 P.2d 1181, 1183; Vertecs Corp. v. Reichhold Chems., Inc. (Alaska 1983), 671 P.2d 1273, 1276. The District Court properly ruled that res judicata did not bar Sheila’s claim.

CONSIDERATION

Sheila argues that “Wife and the Estate had reached agreement on [Wife’s] . . . purchase of the Estate’s interest [in the real estate] well over a year before the closing of the transaction . . . [and that] [t]here were no qualifications.” Sheila contends she offered the estate $40,000 cash or $50,000 terms for its thirty percent interest in the real property. Acceptance of her offer, Sheila asserts, is contained within the following portion of a letter from the co-executors’ attorneys dated April 25, 1985:

“Please be advised that the executors will accept the sum of $40,000 in cash for the 30% interest of Marian OS Burke in this real estate provided that the purchaser causes Mrs. Burke’s estate to be released from any liability under the aforesaid mortgage and further provided that the purchaser take subject to the lease of the Bushwacker Restaurant.”

This letter clearly contains additional terms in the requirement that the purchaser release the estate from any liability pursuant to the underlying mortgage. There is no indication that Sheila accepted these additional terms or that the parties entered into a written contract at this time. For that reason, the letter cannot be considered an acceptance but must be construed as a rejection of Sheila’s offer and a counter offer. Carriger v. Ballenger (Mont. 1981), [-Mont. -,] 628 P.2d 1106, 1109, 38 St.Rep. 864, 867.

Thus, the following letter of June 17,1986, from Charles’ attorney to Sheila was a new offer:

“[Charles] has informed me that once he has received confirmation from Ann Blickensderfer that she has received a cashier’s check in the amount of $40,000, plus a cashier’s check in the amount of $4,400.00 representing 11% interest to June 1, 1986, plus a per diem of $12.06 from June 1, 1986 plus your share of the closing costs which is in the amount of $13.00. You will also be responsible for the second half property taxes in the sum of $2,040.50 which amount will not have to be paid at closing. [Charles] will also require a written statement by you that you will release him from all obligation to pay any outstanding attorney’s fees you have with Don LaBar or his firm for representation of you in the Lyman dissolution and any of its aftermath.”

Sheila testified that she believed the sale of the estate’s interest in the real property would not have gone through had she not executed the release. Sheila appears to have fulfilled the other requirements set forth in the June 17 letter. These terms were not mentioned in the April 25, 1985, letter. If, as Sheila contends, a contract was formed on April 25, the terms contained in the June 17 letter would be modifications of the original contract and would also require additional consideration. Naylor v. Hall (1982), 201 Mont. 59, 66, 651 P.2d 1010, 1014; § 28-2-504, MCA. However, no contract was formed on April 25, therefore the June 17 letter constituted a separate offer for which there was adequate consideration. We therefore conclude Sheila released Charles from his obligation to pay her attorney’s fees. The District Court erred in ruling otherwise.

We reverse.

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


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRUCE JAMES CHASSE, Defendant and Appellant.
    No. 89-369.
    Submitted on Briefs Nov. 21, 1989.
    Decided Dec. 20, 1989.
    783 P.2d 1370.
    Terry A. Wallace, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patti Powell, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Betty Wing, Deputy, Missoula, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Bruce James Chasse appeals his conviction and sentence in District Court, Missoula County, for Driving Under the Influence, Second Offense, contending that such conviction violates the constitutional protection against double jeopardy. We affirm.

The District Court’s opinion and order in this case were based on the Stipulated Facts filed by both parties. A brief summary of those facts follows.

Chasse was first arrested for Driving while Under the Influence on June 1, 1984 and three days later he pleaded guilty to that offense. At the time Chasse, only seventeen years old, was not represented by counsel. Chasse was not advised of his right as a juvenile to have his parents present or of the consequences of enhanced punishment for subsequent DUIs. He was fined $50.

By the time of his second offense DUI on September 15, 1984, Chasse was eighteen years old. Chasse appeared before a justice of the peace, whom Chasse claims did not advise him of his rights. Again, Chasse pleaded guilty. He was sentenced to six months in jail and fined $400. After spending seven days in jail, Chasse was released with the condition that he enter an in-treatment center for alcoholism. Chasse admitted himself to treatment in Great Falls, and after release from treatment, he attended ACT school.

As the result of an October 25, 1986 motorcycle-pickup truck collision, Chasse was arrested a third time for DUI. A blood sample drawn at the hospital where he was taken after the accident showed Chasse’s blood alcohol concentration to be .177. Originally, Chasse was charged with third-offense DUI and the matter was filed in district court. When it was learned that Chasse’s first DUI conviction was as a juvenile, the cause was remanded to justice court as a second offense DUI, pursuant to State v. Gee (1986), 222 Mont. 498, 723 P.2d 934.

At the justice court trial Chasse was convicted of second offense DUI as well as operating a vehicle without proper registration and driving without a valid driver’s license. Appealing only the DUI conviction to the District Court, Chasse reasserted his argument that charging him with second offense DUI violated his constitutional protection against double jeopardy. Because he had already suffered one conviction for second offense DUI, Chasse argued that it would be double jeopardy to try him again for second offense DUI. The District Court rejected this argument and found Chasse guilty of DUI, second offense.

On appeal to this Court Chasse presents the same issue:

Can a person in Montana be convicted of DUI, second offense, twice within a period of five years under Montana’s DUI statutory scheme?

Chasse makes exactly the same argument to this Court as he did to the justice and District Courts. Like the Justice and District Courts, we also reject his double jeopardy argument.

Chasse was charged under § 61-8-401, MCA, for driving under the influence of alcohol. After he was tried and convicted he was sentenced under the provisions of § 61-8-714, MCA.

The gist of Chasse’s argument is that, according to the sentencing scheme of § 61-8-714, MCA, two convictions for second offense DUI within a five-year period is not permitted by the statute. Thus, he argues, his twice being convicted for the crime of second offense DUI constitutes double jeopardy. This, Chasse avers, amounts to a denial of procedural and substantive due process because he is now charged, convicted and sentenced for a crime undefined by the law — the crime of “second DUI, second offense.”

Our Double Jeopardy Clause simply states that “no person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.” Art. II, § 25, Mont. Const. (1972). The Fifth Amendment to the United States Constitution mandates that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

In a recent criminal case this Court explored the operation of the Double Jeopardy Clause:

“The basic design of the Double Jeopardy Clause is the prevention of successive prosecutions and the attendant threat of multiple punishments. (Citations omitted.) The appeal of a sentence imposed upon conviction does not expose a defendant to successive prosecutions nor multiple punishments for the same crime. A defendant remains subject to a single determination of guilt or innocence and a single, albeit potentially more severe, punishment.”

State v. Wirtala (Mont. 1988), [231 Mont. 264,] 752 P.2d 177, 181, 45 St.Rep. 596, 600.

In Wirtala, the nature and purpose of the Double Jeopardy Clause was also discussed:

“That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Wirtala, 752 P.2d at 181 (citing United States v. Di Francesco, (1980), 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, 340).

None of the three above-listed protections applies to the case at bar. This is not a second prosecution for the same offense after acquittal or conviction. Nor is Chasse’s sentence for the 1986 DUI multiple punishment for the same offense.

Montana’s statutory bar to double jeopardy, found at § 46-11-503, MCA, prohibits “a prosecution based upon the same transaction as a former prosecution” under certain circumstances. It is obvious that Chasse’s prosecution for the October 1986 DUI was not based upon the same transaction as his September 1984 prosecution. Thus, no double jeopardy attaches. The problem is not with Chasse’s present DUI conviction but with the prior convictions. While the two previous convictions were not erroneous, the penalties Chasse received in 1984 may have been improper. Nonetheless, the sentence Chasse received in 1989 was proper and fair. When the error was discovered, the State moved to remand the case to justice court and charged Chasse with DUI, second offense. He was then properly prosecuted, convicted and sentenced in accordance with the laws of ihe State of Montana for a second offense DUI.

We affirm the District Court’s holding.

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


text:
    FRANCIS M. TINDALL, Plaintiff and Appellant, v. KONITZ CONTRACTING, INC., Defendant and Respondent.
    No. 89-388.
    Submitted on Briefs Oct. 20, 1989.
    Decided Dec. 20, 1989.
    783 P.2d 1376.

