author: JUSTICE WEBER CHIEF JUSTICE TURNAGE

text:
    ELSIE S. STORMS, in her capacity as Trustee of EL-CE Storms Trust, Plaintiff and Appellant, v. JOSEPH E. BERGSIEKER; SUSAN NOUCHI; ERLING BIRKLEY; HELEN H. SUTHERLAND; JARED TIPTON WILMARTH; CONNIE M. VOUTIS; A.K. ROSS; JERRY HICKMAN; and DOES I THROUGH X, inclusive, Defendants and Respondents.
    No. 91-331.
    Submitted on briefs Jan. 30, 1992.
    Decided July 28, 1992.
    49 St.Rep. 655.
    835 P.2d 738.
    254 Mont. 130.

      For Appellant: Elsie S. Storms, Pro Se.
    For Defendants and Respondent: Daniel W. Hileman, Murray & Kaufman, and Patrick M. Springer, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

In the Nineteenth Judicial District Court for Lincoln County, plaintiff sued to recover a contribution from the co-owners of an easement covering the replacement cost of a bridge which provided access to the defendants’ properties. The defendants Nouchi, Sutherland and Wilmarth (defendants), moved for a directed verdict. The motion was granted and judgment was entered for the defendants. Plaintiff appeals. We reverse and remand.

The controlling issue is the following:

Did the District Court properly grant a directed verdict for the defendants?

All of the parties to this action are adjacent landowners near Trego, Montana. Access to all of the parties’ properties is by use of an easement road which includes a bridge crossing Fortine Creek. Following is a summary of key facts agreed to by all of the parties as contained in the pretrial order:

1. Construction of the bridge spanning Fortine Creek was started by Cecil H. Storms, husband of the plaintiff on about August 20,1987, and completed on about September 27, 1987.

2. The bridge is located upon the property of the plaintiff trust.

3. Dining the time of bridge construction, the defendants were owners as tenants in common of an easement road which begins at the paved road used by the public known as the Fortine Creek Road, and crosses the plaintiff’s property and Fortine Creek by means of a single lane bridge.

4. As a result of the described court action in Lincoln County, defendants and their spouses on April 3, 1985, obtained a judgment granting them an easement which provided approach to their properties across the Storms property, including the right to use the Fortine Creek bridge.

In the pretrial order the plaintiff contended that the expenditures for labor and materials for construction of the new bridge were reasonable and necessary and amounted to approximately $19,000. She further stated that the previous bridge structure had deteriorated, and therefore, was no longer safe and needed to be replaced. Next, the plaintiff contended that it would be inequitable and unfair and would result in unjust enrichment to allow the defendants to receive an increase in value of their properties as a result of the completion of the bridge project without requiring the defendants to proportionately contribute to the cost of the bridge.

In the same pretrial order the defendants stated that the issue was whether the defendants had been unjustly enriched by construction of the bridge and if so what amount of damages was owed from defendants to the plaintiff.

The District Court stated that the pretrial order superseded the pleadings and would govern the course of the trial.

Plaintiff sought a jury trial. Defendants filed a motion to dismiss the demand for jury trial. The District Court concluded that the basic theory of a claim for unjust enrichment was in equity and concluded that the jury would be retained as an advisory jury only.

Mr. Storms, the husband of the plaintiff, as the one who constructed the bridge, testified as to the deteriorating and unsafe condition of the bridge prior to its 1987 replacement. The uncontradicted evidence also established that Mr. Storms did not contact the three defendants prior to the replacement of the bridge. The evidence also established that the Storms used the bridge on a daily basis while the defendants used the easement much more infrequently as they did not live on their properties.

The evidence submitted by the plaintiffs established that the labor, materials and equipment used for the bridge construction totalled approximately $18,000. After completing the bridge, Mr. Storms sought proportionate contribution from the defendants who refused to pay any part of the cost of replacing the bridge. We also note that under the agreed statement of facts, no party to the action was willing to give up his interest in the easement.

During the jury trial, at the close of the plaintiff’s case, the defendants moved for a directed verdict. Their motion was on the grounds that plaintiff failed to prove an increase in value to the defendants’ properties as a result of the bridge replacement, and thus failed to prove unjust enrichment. The District Court concluded that in an unjust enrichment case, the measure of damages was the value of the defendants’ properties prior to the bridge construction as compared to the value of each of such properties after the bridge construction. The District Court further concluded there had been a failure of proof by the plaintiff to demonstrate such values of defendants’ properties before and after bridge construction and that dismissal therefore was appropriate. The District Court granted the directed verdict for the defendants. The plaintiff moved for a new trial and to set aside the order granting directed verdict. The motion was denied. Plaintiff appeals.

Did the District Court properly grant a directed verdict for the defendants?

Under Rule 52(a), M.R.Civ.P., in all actions tried upon the facts with an advisory jury, “the court shall find the facts specially and state separately its conclusions of law.” That was not done in this case. In both the motion by the defendants and the order by the court, there was no recognition of the advisory status of the jury. Under the circumstances we will review the issue as though a motion for dismissal for failure of proof had been made and judgment entered finding such a failure of proof on the part of the plaintiff.

Plaintiff contends that the District Court and the defendants applied the improper measure of damages for unjust enrichment. Plaintiff relies upon Robertus v. Candee (1983), 205 Mont. 403, 670 P.2d 540.

In Robertus, lessees sued the lessor of farmland on a theory of unjust enrichment and quantum meruit, contending that the lessor benefitted from the lessee’s groundbreaking and farming due to his wrongful eviction of the lessees from the leased land. The Court discussed the theory of unjust enrichment as follows:

The theory of unjust enrichment requires that a person who has been unjustly enriched at the expense of another must make restitution to the other. Restatement of the Law, Restitution § 1;... The measure of this equitable restitution interest is either the quantum meruit value of plaintiff’s labor and materials or the value of the enhancement to the defendant’s property. Restatement of the Law, Contracts 2d § 371;... (Emphasis added).

Robertus, 670 P.2d at 542.

The holding of the Robertus Court is that the measure of the amount to which a plaintiff is entitled on an equitable restitution theory is either the quantum meruit value of the plaintiff’s labor or materials, or the value of the enhancement to the defendant’s property. The Robertus Court also was careful to point out that “it is only so much of the enrichment which is unjust that may be awarded the plaintiff.”

We conclude that the above cited Robertus rule is controlling in the present case. We further conclude that the measure of the unjust enrichment as to any of the three defendants is measured either by the quantum meruit value of plaintiff’s labor and materials furnished in the bridge construction, or in the alternative, the value of the enhancement to the defendants’ properties. We do not find it necessary to evaluate the determination by the District Court that the plaintiff failed to prove the enhancement in value to the defendant’s properties. The record does demonstrate that the plaintiff presented evidence as to the market value of the labor, materials and services expended in replacing the bridge. We therefore conclude that a directed verdict on the basis of failure of proof was not appropriate.

Under the theory of unjust enrichment, the obligation of the respective parties is based upon the proportionate benefit to each in connection with bridge construction. The determination of this proportionate benefit -will be an issue for consideration by the District Court.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, HUNT, McDONOUGH, TRIEWEILER and GRAY concur.

CHIEF JUSTICE TURNAGE

specially concurring:

I specially concur in the majority opinion. I do so primarily because the case is being sent back for a new trial.

My concern is that, under the facts before this Court, I do not believe that the plaintiff is entitled to claim the theory of unjust enrichment.

As the majority opinion states, the defendants were forced to seek judicial intervention in order to establish their right to the easement providing ingress and egress to their properties over the road that crosses the plaintiff Storms’ property. After defendants obtained a judgment establishing their easement, the husband of plaintiff Elsie S. Storms, without consultation with the defendants, proceeded on his own volition to repair or replace the bridge, which Storms used on a daily basis and which was used infrequently by defendants.

Storms, in my opinion, was a volunteer in the repair and replacement of the bridge and, as such, should not be entitled to make a claim of unjust enrichment. If this should become the accepted law of Montana, it would be an invitation for a wealthy individual to practice mischief and harassment upon neighbors less economically privileged by officiously making improvements on property and then claiming in a lawsuit that restitution for unjust enrichment should be paid by those neighbors.