      Dennis McCafferty, James, Gray & McCafferty, Great Falls, for plaintiff and appellant.
    William Berger, Wilkins & Berger, Lewistown, for defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Plaintiff, Francis M. Tindall, filed a complaint against defendant, Konitz Contracting, Inc., on September 6, 1984, alleging that defendant breached a personal service contract that the two parties entered into on November 16, 1981. Defendant filed a counterclaim on October 28, 1985, alleging that plaintiff intentionally and maliciously interfered with a business relationship between defendant and a third-party and that plaintiff intentionally and maliciously sent a libelous letter to a third-party that caused defendant injury. The District Court of the Tenth Judicial District, Fergus County, found that the personal service contract was void for lack of consideration; that plaintiff tortiously interfered with a business relationship; and that plaintiff maliciously committed libel. The court then imposed on Tindall $7,500 in compensatory damages and $8,500 in punitive damages. Plaintiff appeals. We affirm.

The issues raised on appeal are:

1. Whether the District Court erred in concluding that no consideration existed for the personal service contract;
2. Whether the District Court erred in concluding that plaintiff relied upon “forbearance to sue” as consideration for the personal service contract;
3. Whether the District Court erred in finding that defendant agreed to the personal service contract under duress;
4. Whether the District Court erred in determining that the counterclaim should not be tried separately;
5. Whether the District Court erred in concluding that plaintiff intentionally interfered with a business relationship between defendant and a third-party;
6. Whether the District Court erred in concluding that the November 19 letter from plaintiff was libelous per se;
7. Whether the District Court erred in assessing plaintiff with $8,500 in punitive damages after concluding that plaintiffs actions were malicious; and
8. Whether the District Court erred in refusing to hear testimony regarding excessive drinking by defendant at the time he signed the personal service contract.

Francis M. Tindall, plaintiff, operated a general contracting business centered in Lewistown, Montana, that primarily dealt with crushing gravel for secondary roadways and runways. In 1979, Tindall wanted to retire. During that same year, Tindall met Thomas Konitz, defendant, who at that time was employed by another general contracting firm. The two had several discussions regarding the sale of Tindall’s business to Konitz. Konitz finally agreed to purchase Tindall’s business and on August 1, 1979, Konitz and Tindall consummated the sale of the business through the signing of three documents. The documents were prepared by Tindall’s attorney to provide tax benefits for Tindall. The three documents included a lease on the business real estate with an option to purchase; an equipment lease; and a buy/sell agreement regarding some other specifically listed equipment.

Both parties realized that the only way Konitz could successfully take over the business was through Tindall’s initial support and active assistance, including Tindall’s bonding capacity. During the next few months, Konitz bid on three jobs — OMAD 3, OMAD 4 and the Stanford Airport. Konitz, who had experience in bidding, expediting and supervising smaller jobs, prepared the bids. Tindall, however, signed the bid forms and furnished the bonds. Tindall was granted these jobs, but Konitz did the actual work and paid the bond premiums. The payments received on the jobs first went to Tindall, who did not withhold any service charges for the use of his bonding capacity. In March, 1980, Tindall and Konitz, as a joint venture, bid on and were awarded the Griffin Creek job. Konitz again prepared the bids and accomplished the actual work. Konitz subsequently bid and bonded in his own name, and without assistance by Tindall, the work on the Magpie road.

During the spring of 1981, Tindall began presenting Konitz with a personal service contract. The contract provided that Konitz would pay Tindall for his services at a rate of four percent of the gross contract price for assistance in the bidding, preparation and other administrative services necessary to complete the contract and another three and half percent whenever Tindall acted as a guarantor or surety on the contract. In addition, the contract provided that payments would begin sixty-one months from the execution of the contract at a rate of one thousand dollars per month. Konitz initially refused to sign the personal service contract. Tindall, however, was relentless in pressuring Konitz to sign the contract. Tindall threatened Konitz that if he did not sign the contract, he would put Konitz out of business by going to Konitz’s suppliers, bankers and bonding companies and by repossessing Konitz’s equipment. In light of Konitz’s deteriorating financial situation, Konitz could not have successfully fought an economic or legal battle with Tindall and remain in a viable business position. Konitz therefore signed the personal service contract on November 19, 1981 in Tindall’s attorney’s office. The personal service contract that Tindall prepared and that Konitz signed stated that Tindall helped bid and bond five jobs and therefore Tindall was entitled to $138,629.80, with payments of one thousand dollars a month beginning August 1, 1984.

Konitz’s financial position substantially improved from 1981 to the fall of 1984. In the summer of 1984, Konitz made the last payment to Tindall under the 1979 contracts. At that time, Konitz decided not to exercise the option to purchase the real estate and also not to make the August 1, 1984 payment under the personal service contract. Tindall became very angry and attempted to carry out threats previously made against Konitz in 1981 and the earlier part of 1984.

On September 6, 1984, Tindall filed a complaint with the District Court of the Tenth Judicial District, alleging that Konitz breached the personal service contract. Konitz subsequently filed a counterclaim, alleging that Tindall intentionally and maliciously interfered with a business relationship between Konitz and a third-party and that plaintiff maliciously sent a libelous letter to a third-party that caused Konitz injury. Tindall then filed a motion with the District Court under Rule 42(b), M.R.Civ.P. to hear Konitz’s counterclaim separately from the original complaint. The District Court denied the motion. A nonjury trial was held on February 9 and 10, 1988. The court issued its Findings of Fact and Conclusions of Law on October 17, 1988, finding that the personal service contract was void for lack of consideration; that Tindall tortiously interfered with a business relationship; and that Tindall maliciously committed libel. The District Court also concluded that Tindall should be subjected to punitive damages. After a hearing was held, the court imposed on Tindall punitive damages in the amount of $8,500. Tindall appeals.

The first issue raised on appeal is whether the District Court erred in concluding that no consideration existed for the personal service contract.

Consideration is an essential element of a contract. Section 28-2-102(4), MCA; Boise Cascade Corp. v. First Sec. Bank of Anaconda (1979), 183 Mont. 378, 391, 600 P.2d 173, 181. In the present case, the District Court concluded that no consideration existed for the personal service contract. The findings of fact support this conclusion. The personal service- contract that Konitz signed on November 16, 1981 stated that

“WHEREAS TINDALL sold his contracting business to Konitz and thereafter assisted KONITZ in the bidding and bonding of various construction projects without which Konitz would have been unable to operate.
“NOW, THEREFORE, KONITZ hereby agrees to pay TINDALL from the percentages agreed upon between the parties, for TINDALL’S assistance on said projects, the sum of $138,629.80. Provided further that said sum shall be paid in monthly installments of $1,000.00 per month commencing August 1, 1984, and continuing thereafter until paid in full.”

The amount of $138,629.80 was derived from the total amount Konitz received from five jobs — OMAD 3, OMAD 4, the Stanford airport, Griffin Creek and the Magpie road. It is undisputed that Konitz initially required Tindall’s bonding capacity. Tindall therefore assisted Konitz with bonding for the first four jobs. Most importantly, however, all of these jobs were bonded and executed prior to the signing of the personal service contract in November, 1981. By the time Konitz signed the personal service contract in 1981, he had already developed a bonding capacity for himself and no longer needed Tindall’s assistance.

The general rule is that past consideration is not sufficient to support a promise. Soukop v. Snyder (1985), 6 Haw.App. 59, 709 P.2d 109, 113; Sheehy v. Bodin (Minn. App. 1984), 349 N.W.2d 353, 354; Smith v. Recrion Corp. (1975), 91 Nev. 666, 541 P.2d 663, 665; Hansen v. Kootenai County Bd. of Comm’rs (1970), 93 Idaho 655, 471 P.2d 42, 51. As the United States District Court stated in Citibank, Nat’l Ass’n v. London (S.D. Texas 1981), 526 F.Supp. 793,

“[a] promise supported by past consideration is unenforceable because the detriment did not induce the promise. That is, ‘since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise.’ ”

526 F.Supp. at 803 (quoting J. Calamari & J. Perilo, Contracts § 4-2, at 135 (2nd Ed. 1977)). Likewise, Tindall’s consideration — bonding assistance — was tendered prior to the signing of the personal service contract. Tindall did not incur any new detriment upon the signing of the 1981 contract that would have induced Konitz to pay Tindall an additional $138,629.80. Konitz’s promise to pay Tindall $138,629.80 is thus unenforceable because it was supported by past consideration.

The record also supports the District Court’s finding that when Konitz bought Tindall’s equipment, he paid $150,000.00 more than the estimated market value of the equipment. The District Court found that Konitz did not attempt to dicker on Tindall’s figures because Konitz took into consideration the assistance Tindall was giving him in the business. Thus, Tindall was apparently already adequately compensated for his bonding capacity. In light of the above, the District Court did not err in concluding that no consideration existed for the 1981 personal service contract and was therefore void as a matter of law.

Tindall also argues that the District Court erred because it did not make a finding regarding one of Tindall’s witness’s testimony. The District Court does not need to address specifically each piece of Tindall’s evidence. All that is required is that the District Court set forth adequate findings and conclusions so that this Court does not have to speculate as to the reasons for the District Court’s decision. In re Marriage of Jones (1980), 190 Mont. 221, 224, 620 P.2d 850, 851-52. The District Court therefore did not err merely because it did not make a specific finding regarding one of Tindall’s witness’s testimony.

The second and third issues raised on appeal are whether the District Court erred in concluding that Tindall relied upon “forbearanee to sue” as consideration for the personal service contract and whether the District Court erred in finding that Konitz agreed to the personal service contract under duress.

This Court does not need to address these issues because we have already affirmed above the District Court’s conclusion that the personal service contract was void for lack of consideration.

The fourth issue raised on appeal is whether the District Court erred in determining that the counterclaim should not be tried separately.

Rule 42, M.R.Civ.P., governing whether a district court should consolidate or separate trials, provides a court with broad discretion in the handling of trial procedures. State ex rel., Fitzgerald v. Dist. Court of the Eighth Judicial Dist. (1985), 217 Mont. 106, 116, 703 P.2d 148, 155. This rule provides in pertinent part that

“[t]he court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.” Rule 42(b), M.R.Civ.P. In the absence of prejudice to the parties, this Court recognizes the policy that “[m]ultiple trials and appeals arising from a single dispute may create a severe burden in terms of increased costs to litigants, delay in resolution of the controversy, and court congestion.” Fitzgerald, 217 Mont. at 117, 703 P.2d at 155 (quoting Standard Insurance Co. v. Sturdevant (1977), 173 Mont. 23, 28, 566 P.2d 52, 55).

In the present case, Tindall argues that the court confused the facts associated with his complaint with the facts associated with Konitz’s counterclaim. Tindall then argues that he was prejudiced because this “confusion” resulted in the court finding that the personal service contract was void because Konitz signed it under duress. We disagree. As already discussed above, the contract was void for lack of consideration. Tindall therefore was not prejudiced as a result of the court also finding that the contract was void because of Konitz signing it under duress. In addition, the facts surrounding the personal service contract and the facts surrounding the bases of Konitz’s counterclaim are sufficiently intertwined. The District Court therefore did not err in denying Tindall’s motion to separate trials.

The next issue raised on appeal is whether the District Court erred in concluding that Tindall intentionally interfered with a business relationship between Konitz and a third-party, Morgenstern.

In Conclusion of Law No. 4, the District Court concluded that Tindall unlawfully interfered with Konitz’s and Morgenstern’s gravel contract. In particular, the court found that Konitz and Morgenstern had an agreement that Konitz would purchase from Morgenstern 3,000 tons of gravel. Although Tindall owned the gravel pit, Morgenstern leased the Pit from Tindall and paid royalties to Tindall on the gravel he sold. Morgenstern primarily used the gravel for himself but also sold gravel to the public. The court found that Tindall interfered with Konitz’s and Morgenstern’s contract when he directed Morgenstern not to sell the gravel to Konitz. As a result, Morgenstern did not sell the gravel to Konitz and Konitz was forced to go elsewhere and pay $7,500 more.

The four elements required to establish the tort of interference with a contract are that the defendant’s acts (1) were intentional; (2) were calculated to cause damage to the plaintiff in his or her business; (3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor; and (4) actually resulted in damage and loss to the plaintiff. Northwestern Nat’l Bank of Great Falls v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 40-41, 729 P.2d 1258, 1262; Rolz v. Myers (1982), 200 Mont. 286, 295, 651 P.2d 606, 611.

In light of the District Court’s findings of fact, all four of these elements were met in the present case. The court found that Tindall intentionally contacted Morgenstern so as to prevent Morgenstern from selling gravel that Konitz had already contracted to purchase. The court also found that Tindall was angry at Konitz for refusing to abide by the personal service contract and therefore engaged in a number of retaliatory actions, including interfering with the gravel contract between Morgenstern and Konitz. Tindall did not have the right to interfere with a third-party contract merely because he owned the gravel pit that Morgenstern was leasing. If Tindall did not receive royalties as a result of Morgenstern’s contract with Konitz, he would then have had the right to bring a complaint against Morgenstern. Furthermore, Tindall’s suspicions or beliefs about Konitz also did not give Tindall the right to interfere with a contract between Konitz and Morgenstern. Obviously, Tindall’s actions were intentionally calculated to cause damage to Konitz’s business and were done without a justifiable cause. Konitz thus had to purchase gravel elsewhere to fulfill his obligations. Konitz had to pay $7,500 more than if he would have been allowed to purchase the gravel from Morgenstern. Konitz thus suffered actual damage in the amount of $7,500.

The record supports the District Court’s findings and conclusions and we therefore hold that the court did not err in determining that Tindall tortiously interfered with a contract between Konitz and Morgenstern.

The sixth issue raised on appeal is whether the District Court erred in concluding that the November 19 letter from Tindall was libelous per se.

In its Conclusion of Law No. 5, the District Court concluded that the November 19, 1984 letter from Tindall was libelous and slanderous per se. The court also concluded that the letter, which was published to. Morgenstern, was sent with the purpose of destroying a lawful business relationship between Konitz and Morgenstern. The letter states

“Dear Jack,
“Due to Konitzs’ [sic] dishonest activites [sic] with me and defaulting on Contracts I am advising you that I will not allow any of his equipment, men, or any of his associates to be on my property from this day November 19, 1984 forward.
“Also you will not deliver or have delivered, or be active in any activities in furnishing any materials to Konitz on any of his jobs in this area from this day forward.
“I just ordered his equipment off my property a few minutes ago, and that is the way it will be from this day forward.

The only way this situation will be changed is by your communication from you to me receiving a document in writing, giving me full detail of the conditions and activities that may take place and etc.

“Sincerely,
“Francis Tindall”

Slanderous words are spoken words, whereas libelous words are written. Therefore, the letter cannot by definition be slanderous per se, however, this Court must nonetheless determine whether the District Court erred when it determined that the letter was libelous per se.

Libel is defined in our statutes under § 27-1-802, MCA, as

“a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.”

This Court considers several interpretative rules when determining whether words are libelous per se. These rules require that the defamatory words be construed according to their usual, popular and natural meaning and their common acceptance in society; the words must also be viewed by the court without the aid of special knowledge possessed by the parties concerned; the words must be susceptible of only one meaning and that meaning must be opprobrious; and the words must also be construed in their entirety and with reference to the entire document. Wainman v. Bowler (1978), 176 Mont. 91, 94, 576 P.2d 268, 270. When interpreting the libel statute, this Court has also stated that if the alleged libelous words impute dishonesty or corruption they are libelous per se. Manley v. Harer (1925), 73 Mont. 253, 260, 235 P. 757, 759.

In the present case, Tindall’s letter stated explicitly that Konitz had conducted dishonest activities with him and had defaulted on contracts. In light of the letter as a whole, and the business context in which it was addressed, the District Court did not err in concluding that Tindall’s November 19, 1984 letter to Morgenstern was libelous per se.

The next issue raised on appeal is whether the District Court erred in concluding that Tindall is liable for punitive damages.

In the District Court’s October 17,1988 order, the court found that Tindall’s actions were malicious and that as a result he should be subjected to punitive damages. However, the court also concluded that a hearing should be held on the assessment of punitive damages. The court subsequently held a hearing, and on May 12, 1989, the District Court ordered Tindall to pay $8,500 in punitive damages.