A person who officiously confers a benefit upon another is not entitled to restitution therefor.

Restatement of Restitution, § 2 (1937). Also,

A person who, incidentally to the performance of his own duty or to the protection or improvement of his own things, has conferred a benefit upon another, is not thereby entitled to contribution.

Restatement of Restitution, § 106 (1937). The point was made that Storms herself used the bridge on a daily basis.

In Wendover Road Prop. Owners Ass’n. v. Kornicks (Ohio App. 1985), 502 N.E.2d 226, defendant sought review of a summary judgment against him on a complaint that he was unjustly enriched by road, sewer, and water improvements made by plaintiff property owners association. In reversing and granting final judgment to defendant, the Court of Appeals of Ohio stated:

The association made the improvements to benefit its participants and did so voluntarily. The defendant did not consent. Nor was there any mistake, emergency, or compulsion demonstrated.
[Defendant] refused to participate in the project. Nor can it be argued that the improvements amounted to a duty imposed by law.
Absent any agreement or statutory authority, we conclude that the association may not recover for improvements officiously made by the association.

Wendover, 502 N.E.2d at 231.

In Dinosaur Development, Inc. v. White (Cal.App. 1 Dist. 1989), 265 Cal.Rptr. 525, plaintiff’s plan for a subdivision was approved by local government on the condition that plaintiff must construct a road from the nearest public thoroughfare to defendants’ adjacent land, which was otherwise landlocked. Plaintiff sought to recover from defendant adjacent landowners under a theory of unjust enrichment. The California Court of Appeals, First District, held:

If plaintiff complies with the ... condition for approval of the subdivision, defendants will benefit. But because the benefit will be incidental to plaintiff’s proposed development, it will not be unjust enrichment requiring defendants to make restitution.

Dinosaur, 265 Cal.Rptr. at 530. The court affirmed an order dismissing the complaint.

On retrial of this matter, the claim of unjust enrichment should be a major concern.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    THOMAS GERLACH, Petitioner and Appellant, v. CHAMPION INTERNATIONAL, Employer, Defendant and Respondent.
    No. 91-272.
    Submitted on briefs Jan. 9, 1992.
    Decided Aug. 6, 1992.
    49 St.Rep. 670.
    836 P.2d 35.
    254 Mont. 137.

      For Petitioner and Appellant: Rex Palmer, Attorneys, Inc., Missoula.
    For Defendant and Respondent: Bradley J. Luck, Garlington, Lohn & Robinson, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

This is an appeal from a decision of the Workers’ Compensation Court filed April 30, 1991, denying claimant entitlement to permanent partial disability benefits under the Workers’ Compensation Act. We affirm.

The sole issue on appeal is whether the Workers’ Compensation Court erred in determining that claimant does not suffer a disability as a result of an industrial injury which occurred in the summer of 1986.

Claimant Thomas Gerlach (Gerlach) has worked in the wood product industry for 25 years. Gerlach began his employment with Intermountain Lumber Mill which subsequently was purchased by Champion International. During the year prior to the 1986 events which give rise to this action, he worked as a trimmer operator, a position requiring Gerlach to engage in repetitive upper body movements.

By 1984, Gerlach was experiencing physical problems involving his neck, and back due to his work and sought help from a chiropractor. The chiropractor diagnosed Gerlach with “acute myositis” or acute muscular discomfort. The pain gradually increased and, in 1985, Gerlach sought medical treatment from his family physician, who found neck and shoulder aching and chronic back problems.

In late spring or early summer of 1986, Champion International modified its operation to increase lumber production. Gerlach worked the modified job intermittently over an eight to nine week period. The strain to Gerlach’s arms and shoulders increased when he worked the modified job because he was required to work two lines simultaneously instead of one. Gerlach shortly reached a point at which his right arm remained in constant pain.

Gerlach sought medical assistance from Dr. Donald Nevin during July of 1986. Dr. Nevin diagnosed and treated Gerlach’s tendinitis of the right shoulder and elbow. Geriach subsequently filed a claim for compensation with Champion.

Dr. Nevin continued to care for Geriach. After recommending several weeks off work so that the right elbow could be completely immobilized, he referred Geriach to Dr. Mark Rotar, an orthopedic surgeon. Dr. Rotar saw Geriach three times, confirming Gerlach’s right elbow tendinitis.

Geriach obtained physical therapy for his tendinitis in October of 1986. Because the physical therapy failed to completely alleviate Gerlach’s right arm discomfort, Dr. Rotar prescribed a period off work for Geriach. As a result, Geriach did not work from November 1986 until mid-January of 1987. Champion paid Geriach total disability and medical benefits for this period of time without specifying whether compensation was made under Montana’s Occupational Disease Act or Workers’ Compensation Act.

Between Gerlach’s return to work in January of 1987 and the Champion mill closure in 1990, Geriach worked continuously, albeit in less repetitive jobs. He missed no work due to his physical condition nor did he complain to his employer of any physical problems. The record reflects that Geriach did not seek or receive any medical treatment for his elbow, arm and shoulder problems following his return to work in 1987. Geriach is currently employed by Montana Wood Specialties working a variety of jobs.

Geriach and Champion could not agree whether Gerlach’s claim arose under the Workers’ Compensation Act or the Occupational Disease Act. Geriach filed a claim seeking permanent partial disability benefits under the Workers’ Compensation Act. The case was heard on November 14, 1990.

The Workers’ Compensation Court concluded that Geriach does not suffer a disability as a result of an industrial injury in the summer of 1986. According to the court, overwhelming evidence established that Geriach suffered from an overuse syndrome as early as 1984 and that he continues to suffer from that syndrome; such a condition is an occupational disease rather than a compensable disability under the Workers’ Compensation Act. The court determined that Geriach did not prove that his problems with his arms, shoulders, back and neck were casually related to the events of 1986.

At the Workers’ Compensation hearing, Geriach testified that he is presently in constant pain in his neck, shoulders, and elbows, with the majority of his pain centered in the shoulder area. Gerlach’s testimony did not connect his current physical problems to the events of1986. Indeed Gerlach testified in his deposition to the gradual onset of the pain form which he continues to suffer:

Q. And so from the onset of the neck pain in ’84, it gradually got worse until in July of ’86, it involved both arms, both shoulders and the neck, and you went to see Dr. Nevin?
A. Yes.
Q. And that’s when you filed your claim?
A. Yes.
Q. And in retrospect, you attribute the totality of these upper extremity problems to those numbers of years of repetitive activity beginning with Intermountain and then into the Champion operation?
A. Yes.

The three doctors who testified by way of deposition agreed that Gerlach suffered from an overuse syndrome prior to the spring of 1986. Following the 1986 work increase, Gerlach first saw Dr. Donald Nevin who diagnosed his condition at that time as right elbow tendinitis, consistent with an overuse syndrome. He treated Gerlach and then referred him to an orthopedic surgeon, Dr. Mark Rotar. Dr. Rotar confirmed Dr. Nevin’s diagnosis, treated Gerlach for right elbow tendinitis, “almost always an overuse problem,” and prescribed a period of complete inactivity for the elbow. Dr. Rotar stated in his deposition that an overuse syndrome is not an unusual condition for someone who has worked many years in repetitive activity in the wood products industry. Dr. Peggy Schlesinger, who specializes in arthritic conditions including overuse syndrome, testified that she could not conclude that Gerlach’s present physical condition derived from any specific events of 1986.

Our standard of reviewing a decision of the Workers’ Compensation Court is to determine if there is substantial evidence to support the findings and conclusions of that court. When there is substantial evidence to support the Workers’ Compensation Court, this Court cannot overturn the decision. Wood v. Consolidated Freightways, Inc. (1991), 248 Mont. 26, 28, 808 P.2d 502, 504.