The statutes that govern the granting of punitive damages are §§ 27-1-220 and -221, MCA. Section 27-1-220(1), MCA, allows a judge or jury to award punitive damages for the purpose of punishing a defendant. Section 27-1-221(1), MCA, states that “reasonable punitive damages may be awarded where the defendant has been guilty of actual fraud or actual malice.” The statute also specifies that when awarding punitive damages the judge must clearly state the reasons for making the award in the findings of fact and conclusions of law. In particular, the findings and conclusions must demonstrate a consideration of each of the following matters:

(i) the nature and reprehensibility of the defendant’s wrongdoing;
(ii) the extent of the defendant’s wrongdoing;
(iii) the intent of the defendant in committing the wrong;
(iv) the profitability of the defendant’s wrongdoing, if applicable;
(v) the amount of actual damages awarded by the jury;
(vi) the defendant’s net worth;
(vii) previous awards of punitive or exemplary damages against the defendant based upon the same wrongful act;
(viii) potential or prior criminal sanctions against the defendant based upon the same wrongful act; and
(ix) any other circumstances which may operate to increase or reduce, without wholly defeating, punitive damages.

Section 27-1-221 (7) (b),MCA.

In its findings of fact and conclusions of law regarding punitive damages, the District Court addressed each of these issues. The court found that Tindall acted with malice; that Konitz’s actual damage was $7,500; that Tindall’s net worth was $330,000; that no evidence existed of any previous wrongdoing by Tindall; and that Tindall would reap financial gain through his actions. When addressing the nature, reprehensibility, and extent of Tindall’s wrongdoing, the court stated the following:

“3. That Francis M. Tindall is guilty of menace and duress, maliciously imposed upon Thomas Konitz in the execution of the Personal Service Contract; that Francis M. Tindall published a letter with the purpose of destroying a lawful business arrangement between Thomas Konitz and Jack Morgenstern, which letter was libelous and slanderous per se and Thomas Konitz is entitled to punitive damages as follows;
“a. That Francis M. Tindall wrongfully used his ‘clout’ which fully amounted to duress to force Thomas Konitz to sign the Personal Service Contract of November 16, 1981; that said action by Francis M. Tindall was reprehensible; that Francis M. Tindall had the ability to carry out the threats made to Thomas Konitz to ruin the business of Thomas Konitz; that Francis M. Tindall attempted to carry out those threats, which the publication of the libelous letter of November 19, 1984 was but one example.
“c. That the actions of Francis M. Tindall were in part to frighten Thomas Konitz and force him to sign the Personal Service Contract in order for Tindall to reap financial gains.
“d. That the actions of Francis M. Tindall were intentional.”

The record supports these findings and therefore the District Court did not err in determining that Tindall should pay $8,500 in punitive damages.

The last issue raised on appeal is whether the District Court erred in refusing to hear testimony regarding excessive drinking by Konitz at the time he signed the personal service contract.

The personal service contract was void for lack of consideration. We therefore do not need to address Konitz’s mental state at the time he signed the contract.

Affirmed.

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


author: JUSTICE WEBER

text:
    CLARENCE T. BELUE and Dian R. Belue, Plaintiffs and Respondents, v. DANIEL J. GEBHARDT, Bonnie R. Gebhardt, Richard A. Dorn, Fred J. Call, Sr., and Larry Dorn, Defendants and Appellants.
    No. 89-391.
    Submitted on Briefs Nov. 2, 1989.
    Decided Dec. 20, 1989.
    784 P.2d 396.
    Douglas Y. Freeman, Hardin, for Dorn.
    James E. Torske, Hardin, for Call, Sr.
    Clarence T. Belue, Hardin, pro se.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the District Court, Thirteenth Judicial District, Big Horn County, Montana. The District Court granted summary judgment in favor of plaintiffs. Defendants appeal. We affirm.

The sole issue presented for review is whether the default clause of a contract for deed limits sellers to the remedy of termination of the contract.

On September 24, 1981, Mr. and Mrs. Belue sold an office building in Hardin, Montana, to Dr. and Mrs. Gebhardt, on a contract for deed. The Gebhardts moved from Hardin in 1983 and sold their interest in the contract to Richard Dorn and Fred Call, Sr. Mr. Dorn was a realtor. He rented the building until 1988, when he determined he could no longer make payments on the contract. Mr. Dorn assigned his interest in the contract to his cousin, Larry Dorn, who made one payment and then defaulted. The last payment the Belues received was in April 1988. On August 1, 1988, and again on August 26, 1988, they sent a notice of default to the Gebhardts and to Mr. Richard Dorn, Mr. Fred Call; and Mr. Larry Dorn. When the default was not cured, the Belues brought suit for the balance due under the contract. The District Court granted summary judgment in favor of plaintiffs, and defendants appeal.

Summary judgment is only appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. On appeal our standard of review is to determine whether the record reveals genuine issues of material fact, which would preclude the District Court from granting summary judgment.

Defendants’ primary contention is that the default clause in the contract limits the plaintiffs’ remedy to termination of the contract. They contend the District Court erred in granting plaintiffs a judgment on the balance due.

The default clause states in pertinent part:

“11. DEFAULT
“Should any default of the purchasers hereunder remain incurred for more than twenty (20) days after written notice thereof to purchasers, then sellers may, at sellers’ option, upon 5 days additional written notice to purchasers, declare the entire outstanding balance hereof with accrued interest thereon immediately due and payable, and upon non payment thereof, sellers may as an alternative to any other remedy terminate this agreement without further notice. In the event of such termination, purchasers agree on demand:
“(a) To surrender possession of said property and improvements thereon, immediately and peaceable:
“(b) To execute such instruments as the seller may require to evidence of record termination of this agreement and of purchasers’ interest in such property and improvements, and sellers shall be entitled to retain all payments made hereunder as liquidated damages for the breach of this agreement and as a reasonable rental for the use of the property.”

The District Court concluded that according to the language of the contract and this Court’s holding in Glacier Campground v. Wild Rivers, Inc. (1978), 182 Mont. 389, 184 Mont. 543, 597 P.2d 689, plaintiffs were not limited to termination of the contract as their sole remedy. We agree. In accordance with the default provision, the sellers gave the initial 20-day written notice and in addition gave the 5-day additional written notice under which the sellers declared the entire outstanding balance with interest immediately due and payable. There is no dispute that the balance was properly declared immediately due and payable. The clause further provides that upon nonpayment of that balance the “sellers may as an alternative to any other remedy terminate this agreement without further notice.” (Emphasis added.) The right to terminate is clearly a choice given to the sellers. There is no indication that termination is the only remedy. Termination is specifically stated to be an alternative to any other remedy, The parties are bound by the plain meaning of the words of the contract where there is no ambiguity. Quinn v. Briggs (1977), 172 Mont. 468, 475-76, 565 P.2d 297, 301.

In Glacier Campground this Court had occasion to consider the issue of whether the plaintiff was limited to a certain remedy. We stated:

“In the absence of a contractual provision expressly limiting the remedy or remedies available, a party may pursue any remedy which law or equity affords, as well as the remedy or remedies specified in the contract.”

Glacier Campground, 597 P.2d at 696. We conclude that the language of the contract allows the plaintiffs an election of remedies. In the present case, plaintiffs elected to sue on the balance due.

As an alternative argument, defendants contend that the notices of default led them to believe that the plaintiffs intended to merely terminate the contract. They contend that the notices should have been specific as to the remedy which would be pursued. No authority is cited for this proposition. The language of the default notices follows the language of the contract for deed, in that it states that unless default is cured, plaintiffs may either declare payable the entire balance of principal and interest, or in the alternative, terminate the contract. Accordingly, we conclude that defendants’ contention in regard to the default notices is meritless.