The Workers’ Compensation Court concluded that Gerlach does not suffer a disability as a result of an industrial injury in the summer of 1986. In this case, Gerlach must prove by a preponderance of the credible evidence that 1.) he suffered an injury arising out of and in the course of his employment; and 2.) the injury was the proximate cause of his disabling condition. Frost v. Anaconda Company (1985), 216 Mont. 387, 701 P.2d 987. Substantial evidence exists to support the Workers’ Compensation Court’s determination that Gerlach’s current condition did not result from the 1986 tendinitis. As stated above, the physicians who testified stated that Gerlach was treated for right elbow tendinitis in 1986, but had suffered a prior overuse syndrome. Neither the doctors nor Gerlach could directly attribute Gerlach’s present condition involving his neck, shoulders, arms and back to the events of 1986; all stated that prior to the 1986 tendinitis, Gerlach had suffered pain in the same body parts as now afflict him. Given the record before the causation element, we need not determine whether the 1986 tendinitis met the other statutory requirements for an injury under § 39-71-119(1), MCA (1985).

Gerlach relies on Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 615 P.2d 863, and Kraft v. Flathead Valley Labor and Construction (1990), 243 Mont. 363, 792 P.2d 1094; his reliance is misplaced. Hoehne and Kraft involved determinations of whether a compensable and defined injury under the Workers’ Compensation Act had occurred. In the case at bar, the casual connection between Gerlach’s job activity and his 1986 tendinitis has been conceded and the tendinitis has been fully compensated by Champion. The sole issue necessary for resolution of this case is whether the compensable 1986 tendinitis caused Gerlach’s current physical problems.

Taken as a whole, the medical evidence and Gerlach’s own testimony establish that the 1986 events resulted in right elbow tendinitis, that the condition was treated successfully by the time of Gerlach’s return to work in 1987, and that it did not recur. Stated differently, the evidence establishes that Gerlach’s current overuse syndrome existed as early as 1984 and was not caused by and does not result from the increased work activity in 1986.

We conclude that substantial credible evidence exists to support the Workers’ Compensation Court’s determination that Gerlach does not suffer a disability as a result of an industrial injury which occurred in the summer of 1986. We hold that the Workers’ Compensation Court did not err.

Affirmed.

JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.


text:
    ROBERTA KENYON, Plaintiff and Appellant, v. STILLWATER COUNTY, MONTANA, a political subdivision organized and existing under the laws of the State of Montana, and C. ED LAWS, Defendants and Respondents.
    No. 91-318.
    Submitted on briefs Nov. 7, 1991.
    Decided Aug. 6, 1992.
    49 St.Rep. 673.
    835 P.2d 742.
    254 Mont. 142.

      For Plaintiff and Appellant: Rosemary C. Boschert, Boschert Law Firm, Billings.
    For Defendants and Respondents: Stephen J. Lehman, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Roberta Kenyon appeals the Thirteenth Judicial District Court’s grant of summary judgment to respondents on her claims of age discrimination, wrongful discharge and breach of the covenant of good faith and fair dealing. We affirm in part, reverse in part, and remand.

The issues on appeal are:

1. Did the District Court err in granting summary judgment to C. Ed Laws individually on the wrongful discharge claim?

2. Did the District Court err in granting summary judgment on the age discrimination claim?

3. Did the District Court err in considering whether Kenyon’s termination was for good cause?

4. Did the District Court err in granting summary judgment on Kenyon’s wrongful discharge claim?

5. Did the District Court err in determining that respondents were not immune pursuant to § 2-9-111, MCA?

Factual and Procedural Background

Roberta Kenyon was employed as a secretary by the law office of Blenkner and Blenkner in Columbus, Montana, on May 5, 1969. During her early employment, one of her employers, William Blenkner, was also the part-time County Attorney of Stillwater County, Montana (the County). Kenyon was employed part-time by the law firm and part-time by Stillwater County, and paid separately by each entity.

In 1974, William Blenkner and C. Ed Laws formed a partnership for the practice of law. At that time, Blenkner was part-time County Attorney and Laws was Deputy County Attorney. Kenyon continued in her bifurcated duties between the firm and the County. Eventually, Blenkner and Laws switched roles, with Laws becoming County Attorney and Blenkner becoming Deputy Comity Attorney.

By 1977, the County’s legal workload increased to such an extent that Kenyon became a full-time county employee. Her salary and benefits were paid totally by the County. Consequently, the law firm employed other secretarial employees who were paid solely by the firm, except for those occasions when they worked on County business in Kenyon’s absence.

In 1988, Laws became full-time County Attorney. He informed Kenyon on May 2,1988, that the law firm was dissolving and that he would employ Sandra Fox as his secretary; Kenyon would work for Blenkner in private practice. As a result, Kenyon’s employment with the County ended June 30, 1988. After Blenkner became too ill to employ Kenyon on a full-time basis, Kenyon approached the county commissioners for a job with the County that would provide her with at least a 32-hour work week. The County offered Kenyon a part-time position, but she declined it. Thereafter, she worked on various projects for the County on a part-time basis.

In the fall of 1988, Kenyon filed a preliminary inquiry with the Montana Human Rights Commission, alleging age discrimination by the Stillwater County Attorney. She subsequently filed a lawsuit against the Comity and Laws and the Human Rights Commission dismissed her administrative action.

Kenyon’s three count complaint was filed on April 27, 1989. The complaint alleged: age discrimination based on her termination and replacement by a younger woman; wrongful discharge based on termination without just cause and in violation of written personnel policies; and breach of the covenant of good faith and fair dealing. Respondents moved for summary judgment based on § 2-9-111, MCA, immunity regarding the wrongful discharge claim and the absence of any genuine issue of material fact as to Kenyon’s age discrimination claim.

The District Court granted summary judgment to respondents. It concluded, in pertinent part, that: (1) § 2-9-111, MCA, immunity did not apply; (2) Laws was not individually liable; (3) Kenyon did not establish a prima facie case of age discrimination; and (4) Kenyon was terminated for good cause and, therefore, could not prevail on her wrongful discharge claim. Kenyon’s subsequent Motion to Amend or Alter Judgment was denied and this appeal followed.

Standard of Review

Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509. “[A] party moving for summary judgment has the burden of showing a complete absence of any genuine issue as to all facts deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law.” Cereck, 195 Mont. at 411, 637 P.2d at 511 (citing cases). If the moving party meets its burden, then the burden shifts to the non-moving party to show that issues of fact exist. First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 794 P.2d 679.

I.

Did the District Court err in granting summary judgment to C. Ed Laws individually on the wrongful discharge claim?

As noted above, the District Court denied summary judgment to the County and Laws on their § 2-9-111, MCA, immunity argument, concluding, as to Laws, that he was not an agent of the board of county commissioners. The court went on to determine that, as an elected officer of the County, Laws was an agent of the County acting within the scope of his authority; on this basis, it granted summary judgment to Laws individually on Kenyon’s wrongful discharge claim. We agree with the grant of summary judgment to Laws, but for reasons different from those stated by the District Court.

Governmental entities in Montana are subject to liability for their own wrongful conduct and that of their employees acting within the scope of their duties. Section 2-9-102, MCA (1987). For purposes of the liability statutes, elected county officials are employees of the county. Section 2-9-101, MCA (1987). Absent consideration of exceptions not at issue here, where an action is brought against a county based on actionable conduct by an employee, the employee is immune from individual liability for the conduct if the county acknowledges that the conduct arose out of the course and scope of the employee’s official duties. Section 2-9-305, MCA (1987). This is precisely the situation before us.

Kenyon’s action is based on Laws’ act of discharging her as his secretary when he became full-time County Attorney for Stillwater County. As an elected official, it is clear that Laws is an employee of the County for liability purposes under Montana statutes. Furthermore, both Laws and the county commissioners agree that Laws was acting within the scope of his official duties as County Attorney when he discharged Kenyon.

The County was named as a defendant on the basis of its liability for Laws’ conduct within the scope of his duties under § 2-9-102, MCA (1987). Given the acknowledgement by the commissioners that the conduct on which the action is based arose out of the course and scope of Laws’ official duties, it is clear that Laws himself is immune from liability under § 2-9-305(5), MCA (1987).

While the District Court reached the same result via a different analysis, we will uphold a court ruling if it is correct, regardless of the reasons given below for the result. District No. 55 v. Musselshell County (1990), 245 Mont. 525, 802 P.2d 1252. We hold, therefore, that the District Court did not err in granting summary judgment to C. Ed Laws individually on the wrongful discharge claim.

II.

Did the District Court err in granting summary judgment on the age discrimination claim?

Kenyon alleged age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., on the basis that she was replaced by a younger woman. She argues that summary judgment is inappropriate on her age discrimination claim because genuine issues of material and disputed fact exist as to the reasons for her termination. Respondents contend that no genuine issues of material fact exist in that Kenyon failed to present any facts relating her discharge to discrimination based on age.

The District Court concluded that respondents had provided facts showing a nondiscriminatory reason for Kenyon’s termination — poor work performance — and that Kenyon had failed to respond with facts showing that respondents were motivated by a discriminatory reason for her discharge. We agree.

In McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, the United States Supreme Court allocated the parties’ respective burdens in an action based on racial discrimination. That allocation has been adopted for, and applied to, claims arising under the ADEA. Steckl v. Motorola, Inc. (9th Cir. 1983), 703 F.2d 392.

In the context of a summary judgment motion in an ADEA action, the plaintiff need only adduce facts which, if believed, support a reasonable inference that he or she was denied an employment opportunity because of discriminatory age criteria. Foster v. Arcata Assoc., Inc. (9th Cir. 1985), 772 F.2d 1453. If that burden is met, the employer must rebut the inference of discrimination with evidence of legitimate nondiscriminatory reasons the plaintiff was not hired or was terminated; upon such a showing, the burden shifts back to the employee to demonstrate with specific facts that the employer’s explanation is a pretext. Foster, 772 F.2d at 1459, 1460.

In the present case, it is clear that Kenyon was in the protected age class, met the minimum job qualifications, and was discharged by Laws and replaced by a younger woman. Under Foster, this evidence is sufficient to support a reasonable inference of age discrimination. In support of their motion for summary judgment, respondents then had the burden of showing legitimate nondiscriminatory reasons for Kenyon’s termination.

Laws’ affidavit established that he had had problems with Kenyon’s work performance, number of absences, and time spent on nonprofessional duties over a long period of time. In addition, Laws provided documentation that Kenyon was on probation at one time for her poor work performance. Respondents also offered parts of Kenyon’s deposition in which she admitted that Laws’ dissatisfaction with her was apparent by his yelling at her on almost a daily basis. This evidence was sufficient to rebut the inference of discrimination raised by Kenyon.

Kenyon subsequently failed to present specific facts, as required by Foster, indicating that Laws’ explanation for her dismissal was a pretext. She relied entirely on the conclusory assertions of discrimination contained in her affidavit. Kenyon having failed to raise a genuine issue of material fact as to her age discrimination claim, we hold that the District Court did not err in granting summary judgment to respondents on Kenyon’s age discrimination claim.

III.

Did the District Court err in considering whether Kenyon’s termination was for good cause?

As discussed above, respondents’ motion for summary judgment was based on § 2-9-111, MCA, immunity regarding the wrongful discharge claim and lack of genuine issues of material fact on the age discrimination claim. The District Court granted summary judgment to respondents on the age discrimination claim, concluded that immunity under § 2-9-111, MCA, did not apply, and went on to grant summary judgment to Laws and the County on the wrongful discharge claim based on its determination that Kenyon was terminated for good cause as defined by § 39-2-903(5), MCA, and pursuant to § 39-2-904, MCA. Kenyon argues that the court erred in ruling on good cause under the Wrongful Discharge from Employment Act.

The District Court’s good cause discussion and conclusion followed immediately upon its consideration of Laws’ long-term dissatisfaction with Kenyon’s work performance in the context of the age discrimination claim. The court concluded that Laws’ difficulties with Kenyon’s work performance constituted good cause for her termination under § 39-2-903(5), MCA.

The District Court correctly noted that respondents’ motion was for summary judgment on all claims, not merely partial summary judgment. It determined that Kenyon had the burden of raising a genuine issue of material fact in response to the motion. The record reflects, however, that respondents’ motion and supporting arguments on the wrongful discharge claim differed significantly from those relating to the age discrimination claim. Respondents premised their motion on the former on entitlement to judgment as a matter of law by virtue of § 2-9-111, MCA, immunity; as discussed above, the motion on the latter was premised on an absence of genuine issues of material fact.

The good cause issue as it related to the wrongful discharge claim was not raised or argued by either party. The court was bound by the issues presented to it. Custody of C.S.F. (1988), 232 Mont. 204, 208, 755 P.2d 578, 581. By granting summary judgment on the basis of 8m issue not before it, the court effectively denied Kenyon notice and an opportunity to be heard on the issue. Hereford v. Hereford (1979), 183 Mont. 104, 108, 598 P.2d 600, 602. We conclude that the District Court improperly considered good cause and hold, therefore, that it erred in granting summary judgment on the basis of good cause as defined in § 39-2-903(5), MCA.

IV.

Did the District Court err in granting summary judgment on Kenyon’s wrongful discharge claim?

Kenyon’s wrongful discharge claim based on a failure to follow the County’s written personnel policies was not addressed in respondents’ motion for summary judgment. Respondents first mentioned the personnel policies in their final brief in support of their motion for summary judgment and only in the context of their immunity argument.

Following the District Court’s grant of summary judgment based partially on good cause, Kenyon sought to preserve her wrongful discharge claim based on a failure to follow written personnel policies by way of a motion to alter or amend the judgment. At the hearing on the motion, Kenyon was denied the opportunity to enter into evidence written personnel policies of the County which she asserted were in force and effect at the time of her termination.

As the parties moving for summary judgment, respondents bore the burden of establishing that no genuine issues of material fact existed and that they were entitled to a judgment as a matter of law on Kenyon’s wrongful discharge claim. Their only argument on that claim was that they were entitled to judgment as matter of law by virtue of § 2-9-111, MCA, immunity. The court rejected that argument. Respondents did not adequately raise or address the facts relating to the claim of wrongful discharge based on a failure to follow written personnel policies in their motion for summary judgment; therefore, they did not meet their burden on this issue.

It is clear from the record of the hearing on Kenyon’s motion to alter or amend, and from the parties’ arguments on appeal, that disputed issues of material fact exist relating to Kenyon’s wrongful discharge claim. The parties argue the existence of different written personnel policies applicable to Kenyon’s termination. This dispute goes to the very heart of her wrongful discharge claim. Due to the manner in which the proceedings unfolded in the District Court, this fundamental dispute has not been properly addressed by the parties or that court.

We hold that the District Court erred in granting summary judgment on Kenyon’s wrongful discharge claim.

V.

Did the District Court err in determining that respondents were not immune pursuant to § 2-9-111, MCA?

Respondents assert that the District Court erred in determining that they were not immune from suit under § 2-9-111, MCA. In the event we find that genuine issues of material fact remain on Kenyon’s claims, they request that we affirm the grant of summary judgment on the basis of the statutory immunity.

Rule 14, M.R.App.R, provides that a party may cross-appeal a ruling, order or proceeding of the trial court made against it and affecting its substantial rights. Thus, in order to have the issue of statutory immunity reviewed by this Court, respondents were required to file a cross-appeal. Rouse v. Anaconda-Deer Lodge County (1991), 250 Mont. 1, 817 P.2d 690. They did not do so. The immunity issue not being properly before us, we will not address it.

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

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


author: JUSTICE HUNT

text:
    MARGARET E. HANSEN, Plaintiff and Appellant, v. CURTIS HANSEN and HAUGEN’S, INC., Defendants and Respondents.
    No. 91-487.
    Submitted on briefs Feb. 20, 1992.
    Decided Aug. 6, 1992.
    49 St.Rep. 677.
    835 P.2d 748.
    254 Mont. 152.

      For Plaintiff and Appellant: Loren J. O’Toole II, O’Toole & O’Toole, Plentywood.
    For Defendants and Respondents: Donna M. Trotter, Winkjer, McKennett, Stenehjem, Murphy & Reierson, Williston, North Dakota.
   JUSTICE HUNT

delivered the opinion of the Court.

Plaintiff and appellant Margaret E. Hansen brought suit against her son, Curtis Hansen, following a dispute in the operation of the family farm and ranch. Curtis counterclaimed. Margaret appeals from a jury verdict rendered in the Fifteenth Judicial District, Roosevelt County. We affirm.