We conclude that defendants failed to raise any genuine issues of material fact, and the court was correct in its grant of summary judgment in favor of plaintiffs. We affirm the District Court’s grant of summary judgment.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and BARZ concur.


text:
    JACK JOYNER, Plaintiff and Appellant, v. JOHN ONSTAD, and Gallatin County, a political subdivision of the State of Montana, Defendants and Respondents.
    No. 89-088.
    Submitted on Briefs Oct. 25, 1989.
    Decided Dec. 21, 1989.
    783 P.2d 1383.
    Jack Joyner, Belgrade, pro se.
    A. Michael Salvagni, County Atty., Marty Lambert, Deputy County Atty., Bozeman, for defendants and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

Plaintiff, Jack Joyner, appeals the decision of the District Court of the Eighteenth Judicial District, Gallatin County, granting defendants’ motion for summary judgment. We affirm.

Gallatin County hired Joyner on November 12, 1984 to work as a jailer in the Gallatin County Detention Center. On May 10, 1985, Joyner broke regulations by entering the cell of a female prisoner without being accompanied by another employee. A fight ensued between Joyner and the female prisoner. As a result of this incident, Gallatin County Sheriff John Onstad suspended Joyner’s employment, pending an investigation of the incident.

After completing the investigation, Sheriff Onstad, by written notice dated May 20, 1985, terminated Joyner’s employment because he improperly entered a prisoner’s cell and because of his abusive behavior. Joyner appealed his dismissal to the State Department of Labor and Industry on January 31, 1986. After a telephone hearing, the appeals division for the department sustained Joyner’s dismissal as proper by written order dated March 17, 1986. The Gallatin County Board of County Commissioners subsequently voted unanimously to uphold Joyner’s termination.

On February 27, 1987, Joyner filed a complaint in the District Court of the Eighteenth Judicial District, Gallatin County. In Count II, Joyner alleged that Sheriff Onstad and Gallatin County wrongfully discharged him and that they had breached the implied duty of good faith and fair dealing. Joyner then requested compensatory, punitive and exemplary damages, costs of the suit, and for such other and further relief as “may be met in the premises.” The court set a jury trial for December 19, 1988. On November 23, 1988, Sheriff Onstad and Gallatin County filed a motion for summary judgment along with a supporting brief.

On November 30, 1988, this matter came before the District Court for hearing on pre-trial motions. Joyner requested an additional week — until December 6, 1988 — to reply to the summary judgment motion. On December 6, 1988, Joyner failed to file a written response before the hearing. The court, however, did hear Sheriff Onstad’s and Gallatin County’s arguments in support of the motion for summary judgment. Joyner claimed that his response would be typed December 6, 1988 and submitted to the court. The court allowed Joyner to file a written response and ordered that the matter would be taken under advisement at 5:00 p.m. on December 6, 1988. Joyner never filed a response.

On December 12, 1988, the District Court granted Sheriff Onstad’s and Gallatin County’s motion for summary judgment for the reason that Joyner failed to file an opposing brief. Judgment was entered against Joyner on December 20, 1988. Joyner appeals.

The sole issue raised on appeal is whether the District Court erred in granting Sheriff Onstad’s and Gallatin County’s motion for summary judgment.

Summary judgment is appropriate when no genuine issue exists as to any material facts and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The burden first rests with the moving party, who may rely upon pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, to establish that no genuine issue exists as to any material facts. Rule 56(c), M.R.Civ.P. The burden then shifts to the party opposing the motion. Bills v. Hannah, Inc. (Mont. 1988), 230 Mont. 250, 749 P.2d 1076, 1079, 45 St.Rep. 179, 182. The rule specifically provides that the adverse party

“may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Rule 56(e), M.R.Civ.P.

In the present case, Sheriff Onstad and Gallatin County relied upon § 2-9-111, MCA, and Bieber v. Broadwater County (Mont. 1988), [232 Mont. 487,] 759 P.2d 145, 45 St.Rep. 1218, to argue to the District Court, both orally and in writing, that they had immunity from Joyner’s suit and that their motion for summary judgment should be granted. Joyner, on the other hand, did not deny nor rebut defendants’ arguments. Joyner also did not set forth any facts showing that a genuine issue existed for trial. The District Court had before it the pleadings, the decision of the Montana Department of Labor and Industry, and portions of the interrogatories. The court also held a hearing in which Joyner failed to argue, either orally or in writing, that Sheriff Onstad’s and Gallatin County’s motion for summary judgment should be denied.

The District Court did not err in granting Sheriff Onstad’s and Gallatin County’s motion for summary judgment in light of Rule 56(e), M.R.Civ.P. As stated before, this rule provides that summary judgment, if appropriate, shall be entered for the movant if the opposing party does not respond and set forth specific facts showing that a genuine issue exists as to a material fact. Merely because the District Court did not state specifically that “there is no genuine issue as to any material fact” does not warrant a reversal of the District Court’s decision. Furthermore, Joyner did not rebut nor deny Sheriff Onstad’s and Gallatin County’s motion for summary judgment nor did he set forth facts showing that there is a genuine issue of material fact for trial. The record supports the District Court’s determination that no genuine issue exists as to any material fact.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT and SHEEHY concur.


author: JUSTICE HUNT

text:
    COMPHEALTH, INC., Plaintiff and Appellant, v. HIGHLAND VIEW OUTPATIENT SURGICAL CENTER, a Montana corporation, Defendant and Respondent.
    No. 89-150.
    Submitted on Briefs Aug. 10, 1989.
    Decided Dec. 22, 1989.
    783 P.2d 1385.
    Larry Jent, Bozeman, for plaintiff and appellant.
    Leonard J. Haxby, Butte, for defendant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff and appellant, Comphealth, Inc., brought this breach of contract action against defendant, Highland View Outpatient Surgical Center. Following a bench trial, the District Court of the Second Judicial District, Silver Bow County, found in favor of the defendant. From this judgment, plaintiff appeals. We affirm.

The following issue is dispositive of the appeal:

Did defendant breach the contract between the parties by giving oral notice of its intent to cancel when the agreement required 30 days written notice of termination?

Defendant, a Montana corporation, is a freestanding outpatient surgical center located in Butte. In late June, 1984, it entered into a contract with plaintiff, a Utah corporation, in which plaintiff agreed to provide a locum tenens (substitute) physician acceptable to defendant at a rate of $2,950 per week for a period from July 30, 1984 to August 27, 1984. The contract included a cancellation clause, which granted defendant the right to terminate the agreement by giving 30 days written notice. The clause provided that failure to give the required notice would result in liquidated damages.

At the time the parties entered into the contract, defendant was in the process of constructing the surgical center building. Defendant anticipated that the center would open on July 30, 1984. Thus, the parties agreed that the contract would commence on that date. However, on July 10, 1984, defendant notified plaintiff that the center’s opening would be delayed due to a plumbers’ strike in the Butte area. Plaintiff consented to postpone the commencement of the contract. A new contractual period was never agreed upon by the parties.

On the day after it learned of the plumbers’ strike, plaintiff mailed to defendant the curricula vitae of two anesthesiologists. One, Dr. Tilby, was available for the anticipated term of the contract. The other, Dr. Plon, was unavailable for the initial contractual period. Plaintiff submitted Dr. Plon’s statistics, however, in the event the assignment extended longer than anticipated or in case Dr. Plon would fit defendant’s needs better than Dr. Tilby.

The parties dispute whether defendant ever accepted Dr. Tilby. Plaintiff’s agent, Sharon Thompson, testified that Dr. St. John, the president of defendant corporation, had indicated that Dr. Tilby would be acceptable and that plaintiff should plan to send him to work when the center was completed. Dr. Tilby also testified that plaintiff had informed him that he was to fill the temporary position.

Dr. St. John, on the other hand, testified that he had never accepted Dr. Tilby because Tilby’s file did not satisfactorily explain why his hospital privileges had been temporarily suspended in 1981. The District Court found that defendant had never accepted the physician.

In late July or early August, 1984, Dr. St. John notified plaintiff by telephone that the defendant would no longer need plaintiff’s services because it had hired a permanent anesthesiologist. Defendant did not follow up this phone conversation with written notice of cancellation.

On November 28, 1984, plaintiff filed this action, alleging that defendant had breached the contract by failing to give adequate notice of cancellation and failing to pay liquidated damages as provided in the contract. On December 1, 1988, trial was held before the District Court, sitting without a jury. The court heard the testimony of Dr. St. John and accepted the depositions of Ms. Thompson and Dr. Tilby. On December 29, 1988, the District Court issued findings of fact and conclusions of law. The court found that defendant had not breached the contract but had terminated the agreement in an appropriate and timely fashion. The court further found that plaintiff had not suffered any damages. Plaintiff appealed to this Court.