We phrase the issues before the Cotut as follows:

1. Was the jury verdict supported by substantial credible evidence?

2. Was it an abuse of discretion for the District Court to admit into evidence respondent’s Exhibit P?

3. Should the District Court have granted a default judgment against Haugen’s, Inc.?

Appellant Margaret Hansen has lived on the family farm and ranch operation, located near Froid, Montana, since her marriage in 1940. In 1971, appellant’s husband died intestate. He was survived by appellant and seven children. Following her husband’s death appellant became the sole owner of 1280 acres of land and obtained ownership of all of the ranch equipment of her deceased husband through joint tenancy. Additionally, appellant obtained a one-third interest in both the cattle and another 320 acre parcel of land. The seven children each held a %lst interest in the cattle and the 320 acres of land.

Shortly after his father’s death, defendant and respondent Curtis Hansen left his employment with Haugen’s, Inc., in Williston, North Dakota, and returned, upon appellant’s request, to assist on the family farm. Appellant and respondent set up a joint checking account to operate the Hansen Hereford Ranch. Respondent ran the farming and ranching operation for the next 16 years, unilaterally making all decisions which affected the operation. Respondent took on responsibility for all aspects of the operation. In return, respondent received a salary, room and board, a pickup, nd gasoline for his personal use.

Respondent made all decisions concerning the purchase of equipment and machinery, and between 1971 and 1987 purchased approximately $200,000 worth of farm equipment. Respondent also signed the ranch property into numerous agricultural programs with the ASCS office in Culbertson, Montana, including enrolling 310 acres in the Conservation Reserve Program (CRP) in July 1987. Respondent consistently signed contracts at the ASCS office and contracts to purchase equipment as “Hansen Hereford Ranch, by Curtis Hansen.” However, respondent’s last major purchase of equipment was in his own name. Respondent purchased a John Deere 530 baler from Haugen’s, Inc., and pledged several pieces of ranch equipment as collateral.

Shortly after this purchase in November 1987, respondent received a letter signed by his mother and all six of his siblings. The letter indicated that the other owners of the ranch operation were somewhat concerned about certain aspects of the operation and indicated that they now intended to take a more active role in the management of the ranch, specifically, they requested an inventory of all the machinery on the ranch and indicated that in the future a majority of the family members must approve any purchase for the ranch over $1500. Respondent claimed he would be unable to work under these conditions and left the ranch. Respondent returned to Williston, North Dakota, and began working again for Haugen’s, Inc.

After leaving the ranch, respondent defaulted on the contract for the equipment purchased in his name. Haugen’s, Inc., took a default judgment, moved the judgment to Montana, and repossessed the ranch tractor and loader which respondent had pledged for security. There was a surplus from the sale of the ranch machinery and these funds were deposited into a bank account in the name of Haugen’s, Inc., and respondent. Appellant added Haugen’s, Inc., as a party for the purpose of getting these proceeds tendered to the court. Haugen’s, Inc., never appeared in the action. Appellant moved for a default judgment at trial on this issue, but the motion was never ruled upon by the trial court.

Prior to leaving the ranch, respondent had enrolled approximately 310 acres of land in the CRP and had signed the contract on behalf of the Hansen Hereford Ranch. Of the 310 acres enrolled, appellant owned 152 acres outright, and had a one-third interest in the remaining 158 acres. Shortly after leaving the ranch, respondent notified the local ASCS office that it lacked the signatures of all the owners of the land under the CRP contract. The ASCS office suspended the contract until it could get the signatures of all the family members. Appellant and six of her children signed the contract, but respondent refused to sign. The Roosevelt County ASCS office notified respondent that it required his signature in order to continue the CRP contract. The ASCS canceled the contract when respondent again refused to sign. As a result of the cancellation, the ASCS is seeking liquidated damages from appellant, as well as the return of $16,286.41 in payments previously made under the contract.

The exact number of cattle that the ranch owned at the time of Alfred Hansen’s death in 1971 is not entirely clear. However, both parties appear to agree that each of the seven children received approximately ten head of cattle from their father’s estate. At some point, respondent bought the cattle owned by three of his brothers, paying each of them $5000. Respondent obtained bank loans to purchase the cattle and then used ranch funds to repay approximately $13,000 on the loans. Appellant sold all of the cattle after respondent left. Respondent was not given any of the proceeds from this sale.

Appellant brought suit alleging respondent converted the farm equipment and seeking damages for the canceled CRP contract. Respondent counterclaimed alleging that appellant had converted his cattle. Additionally, respondent claimed to have been appellant’s partner for the 16 years he was on the ranch and he sought damages for lost wages, raises, and fringe benefits he would have received had he stayed at Haugen’s, Inc., and not come back to the ranch.

The jury found that respondent had converted appellant’s equipment but awarded nothing in damages. The jury then determined that respondent had acted maliciously in relation to the CRP contract and awarded the appellant $1163 in damages. The jury found that appellant had converted cattle belonging to respondent and awarded respondent $20,000. The jury then awarded respondent $23,000 for “other losses.” From the verdict of the jury and entry of judgment by the District Court, appellant brought this appeal.

I.

Was the jury verdict supported by substantial credible evidence?

Our scope of review of jury verdicts is necessarily very limited. Sizemore v. Montana Power Company (1990), 246 Mont. 37, 803 P.2d 629. This Court will not reverse a jury verdict which is supported by substantial credible evidence. Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 908. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Mountain West Farm Bureau Mutual Ins. Co. v. Girton (1985), 215 Mont. 408, 697 P.2d 1362. Finally, upon reviewing a jury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party. Kukuchka v. Ziemet (1985), 219 Mont. 155, 710 P.2d 1361.

CONVERSION OF EQ UIPMENT

Appellant brought suit seeking damages for the conversion of her tractor and loader which respondent had pledged as security when he purchased equipment in his own name. The tractor and loader were lost when respondent defaulted. The undisputed testimony at trial was that the value of the lost equipment was between $18,500 and $23,500. The jury found that respondent converted the equipment, but awarded appellant no damages. Appellant contends the finding by the jury that she was not entitled to any damages was not supported by substantial credible evidence.

The measure of damages for conversion is set out at § 27-1-320, MCA, which states:

(1) The detriment caused by the wrongful conversion of personal property is presumed to be:
(a) the value of the property at the time of its conversion with the interest from that time or, when the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict without interest, at the option of the injured party; and
(b) a fair compensation for the time and money properly expended in pursuit of the property.
(2) The presumption declared by subsection (1) cannot be repelled in favor of one whose possession was wrongful from the beginning by his subsequent application of the property to the benefit of the owner without such owner’s consent.

Respondent correctly argues that the statutory presumption as to the amount of damages is disputable. The presumption of damages in the event of conversion may be overcome by evidence of peculiar circumstances that result in an injury different than the statute contemplates. Graham v. Clarks Fork Nat’l Bank (1981), 193 Mont. 282, 631 P.2d 718. Prior cases decided by this Court have only dealt with situations in which it was alleged that the damages were greater than provided by the statute. However, the presumption may also be overcome with evidence that the damages were less than provided by the statute. This Court has previously suggested that the appropriate practice should be to first instruct the jury on the statutory rule regarding damages. The jury should then receive a supplemental instruction directing that the presumption of damages may be overcome by evidence of peculiar circumstances which would warrant an award of damages different from the statutory presumption. Ferrat v. Adamson et al. (1917), 53 Mont. 172, 163 P. 112. The jury in this case was not specifically instructed as to the evidence necessary to overcome the presumption and made no findings as to any peculiar circumstances which may have existed. However, the jury heard extensive testimony during trial about the nature and duration of the relationship between the parties and determined that appellant was not entitled to damages for the conversion of her equipment. While inherently weak we cannot say that the jury’s finding was not based on substantial evidence.

CRP CONTRACT

Respondent’s failure to sign the CRP contract resulted in the contract being canceled by the local ASCS office. The uncontroverted testimony at trial was that the ASCS is now seeking liquidated damages from appellant as a result of the cancellation, as well as the return of $16,286.41 in payments previously made under the contract. Additionally, appellant has lost future payments which would have been made under the contract.