On appeal, plaintiff raises several issues, including whether the District Court applied the correct law in determining the enforceability of liquidated damages, whether the District Court correctly determined the nature of the contract, and whether defendant had actually accepted the physician offered by plaintiff. We need not answer these questions, however, because our conclusion that the defendant adequately complied with the cancellation provisions in the contract effectively disposes of the appeal.

Plaintiff argues that defendant’s method of canceling the contract was both untimely and procedurally improper and, therefore, triggered the agreement’s liquidated damages clause. We do not agree.

Substantial credible evidence supports the District Court’s finding that defendant gave adequate, timely notice of cancellation. The District Court found:

“6. [T]here was a thirty-day cancellation of the contract and based upon the testimony of Dr. Tilby and Dr. St. John, the Plaintiff was advised in late July or the first week in August, that Defendant was no longer in need of the services of the Plaintiff, that since they had not found a suitable physician, that the Defendant had found a physician of its own and had no further need for the services of the Plaintiff. Since the surgery center did not open until September 14, 1984, the notice was given more than thirty days in advance of any need for a Physician. Although this notice was not in writing, the overwhelming testimony reveals that no further search was made by the Plaintiff after that date. The contract was in fact canceled in late July or the first week of August, 1984, in substantial compliance with the agreement.”

In addition, we note that, due to the uncertainty created by the plumbers’ strike, the initial contractual period had been postponed and a new commencement date for the performance of the contract had not been agreed upon by the parties. Under the particular'facts of this case, where at the time of cancellation a specific performance period had not been agreed upon by the parties and where notice was actually given more than 30 days prior to any possible performance date, defendant gave timely notice of termination of the contract.

Furthermore, even though defendant gave oral rather than written notice of cancellation, the notice was procedurally adequate. Plaintiff does not now contest, nor has it ever contested, that it did not receive oral notice of cancellation. Plaintiff accepted the notice and took no further action in reliance upon the contract. In fact, shortly after defendant’s telephone call, plaintiff notified Dr. Tilby that he would not be filling the anesthesiologist position.

The present case can be distinguished from our earlier decision, Tomsheck v. Doran (1953), 126 Mont. 598, 256 P.2d 538, where we stated that exact compliance with contractual terms regarding notice of cancellation is an essential prerequisite to cancellation. Unlike the present case, the plaintiff in Tomsheck did not substantially comply with the terms of the cancellation provision. Although the Tomsheck contract required a one-year notice of cancellation, the plaintiff instituted a suit for rescission of the contract only one day after he delivered the termination notice to defendant. Moreover, in Tomsheck substantial prejudice to the non-canceling defendant in the form of forfeiture of land would have resulted had we failed to hold plaintiff strictly to the terms of the contract.

In the present case, defendant substantially complied with the terms governing notice of cancellation. Therefore, the District Court did not err in finding that defendant did not breach the contract and in refusing to award liquidated damages.

Affirmed.

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


author: JUSTICE McDONOUGH JUSTICE SHEEHY,

text:
    JOHN L. REINHARD, Claimant and Appellant, v. MISSOULA SHEET METAL, Employer and State Compensation Insurance Fund, Defendant and Respondent.
    No. 89-316.
    Submitted on Briefs Nov. 2, 1989.
    Decided Dec. 22, 1989.
    Rehearing Denied Jan. 18, 1990.
    784 P.2d 398.
    Richard B. Buley, Tipp, Frizzell & Buley, Missoula, for claimant and appellant.
    Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Claimant, John L. Reinhard, appeals the May 31,1989 judgment of the Workers’ Compensation Court which denied him a conversion of his biweekly workers’ compensation benefits to a lump sum payment. We affirm.

The sole issue on appeal is:

Whether the Workers’ Compensation Court abused its discretion when it denied John Reinhard’s request to convert his biweekly payments to a lump sum award.

The claimant, Mr. Reinhard, is a 41 year old, married man with two dependent children. On March 14, 1985, he suffered an on the job injury while employed at Missoula Sheet Metal in Missoula, Montana. This injury rendered Mr. Reinhard permanently and totally disabled. He must spend nineteen hours a day flat on his back and he can only walk with the aid of two canes.

. In addition to his physical ailments, Mr. Reinhard also suffers from rather substantial psychological problems. Since the injury, he has suffered severe depression. This depression has at times become so intense, that Mr. Reinhard has become suicidal. Examining physicians believe that the cause of Mr. Reinhard’s depression is multifaceted. They maintain that his psychological condition has its roots in the injury itself, chronic pain, loss of job, marital difficulties and pre-injury psychological problems arising from a chaotic social history.

Despite his health problems, Mr. Reinhard has done a remarkable job managing his finances. His assets, which are estimated at approximately $200,000, include I.R.A.’s, an investment portfolio, and several pieces of real property. Mr. Reinhard’s monthly income is approximately $4,000 and his monthly living expenses usually equal about $1000-$1200. By his own admission, his workers’ compensation benefits are not needed to meet the family budget or any other expenses.

In an effort to ease his psychological and physical problems, Mr. Reinhard presented a request to the Division of Workers’ Compensation for a lump sum advance of his benefits. The advance, which is approximately $350,000, would be used for the purchase of an apartment complex and for the purchase of a one level home. The living area in Mr. Reinhard’s present home is split by two sets of stairs and is heated primarily with wood. Due to his injuries, Mr. Reinhard cannot easily negotiate the stairs which run between the two levels in his home. He is, therefore, relegated to just half of the house much of the nineteen hours a day in which he must lie flat. Also, due to his injury, Mr. Reinhard can no longer split and saw the wood which is necessary to heat his house. He therefore desires to replace his home with one that suits his disabled condition.

The remainder of the lump sum would be used to purchase an apartment complex. Mr. Reinhard maintains that this purchase would benefit him in a number of ways. First, the investment would give him some direction in life and would allow him to beneficially occupy his time by managing the finances and income realized from the apartments. This direction, he maintains, would restore lost self-esteem which has accompanied his job loss and loss of position as the family bread winner. Mr. Reinhard also asserts that his continual problems with the Workers’ Compensation Division necessitate his separation from the “comp system”. Apparently, the inadequacies and his perceived incompetence of the Division has been a never ending source of frustration to Mr. Reinhard. It has become a major source of his depression and anger. Finally, Mr. Reinhard maintains that this investment will allow him to increase his yearly income by almost $7,000.00. This increase, he argues, would serve to better meet his physical and psychological needs.

The Workers’ Compensation Court, following trial, denied Mr. Reinhard’s request. It found that he had not overcome the presumption in favor of biweekly benefits, nor had he adequately established that a lump sum payment would be in his best interest. Following a denial of his request for a rehearing, Mr. Reinhard appealed to this Court.

The decision to award or deny a lump sum settlement will not be interfered with on appeal unless there has been an abuse of discretion. The Workers’ Compensation Court will be presumed correct and affirmed if supported by substantial evidence. It will be reversed only if the evidence clearly preponderates against its findings. Hock v. Lienco Cedar Products (1981), [_Mont._,] 634 P.2d 1174, 38 St.Rep. 1598.

Mr. Reinhard maintains that the lower court abused its discretion by holding that there is a presumption in favor of biweekly payments. According to Reinhard, at the time the accident occurred, there was no such presumption stated in the workers’ compensation statutes. Statutes which are in effect at the time of the accident control the outcome of any case brought before the Workers’ Compensation Court. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380. Therefore, Mr. Reinhard argues, and we agree, that the law, as it existed on the date of his injury will control the outcome of the case.

There was no statutory presumption against lump sum payments on March 14, 1985, which was the date of Mr. Reinhard’s accident. See §§ 39-71-740 and 741, MCA (1983). However, through case law, it has always been recognized that biweekly payment of compensation is the favored means of dispensation of benefits. Lump sum conversion is the exception. Laukaitis v. Sisters of Charity of Leavenworth, (1959), 135 Mont. 469, 342 P.2d 752. The rationale behind this conclusion is that workers’ compensation benefits are a substitution of wages and therefore should be paid in the same manner as wages, on a regular biweekly basis. In light of this rationale, it has been held that settlements are only granted where there is outstanding indebtedness, pressing need or where the best interests of the claimant, his family and the general public will be served. Willoughby v. General Accident Fire and Life (1980), 187 Mont. 253, 257, 609 P.2d 700, 702.