Respondent argued at trial that since he no longer had control over the completion of the contract, that he could not, in good faith, sign it. Appellant alleged that the refusal to sign was malicious and vindictive. The jury found that respondent acted maliciously in refusing to sign the contract, but awarded only $1163 in damages. Appellant contends this award is not supported by substantial credible evidence.

It is not clear from the verdict how the jury determined appellant’s damages to be $1163. However, this Court will not disturb an award of damages unless the amount awarded is so grossly out of proportion to the injury as to shock the conscience. Frisnegger v. Gibson (1979), 183 Mont. 57, 598 P.2d 574. While the award of damages in this instance appears to be relatively small in comparison to appellant’s loss, it is not so grossly out of proportion so as to shock the conscience.

CONVERSION OF CATTLE

Respondent received %lsts of the cattle at his father’s death, which was approximately ten head of cattle. Respondent then purchased the cattle owned by his three brothers, paying each brother $5,000. He borrowed this money and repaid approximately $13,000 using ranch funds. After respondent left the ranch, appellant sold all of the cattle and kept all of the proceeds. Respondent counterclaimed, alleging that appellant had converted his cattle. The jury found the cattle had been converted and awarded respondent $20,000.

Appellant contends that since the cattle were purchased with ranch proceeds they belonged to the ranch, even if respondent did obtain bills of sale from his brothers for the cattle. Respondent testified at trial that he used ranch proceeds to pay off the loans because he had sold the cattle and deposited the proceeds in the ranch account. Respondent argues in the alternative that the ranch money used to pay off the loans should be considered a gift. While the evidence concerning the conversion of cattle by appellant is clearly conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence and the determination in this case will not be disturbed on appeal by this Court.

RESPONDENT’S “OTHER LOSSES”

Respondent also counterclaimed, seeking damages for benefits and wages he lost by returning to the ranch in 1971 instead of staying at the job he held at the time. The District Court instructed the jury that if they found respondent was an employee, then the damages respondent sought were barred by the Wrongful Discharge from Employment Act. Respondent argued that he had been a partner on the ranch. The jury apparently agreed. On the special verdict form used by the jury, question 12 asked them to find if appellant owed respondent damages for other losses, and if so, in what amounts. The jury returned with $23,000 in damages, of which $7,000 was for personal checks written by respondent, and $16,000 was for yearly bonuses. While the evidence concerning respondent’s claim that he was a partner may appear to be inherently weak and conflicting there was substantial evidence for the jury to reach this conclusion.

II

Was it an abuse of discretion for the District Court to admit into evidence defendant’s Exhibit P?

Defendant’s Exhibit P was a report prepared by an expert witness for the defense on the wages and benefits respondent claims he lost by returning to the ranch. The expert referred to the report during his testimony and was subject to cross-examination concerning the report. Respondent did not move for the admission of the report into evidence at the time of the testimony by the expert. Respondent waited until after he had rested his case before he moved for the admission of the report. Over appellant’s objection the report was admitted.

Rulings on the admissibility of evidence are within the discretion of the district court and will not be reversed by this Court absent an abuse of discretion. Cooper v. Rosston (1988), 23 Mont. 186, 756 P.2d 1125. This Court has previously held that when a party rests their case they voluntarily lose the right to introduce any further evidence, except rebuttal. Maass v. Patterson (1949), 122 Mont. 394, 204 P.2d 1040. In this instance, the District Court abused its discretion by allowing into evidence defendant’s Exhibit P. However, in order for error to be the basis for a new trial, it must be so significant as to materially affect the substantial rights of the complaining party. Rule 61 M.R.Civ.P.; Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908. In this instance, the report was merely cumulative of other evidence presented to the jury and was not prejudicial to appellant. The admission of the report was harmless error, and therefore, does not warrant a reversal.

III

Should the District Court have granted a default judgment against Haugen’s, Inc., concerning the excess proceeds remaining after the repossession and sale of appellant’s equipment.?

The District Court decided that since appellant had only recently received an accounting, and because issues not raised at trial might be involved, a separate proceeding would be needed concerning the excess proceeds. The District Court’s decision was clearly within its discretion.

Affirmed.

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


text:
    IN RE THE MARRIAGE OF J. SPENCER WEED, III, Petitioner and Respondent, and KAREN M. WEED, Respondent and Appellant.
    No. 91-627.
    Submitted on briefs May 21, 1992.
    Decided Aug. 6, 1992.
    49 St.Rep. 681.
    836 P.2d 591.
    254 Mont. 162.

      For Respondent and Appellant: James P. O’Brien, O’Brien Law Office, Missoula.

      For Petitioner and Respondent: Keith W. McCurdy, McCurdy Law Firm, Poison.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Karen M. Weed appeals from a decree of dissolution entered in the Twentieth Judicial District Court, Lake County.

We affirm in part and reverse in part.

The issues raised by appellant for our consideration are as follows:

1. Did the District Court err in its computation of child support?

2. Did the District Court err in the division of the marital estate?

3. Did the District Court err in the award of maintenance to appellant?

The parties were originally married in 1969. Prior to the marriage, the parties entered into an antenuptial agreement. The marriage ended in dissolution on December 11,1972. The parties remarried on March 23, 1973, and entered into a second antenuptial agreement. Both antenuptial agreements were essentially the same. Two children were born during the second marriage — Barbara, age 15, and Douglas, age 7.

Respondent J. Spencer Weed began his own cattle ranch in 1967 which he expanded to approximately 2800 acres prior to the parties’ second marriage. The ranch is currently being leased to two individuals. The income from the leases amounts to approximately $12,000 annually. In addition to the ranch, Spencer’s property consists of a savings account, a gun collection, and miscellaneous property. Finally, Spencer is a contingent beneficiary of two trusts. The current value of the 1923 trust is approximately $1.3 million, while the 1929 trust is valued at about $1.4 million. Currently, his 83-year-old mother is the beneficiary of these trusts.

At the time of trial, Karen was 41 years old and Spencer was 51. Spencer is in general good health, but does suffer from alcohol abuse and is hearing impaired. Karen suffers from chronic low back pain and respiratory infections. The parties’ oldest child has a form of epilepsy which requires constant medication and monitoring by a neurologist. Both parties are capable of working at minimum wage level jobs, but are unemployed and Karen is currently receiving monthly AFDC benefits in the amount of $390. It is unclear from the record whether the parties’ daughter is receiving state medical assistance.

On March 15, 1990, Spencer filed a petition for dissolution. Pursuant to a motion, the court granted partial summary judgment relating to the disposition of the marital estate. The court ruled that pursuant to the 1973 antenuptial agreement the parties were to retain their own real and personal property owned prior to the second marriage. In effect, this order barred Karen from asserting any claim to the ranch and the two trusts. Karen does not challenge the validity of the order in her appeal.

On September 23, 1991, the District Court conducted a hearing concerning the distribution of the remaining marital estate, child custody and support, and maintenance. On November 14, 1991, the court issued its findings of fact and conclusions of law and decree. It is from this order that Karen appeals.

I.

Did the District Court err in its computation of child support?

In its findings of fact, the court ruled that both Karen and Spencer were capable of minimum wage employment. In the child support guidelines work sheet, the District Court imputed to Karen a yearly minimum wage of $8840, based on its finding that she was capable of minimum wage employment. The court imputed a yearly wage of $12,116 to Spencer, based on his income derived from the ranch leases. Unlike its treatment of Karen, the court did not impute income from minimum wage to Spencer and offers no explanation for the disparate approach. Based on these figures, the District Court ordered that Spencer pay $247.25 per month in child support for both children and ordered that both Spencer and Karen share equally in the health expenses of the children.

Our standard of review in reviewing child support is that a presumption exists in favor of the district court determination, and this court will reverse the district court only if it has abused its discretion. In re Marriage of Sacry (Mont. 1992), [253 Mont. 378,] 833 P.2d 1035, 49 St. Rep. 452.