The Workers’ Compensation Court determined that a lump sum payment would not be in Mr. Reinhard’s best interest. It based this determination on testimony from two doctors, Mr. Reinhard’s accountant, his stockbroker and from testimony of Mr. Reinhard himself.

Dr. Stratford, a psychiatrist who examined Mr. Reinhard, testified that a lump sum payment would not by itself alleviate Mr. Rein-hard’s problems with depression. Rather, according to Dr. Stratford’s testimony, Mr. Reinhard’s problems with the Workers’ Compensation Division are not a cause of his mental health problems, but, instead, are the focus of his depression. He also expressed concern over Mr. Reinhard’s ability to successfully manage large sums of money while he is in such a precarious mental state.

Dr. Shea, Mr. Reinhard’s treating clinical psychiatrist, testified that a lump sum would probably hasten his recovery from depression. However, he also stated that settlement of the case either way would probably decrease the claimant’s depression and that continuation of biweekly benefits would not necessarily increase it. Both Dr. Shea and Dr. Stratford agreed that the most beneficial treatment for Mr. Reinhard is continued treatment with anti-depressant medication and psychotherapy, and that a lump sum payment, by itself, would at the most have a very minimal affect upon Mr. Reinhard.

The lower court also determined, based upon testimony from Mr. Reinhard’s accountant, that the business proposal is fraught with potential risks. In particular the court found that the feasibility of the project was doubtful in light of the depressed real estate market in Missoula. It also found that Mr. Reinhard’s health problems, would make it difficult for him to work with his tenants and withstand the stress which naturally accompanies apartment management.

Finally, the court determined there was no “pressing need” which would entitle Mr. Reinhard to a lump sum conversion. The court pointed out that his monthly income of $4,000.00 exceeded his living expenses by nearly $3,000.00 a month. In addition, with a net worth of nearly $200,000.00,' including his present home which is worth approximately $69,900.00, Mr. Reinhard has enough financial resources to purchase a new home. In short, the Workers’ Compensation Court found that there was no “outstanding indebtedness or pressing need” which would necessitate a lump sum conversion.

The lower court’s findings of fact and conclusions of law are fifteen pages long, reasoned and thought out. Although its findings may be based upon conflicting evidence, this Court’s function on review is confined to determining whether there is substantial evidence to support its findings. Kuenning v. Big Sky of Montana (1988), [231 Mont. 1,] 750 P.2d 1091, 45 St.Rep. 383. We find that the Workers’ Compensation Court’s decision is supported by substantial evidence, is not an abuse of discretion and its judgment is affirmed.

JUSTICES HARRISON, WEBER and BARZ concur.

JUSTICE SHEEHY,

dissenting:

The statute on lump-sum settlements as in existence at the time of the injury to this employee read as follows:

“39-71-741. Compromise Settlements and Lump-Sum Payments-Division Approval Required.
“The biweekly payments provided for in this chapter may be converted, in whole or in part, into a lump-sum payment. Such conversion can only be made upon the written application of the injured worker or the worker’s beneficiary, with the concurrence of the insurer, and shall rest in the discretion of the division, both as to the amount of such lump-sum payment and the advisability of such conversion. The division is hereby vested with full power, authority and jurisdiction to allow and approve compromises of claims under this chapter. All settlements and compromises of compensation provided in this chapter are void without the approval of the division. Approval of the division must be in writing. The division shall directly notify every claimant of any division order approving or denying a claimant’s settlement or compromise of a claim. A controversy between a claimant and an insurer regarding the conversion of biweekly payments into a lump-sum is considered a dispute for which the Workers’ Compensation Judge has jurisdiction to make a determination.”

Nothing in the foregoing statute precludes the lump-sum settlement requested here by this employee, and the strictures which the Workers’ Compensation Court placed upon the proposed lump-sum settlement are not based on any statute. They are not based on decided cases in this Court either. In Willoughby v. Arthur G. McKee and Company (1980), 187 Mont. 253, 257, 609 P.2d 700, this Court said:

“Lump-sum settlements are only granted where there is ‘outstanding indebtedness,’ ‘pressing need,’ or where ‘the best interests or the claimant, his family and the general public will be served.’ ”

The disjunctive “or” in the foregoing quotation shows that the Workers’ Compensation Court need not have considered “pressing need,” and the only question involved here is whether the proposal would serve the best interests of the claimant, his family and the general public.

We have here a claimant of considerable business acumen. He manages a $200,000 estate well enough to produce a monthly income of $4,000. It is laughable that the business acumen of this claimant is disparaged by the State Compensation Insurance Fund, whose present cash flow problems are probably the reason for the refusal of this lump-sum proposal, problems which in my judgment are the result of mismanagement and bungling through the past 15 years.

It seems in this case that the public would be well served, as well as the claimant, by permitting him to take a commutation of his future payments in a lump-sum, so that the claimant could use his business sense to better himself and his community through prudent economic investment. He has demonstrated know-how, which is more than we can say of his opponents.


author: CHIEF JUSTICE TURNAGE JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TONI LEA OTTWELL, Defendant and Appellant.
    No. 89-428.
    Submitted on Briefs Nov. 2, 1989.
    Decided Dec. 22, 1989.
    784 P.2d 402.
    JUSTICE SHEEHY dissented and filed opinion.
    Michael Donahoe, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Mike McGrath, County Atty., Carolyn Clemens, Deputy, Helena, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Toni Lea Ottwell appeals the decision of the First Judicial District Court, Lewis and Clark County, revoking the appellant’s ten-year suspended sentence after her flight from probation. We affirm.

The appellant raises the single issue of whether the District Court erred in failing to hold that her flight from probation was justified under the necessity doctrine when the appellant alleged that her foster parent coerced her into a sexual relationship.

In December of 1987, Ottwell escaped from the Mountain View School girls correctional facility near Helena, Montana. When school officials attempted to return Ottwell to the school, she threatened them with a handgun. Ottwell was convicted of felony assault and given a ten-year suspended sentence. See State v. Ottwell (Mont. 1989), [239 Mont. 150,] 779 P.2d 500, 46 St.Rep. 1580 (upholding Ottwell’s felony assault conviction).

The District Court placed a number of conditions on Ottwell’s, suspended sentence including ten years probation, psychological therapy, a period of intensive supervision, placement in a Billings, Montana, foster home, continued high school education, and general compliance with the laws. Initially, Ottwell conformed to these conditions and her supervision was gradually relaxed until she was allowed to move out of the foster home. In March of 1989, probation officers discovered that Ottwell had absconded from her Billings residence; she had been arrested in Oakland, California, for prostitution.

On her return to Montana, the District Court revoked the suspended sentence and sentenced Ottwell to the Women’s Correctional Facility with the recommendation that she be transferred to the Life Skills Center in Billings, Montana.

The sentencing judge is authorized in his discretion to revoke a suspended sentence. Section 46-18-203(1), MCA. In reviewing the use of that discretion, the standard is whether the record contains substantial, credible evidence supporting the sentencing court’s decision. State v. Lange (Mont. 1989), [237 Mont. 486,] 775 P.2d 213, 215, 46 St.Rep. 991, 994.

In this case, the record contains considerable uncontested evidence that Ottwell violated her probation conditions. She left her Billings residence for Oakland without permission from her probation officer. She failed to remain in school. She failed to comply with the law by soliciting prostitution in California.

Ottwell argues that, even in light of this evidence, the District Court should not have revoked her suspended sentence because she absconded from Billings out of necessity. Ottwell alleges that while in the foster home, the male guardian coerced her into a sexual relationship which continued after she moved into her own residence. She contends that had she not complied with his demands, the guardian would have forced her return to jail.

The parties apparently disagree on what defense the appellant is raising. Ottwell calls it necessity and relies on the common law rather than the Montana statutes. The State counters that the alleged defense is that of compulsion, as recognized in Montana law under § 45-2-212, MCA.