Section 40-4-204(3) (a), MCA, provides that:

Whenever a court issues ... an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of social and rehabilitative services unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

Section 46.30.1513(1) (a), A.R.M., of the guidelines defines gross income for child support as:

[IJncome from any source, except as excluded below, and includes but is not limited to income from salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment benefits, gifts and prizes and alimony or spousal maintenance.

Section 46.30.1513(l)(b), A.R.M., defines “imputed income” as income from a parent who is either voluntarily unemployed or underemployed, and that income may be imputed to the parent based on the parent’s ability or capacity to earn net income.

Because of the guidelines definition of gross income and imputed income, Spencer’s income derived from leasing his ranch was appropriately considered by the court as gross income for the purposes of calculating child support. In addition, while the District Court concluded that Spencer was capable of minimum wage employment, it failed to offer any explanation as to why it did not impute this income to Spencer for child support purposes while at the same time imputing the income to Karen. Because the court found that Spencer was capable of minimum wage employment, we hold that the court should have imputed this income for calculating child support. See generally, In re Marriage of Chivaro (1991), 247 Mont. 185, 805 P.2d 575. We hold that the District Court abused its discretion in not imputing to Spencer a yearly minimum wage for the purpose of calculating child support.

Karen also contends that the District Court abused its discretion in directing that the parties share equally in the health expenses of the children because it did not consider the children’s extraordinary medical expenses. The parties’ oldest child suffers from a form of epilepsy which requires constant medication and specialized monitoring. Karen is receiving AFDC benefits in the amount of $390 a month, as well as tapping into the oldest child’s savings account for income.

The child support guidelines delineate how a district court should proceed for extraordinary medical expenses which are likely to recur on a periodic basis. The expense should be prorated between the parents and added to supplement the child support obligation. Section 46.30.1525(c), A.R.M. Determining the amount to be paid can be accomplished by adding a monthly average of past expenses if future costs are comparable. Section 46.30.1525(c)(i), A.R.M.

The District Court did not make any finding regarding the oldest child’s medical condition or the extraordinary medical expenses that ■will probably be incurred in the future. We hold that the District Court abused its discretion and erred in the calculation of child support.

II.

Did the District Court err in the division of the marital estate?

Recently we have clarified our standard of review regarding the distribution of the marital estate. Our standard of review in the division of marital property is whether the district court’s division of the marital estate is clearly erroneous. Sacry, [253 Mont. 378,] 833 P.2d 1035, 49 St.Rep. 452.

In granting Spencer’s motion for partial summary judgment on the question of the validity of the 1973 antenuptial agreement, the court awarded the parties their own real and personal property acquired prior to the marriage. The effect of this order allowed Spencer to retain his 2800 acre ranch. The court determined in the decree that the value of the parties’ marital estate amounted to $36,669, which consisted of an extensive fist of personal property. Spencer submitted a list of property that was to be divided by the parties. The record reflects that in response to the court’s February 13, 1991, order, Karen’s list of proposed property distribution, with some minor exceptions, is similar to the court’s distribution of the marital estate.

Karen also contends that the District Court failed to consider Spencer’s expectation as a contingent remainderman in an inheritance when determining the division of the marital estate. Generally, under § 40-4-202(1), MCA, the court must consider future acquisition of assets in proceedings to divide marital property following dissolution of marriage, and failure to so may result in error. In re Marriage of Alt (1985), 218 Mont. 327, 708 P.2d 258. Under the facts of this case, the court ruled that the 1923 and 1929 trusts were premarital property and were governed by the terms of the court’s partial summary judgment order, and thus excluded as a marital asset. In addition, Spencer does not have a present vested interest in the trusts and will not have an interest in the trusts unless he survives his mother. If he should die before his mother, then the benefits of the trust will pass on to the two children. We hold that the division of the marital estate was supported by substantial evidence and that the District Court did not err in the division of the marital estate.

III.

Did the District Court err in the award of maintenance to appellant?

Recently we have stated that our standard of review in maintenance award cases is whether the district court’s findings of fact are clearly erroneous. In re Marriage of Eschenbacher and Crepeau (Mont. 1992), [253 Mont. 139,] 831 P.2d 1353, 49 St. Rep. 393. A district court may award maintenance after the marital property has been equitably divided pursuant to § 40-4-202, MCA, and the court has properly applied the criteria of § 40-4-203, MCA.

In this instance, Karen requested a monthly maintenance award of $200. The District Court divided the only cash asset available to the parties and awarded Karen a $13,519.35 lump sum maintenance payment. This amounts to $200 a month for five and one-half years. The court considered the ability of Spencer to meet his own needs while meeting the needs of Karen. Spencer is currently unemployed and receives approximately $1000 a month from leasing his ranch and has been awarded the marital debt. We hold that the District Court did not err in granting Karen a lump sum maintenance award.

We remand this matter to the District Court for further proceedings in accordance with this opinion.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


author: JUSTICE HARRISON

text:
    IN RE THE MARRIAGE OF WILLIAM RICHARD CARAS, Petitioner and Respondent, and LAURI CHRISTINE CARAS, Respondent and Appellant.
    No. 92-075.
    Submitted on briefs June 25, 1992.
    Decided Aug. 6, 1992.
    49 St. Rep. 684.
    835 P.2d 715.
    254 Mont. 169.
    For Appellant: Noel K. Larrivee, Larrivee Law Offices, Missoula.
    For Respondent: Richard Reep, Reep, Spoon & Gordon, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District Court, in and for the County of Missoula, the Honorable Ed McLean presiding.

Lauri Christine Caras appeals from the final decree of dissolution which was entered by the Fourth Judicial District Court, Missoula County, on November 22, 1991, which converted the prior decree of legal separation to a decree of dissolution, and incorporated the parties’ prior marital and property settlement agreement by reference. We reverse.

The sole issue on appeal is whether the marital and property settlement agreement executed by the parties should be set aside on the grounds that the agreement is unconscionable.

In August of 1978, William Richard Caras (William) and Lauri Christine Caras (Lauri) were married in California. Two sons were bom of the marriage; David, born June 9, 1980 and Nicholas, born November 16, 1983.

In December 1988, the parties’ marriage began to deteriorate and William mentioned divorce but Lauri refused. She showed signs of depression, withdrawal and weight loss throughout 1989, and in 1990 family and friends intervened when Lauri was totally withdrawn. Lauri’s condition prompted William to schedule a marriage counseling appointment for the couple. They attended just one session as a couple; Lauri, however, continued individual counseling between April and June 1990, in hopes that the counseling would aid in a reconciliation with William. In July 1990, Lauri suggested, and the parties later agreed, that she should attend school in FranMin, Tennessee. Although William was in favor of Lauri’s schooling, he still desired a divorce. Lauri hoped the change would avoid divorce and help the marriage. About this time, the couple began the process of establishing a Marital and Property Settlement Agreement (the Agreement). To that end, William contacted attorney Rick Baskett (Baskett) who previously represented him in various business matters, and discussed with him the specifics of the Agreement. However, due to William and Baskett’s mutual social and other associations, Baskett referred William to another attorney, Rick Reep.

Lauri met with Baskett individually after determining that a divorce was too drastic a step and decided to attempt a legal separation. Lauri alleges that Baskett told her she was possibly entitled to a larger property settlement than what had been drafted in the Agreement, but suggested that in order to maintain a friendly relationship with William and not to impact his business in a negative manner, she should sign the Agreement.

The Agreement addressed various matters including custody, visitation, maintenance, and property distribution. The record indicates that Lauri understood the Agreement to be an interim agreement and not the final word on these issues if the matter actually proceeded to dissolution. Lauri also alleges that Baskett advised her to wait until her husband filed for the divorce at which time she could move the court to have the Agreement overturned. Lauri signed the Agreement in August of 1990 and departed for school in Tennessee. The executed agreement was filed with the District Court on August 31, 1990. On October 11, 1990, the court issued a decree of legal separation which incorporated the parties’ Agreement.

Lauri discontinued her Tennessee schooling sometime early in 1991 for various reasons including her individual counseling sessions. She also met with William and their children several times in Tennessee and California. Lauri remained in Tennessee until approximately April of 1991, when she returned to Missoula in an unsuccessful attempt to resolve the marriage problems.