Some disagreement over the proper analysis is not surprising considering the present state of this area of Montana law. As with other jurisdictions, Montana has referred to this type of defense by a variety of names. Section 45-2-212, MCA (“compulsion”); State v. Pease (Mont. 1988), [233 Mont. 65,] 758 P.2d 764, 768, 45 St.Rep. 1296, 1300 (“necessity,” “duress,” and “compulsion”), cert. den. _, U.S. _, 109 S.Ct. 845, 102 L.Ed. 2d 976, (1989); State v. Strandberg (1986), 223 Mont. 132, 135, 724 P.2d 710, 712 (“justification”); State v. Owens (1979), 182 Mont. 338, 347, 597 P.2d 72, 77 (“compulsion”); State v. Stuit (1978), 176 Mont. 84, 88, 576 P.2d 264, 266 (“justification” and “necessity”). In two cases, this Court relied on the common law defense. Strandberg, 223 Mont. at 135, 724 P.2d at 712-13; Stuit, 176 Mont. at 88, 576 P.2d at 266. In another case, we applied the compulsion statute. Owens, 182 Mont. at 347, 597 P.2d at 77. In the most recent case we used both. Pease, 758 P.2d at 768, 45 St.Rep. at 1300.

Traditionally, courts recognized necessity as one of only two defenses of this type, the other being duress. Both types excused criminal conduct when the defendant acted under the threat of imminent death or serious bodily harm to himself or another. Duress applied when the threat was from another human being. Necessity applied when the threat was from physical forces. United States v. Bailey (1980), 444 U.S. 394, 409-10, 100 S.Ct. 624, 634, 62 L.Ed.2d 575, 590; see also 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law, §§ 5.3(a) and 5.4(a). Thus, duress could be a defense to bank robbery for a taxi driver who drove the robber to the bank with a gun pointed at his head. People v. Merhige (1920), 212 Mich. 601, 180 N.W. 418, 422. Necessity could be a defense to prison escape when the prison was on fire. People v. Whipple (1929), 100 Cal.App. 261, 279 P. 1008, 1009.

The necessity defense has also been characterized by situations in which the defendant faced a choice between two evils. In this type of case, defendants argued that they were justified in breaking the law to prevent a greater harm than the law was intended to cure. Thus, in one case, the defendants claimed necessity as a defense to charges of smuggling Laetrile into the United States to treat cancer patients. United States v. Richardson (9th Cir. 1978), 588 F.2d 1235, 1239, cert. den. 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636. In another, a defendant who felt a moral obligation to frustrate United States military efforts in Southeast Asia claimed necessity as a defense to charges of burning Selective Service System records. United States v. Simpson (9th Cir. 1972), 460 F.2d 515, 517-18.

Modern cases and statutes tend to abandon all distinctions characterizing necessity, duress, and other similar defenses. See Bailey, 444 U.S. at 410, 100 S.Ct. at 634, 62 L.Ed.2d at 590. Montana’s compulsion statute follows this trend.

“A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct.”

Section 45-2-212, MCA.

The statute contains no distinctions based on compulsion by human beings, compulsion by natural forces, or by choices between lesser evils. It brings together all of the related defenses, by whatever name called, under a single codification.

One apparent exception to the statutory amalgamation is still found in Montana criminal case law. When dealing with prisoners charged with escape, this Court has not applied the compulsion statute. Instead, we have relied on a more appropriate version of the necessity doctrine derived from the California case of People v. Lovercamp (1974), 43 Cal.App.3d 823, 118 CaL.Rep. 110. In State v. Stuit we approved jury instructions derived from Lovercamp and held that justification is an affirmative defense which the defendant must prove by a preponderance of the evidence. Stuit, 176 Mont. at 89, 576 P.2d at 267. Most recently, in State v. Strandberg, [(1986), 223 Mont. 132,] we restated the essential elements of a necessity-of-escape defense:

“1) The defendant was faced with a specific threat of death, or substantial bodily injury in the immediate future.
“2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory.
“3) There is not time or opportunity to resort to the courts.
“4) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”

Strandberg, 223 Mont. at 135, 724 P.2d at 712-13. To justify an escape under these elements, the defendant must “establish by a preponderance of the evidence that escape is objectively the only viable and reasonable choice available under the circumstances.” Strandberg, 223 Mont. at 135, 724 P.2d at 713. (Emphasis deleted.)

The courts have long recognized that necessity may excuse escape from a prison when warranted by appropriate circumstances. 1 Hale, Pleas of the Crown 611 (1778). In the classic statement of the doctrine, when a prisoner flees a fire, “he is not to be hanged because he would not stay to be burnt.” United States v. Kirby (1868), 7 Wall. 482, 487, 19 L.Ed. 278, 280. Use of the necessity defense in this context is now universally accepted. Bailey, 444 U.S. at 425, 100 S.Ct. at 642, 62 L.Ed.2d at 600 (J. Blackmun dissenting); see also, Annotation, Duress, Necessity, or Conditions of Confinement as Justification for Escape from Prison, 69 A.L.R.3d 678 (1976 & 1989 Supp.).

In Montana, necessity as a defense to prison escapes overlaps significantly with the compulsion statute. The elements of the statute are:

“(1) [The defendant] was compelled to perform the offensive conduct (2) by the threat or menace (3) of the imminent infliction (4) of death or serious bodily harm, and that (5) he believed that death or serious bodily harm would be inflicted upon him if he did not perform such conduct, and (6) his belief was reasonable.”

Owens, 182 Mont. at 347, 597 P.2d at 77. (Emphasis deleted.) Neither distinguishes between natural or human causes. Both impose an objective standard and define the harm faced as death or serious bodily injury. The futility of complaints and resort to the courts required by Strandberg go to the statutory requirement that the defendant was compelled to act and that the resulting actions were objectively reasonable. Under both, the threatened harm must occur imminently or in the immediate future. The statutory and common law defenses differ most markedly in that Strandberg requires the defendant to report immediately to the proper authorities. This is a reasonable additional requirement for prison escapes. An analogous requirement in cases brought under the compulsion statute may be imposed in appropriate circumstances by the legal duty to report a felony. See § 45-7-305, MCA.

We conclude that the compulsion statute and necessity doctrine of Strandberg do not provide mutually exclusive defenses; they are complimentary. Strandberg is merely an application of the compulsion statute tailored to the circumstances of prison escapes. When dealing with prison escapes, therefore, Strandberg provides the appropriate analysis.

The Strandberg elements are also appropriate in the present case; as the appellant argues, absconding from probation is analogous to prison escape. In the context of this review, the question is whether the record contains substantial, credible evidence to establish the elements of the necessity defense by a preponderance. We hold that it does not.

The first element requires that the defendant be faced with a specific threat of death, or substantial bodily injury in the immediate future. Many courts have considered the defense of necessity when the defendant faced sexual abuse. Most often the defendants faced choices between homosexual rape or severe beatings and possible death. See e.g., Lovercamp, 43 Cal.App.3d at 825, 118 Cal.Rep. at 111; People v. Unger (1975), 33 Ill.App.3d 770, 338 N.E.2d 442, 443; 69 A.L.R.3d 678, § 8, supra. Ottwell presented uncontested evidence of a coerced sexual relationship. We need not determine whether that evidence was sufficient to satisfy this element of the necessity defense because Ottwell failed to present any evidence to support the remaining elements.

Ottwell failed to report the alleged sexual coercion even though she had ample opportunity to do so. According to the evidence, she developed a close relationship with her probation officer. On numerous occasions they discussed her home life, including Ottwell’s life with her foster parents. The appellant admits that she never told her probation officer of sexual harassment. She did not report it to the police, the courts, or anyone else. Ottwell also failed to report to the proper authorities once she escaped but instead was arrested for prostitution. Even then, the appellant apparently did not explain her flight by telling Oakland police about the alleged sexual relationship. If the alleged sexual coercion occurred, Ottwell passed up numerous opportunities to remedy the situation short of violating probation.

We hold the record contains sufficient evidence to reject the appellant’s necessity defense and to uphold revocation of her suspended sentence.

Affirmed.

JUSTICES McDONOUGH, WEBER and BARZ concur.

JUSTICE SHEEHY,

dissenting:

I am unwilling to sign an opinion which holds that uncontested evidence of a coerced sexual relationship, without more, is not sufficient to justify a parolee to escape the situation.