On May 17, 1991, William filed a motion to convert the legal separation to a final decree of dissolution; that motion was granted on May 21,1991 by Judge Jack L. Green. Lauri contacted Baskett to have the order set aside and on July 1, 1991, Judge Green did set aside entry of decree of dissolution and removed himself as the judge. Judge John Henson also recused himself from the matter and Judge Ed McLean assumed jurisdiction of the matter on July 10, 1991.

Judge McLean held ahearing on July 31,1991 regarding the issues of whether the decree of separation should be converted to a decree of dissolution and, secondly whether the Agreement should be set aside. At the July 31,1991 hearing, Judge McLean carefully set forth time constraints for motions and briefs. Baskett did not file any brief or make any response to the court’s directive of July 31,1991. Baskett sent Lauri a stipulation which she alleges she was confused about signing. She alleges that Baskett told her that it was the only means to get the money that William owed her, but she refused to sign the stipulation.

William again filed a motion to convert the decree of legal separation entered by the court on October 11, 1990, to a final decree of dissolution, incorporating all terms and conditions set forth in the Agreement. On November 22, 1991, after no filings were made by Lauri for a period of nearly two months, the court granted William’s motion and entered the final dissolution decree, as requested, which incorporated the Agreement. With new counsel of record, Lauri now appeals to this Court.

The issue in the case at bar cannot adequately be reviewed by this Court because the final decree of dissolution contains no findings regarding the conscionability of the Agreement. The entire contents of the final decree dated November 22,1991, is as follows:

Upon Motion by Petitioner and good cause appearing, the Court orders that the Decree of Legal Separation entered by the Court on the 11th day of October, 1990, be converted to a Final Decree of Dissolution incorporating all terms and conditions set forth within the parties’ Marital and Property Settlement Agreement as adopted by this Court in the Decree of Legal Separation previously referenced.

While we will not discuss every term in the Agreement, with regard to the property division aspects of § 40-4-202, MCA, that statute establishes the criteria under which such property should be distributed. The court may “finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired.” Section 40-4-202, MCA; also see In re Marriage of Scott (Mont. 1992), [254 Mont. 81,] 835 P.2d 710, 713 [49 St.Rep. 634]. The statute then lists factors which the court must consider in property distribution. The above-referenced decree contains no reference to the required criteria.

This Court is not unmindful of the fact that both parties signed the Agreement in August of 1990 as a prelude to the legal separation proceeding. However, the record indicates that there was substantial confusion regarding the parties’ understanding of the long-term ramifications of the Agreement. Lauri repeatedly indicates that she believed the Agreement to be temporary or interim in nature while the couple pursued restoration of their marriage. The record indicates that with her departure to Tennessee fast approaching and her understanding of the temporary nature of the Agreement, she signed the Agreement. Lauri was apparently lead to believe that upon the initiation of actual divorce proceedings, the provisions of the Agreement could be replaced or revised.

In the case at bar the District Court should have addressed the conscionability of the Agreement especially in light of the circumstances and understandings of the parties; in particular, the fact that the Agreement was signed in August of 1990 and the final decree of dissolution which incorporated it was entered in November of 1991. Accordingly, we vacate and remand this matter back to the District Court for findings as to whether or not the Agreement is conscionable. If found unconscionable, the decree of dissolution should be set aside and an equitable division of the property and all related matters should be addressed. Reversed and remanded to the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES GARY, McDONOUGH and HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. DENNIS LEON VALCOURT, Defendant and Appellant.
    No. 92-046.
    Submitted on briefs July 2, 1992.
    Decided Aug. 11, 1992.
    49 St.Rep. 686.
    835 P.2d 753.
    254 Mont. 174.
    For Defendant and Appellant: Nicholas C. Jacques, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General; Kathy Seeley, Assistant Attorney General; Mike McGrath, County Attorney; and Carolyn Clemens, Deputy County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Dennis Leon Valcourt was convicted of aggravated burglary. He appeals the sentence imposed upon him by the District Court of the First Judicial District, Lewis and Clark County. We affirm.

The issue is whether the sentence imposed is improper.

The charges against Valcourt arose out of a burglary and brutal beating of a seventy-six-year-old Helena woman in her home in July 1991. A jury convicted Valcourt of aggravated burglary.

After a presentence investigation and a defense-requested chemical dependency evaluation, the District Court held a sentencing hearing at which testimony was heard on behalf of the State and by Valcourt himself. The court sentenced Valcourt to the maximum term of forty years imprisonment and denied him any eligibility for parole pursuant to § 46-18-202(2), MCA. It gave the following reasons for the sentence it imposed:

The reasons for the Court’s sentence are that the defendant has a long criminal record. He has had numerous opportunities to rehabilitate himself, but has not taken advantage of them. The defendant’s crimes have become more violent culminating in this crime. The victim/complainant is near death and has basically lost her life. After months of hospitalization on life support systems, she is required to live in a nursing home because of defendant’s actions. The defendant is in severe stages of alcoholism. The defendant indicated he has no idea or reason why he committed this crime. There is no way to predict what the defendant may do next. The defendant’s criminal history, this crime and his severe alcoholism shows that the defendant poses an extreme danger to society.

Valcourt appealed to this Court.

Valcourt’s argument on appeal is that the sentence imposed upon him violates constitutional and statutory principles of prevention, reformation, and rehabilitation. He cites provisions in § 46-18-101, MCA, that the correctional policy of this State includes rehabilitation of the convicted. However, that statute also provides that the correctional policy of this State includes “protect[ing] society by preventing crime through punishment.”

In State v. Beach (1985), 217 Mont. 132, 705 P.2d 94, defendant Beach received a 100-year sentence, the maximum allowable, without eligibility for designation as a nondangerous offender or parole. He claimed that his sentence violated Article II, section 28 of the Montana Constitution and § 46-18-101, MCA. As does Valcourt, Beach argued that his sentence was not based upon principles of prevention, reformation, or rehabilitation, but that it was motivated by a desire for revenge for the victim’s family. This Court upheld Beach’s sentence, stating:

We find no merit in defendant’s argument. First, Article II, section 28, Mont. Const, allows a district court in its discretion to base a sentence upon the principle of prevention of future crimes. This includes the power to remove a person from society, as the District Court found necessary here.
Secondly, the District Court’s sentence was within the permissible statutory range, and, in the absence of clear abuse of discretion is properly reviewed by the Sentence Review Division. There was no clear abuse of discretion in this case and thus this is a matter for the Sentence Review Board.

Beach, 705 P.2d at 107.

Valcourt argues that his sentence violates the constitutional prohibition against cruel and unusual punishment,. On that subject, this Court has stated:

Ordinarily a sentence is not cruel and unusual punishment if it is within the maximum established by statute... and review properly lies with the Sentence Review Division.

State v. Austad (1982), 197 Mont. 70, 100, 641 P.2d 1373, 1389.

Valcourt states that, at the sentencing hearing, he displayed remorse and willingness to receive and complete chemical dependency treatment and that because he has never received professional help with his drug addiction, he is different from the defendants in the cases cited above. He asserts that by not allowing him the possibility of parole on a forty-year sentence, the court has effectively removed any incentive for him to use his time productively in prison by taking advantage of chemical dependency programs to prepare himself for an eventual return to society.

Valcourt’s arguments attempt to place a duty on the criminal justice system to force him into rehabilitation. The Legislature specifically found in § 46-18-101(2), MCA, that “an individual is responsible for and must be held accountable for his actions.” The record does not demonstrate whether chemical dependency treatment was available to Valcourt during his previous incarcerations. However, Valcourt’s own testimony at the sentencing hearing demonstrates a denial of personal responsibility for his criminal history, either because “the other guy started it” or because of his use of alcohol or drugs. Denial of parole need not prohibit Valcourt from participating in chemical dependency treatment for his own betterment.

Valcourt also objects to a reference in the presentence investigation to a charge against him of sexual intercourse without consent. The District Court specifically noted at the sentencing hearing that it was disregarding any reference to or consideration of that charge, of which Valcourt was acquitted.

The sentence imposed is within the statutory limits for the offense of which Valcourt was convicted. Affirmed.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.