author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    LAURICE ST. JOHN, Plaintiff and Appellant, v. MISSOULA ELECTRIC COOPERATIVE, INC., Defendant and Respondent.
    No. 96-641.
    Submitted on Briefs January 30, 1997.
    Decided April 24, 1997.
    54 St.Rep. 361.
    282 Mont. 315.
    938 P.2d 586.

      See C.J.S. Compromise and Settlement § 24.

      For Appellant: Timothy D. Geiszler; Geiszler & Newcomer, Missoula.
    For Respondent: Edward A. Murphy; Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Laurice St. John (St. John), appeals from the Fourth Judicial District Court’s Judgment awarding Missoula Electric Cooperative, Inc. (MEC), $1,160.30 on its counterclaim. We reverse and remand.

We address the following dispositive issue on appeal:

Did the District Court err in holding that the Payment Agreement entered into between St. John and MEC was a settlement of all disputes?

BACKGROUND

In March of 1992, St. John purchased a house from Howard Lemm (Lemm) in Lolo, Montana. St. John did not move into the house for one year after her purchase. During that period she rented the property back to Lemm. St. John’s house is equipped with two electrical meters, one serving the house (house meter), and the other serving the swimming pool (pool meter). The pool meter and the house meter were billed separately and given separate account numbers by MEC. The dispute in this case arises from a bill for electrical services to the pool meter.

In May of 1993, Lemm contacted St. John to see if she wanted to use the pool during the upcoming summer season. In response, St. John contacted a local pool service company to prepare the pool for use during the summer season. In August of 1993, St. John contacted MEC to open an account for power to her new house in preparation for her arrival at the residence later that month. Soon after St. John opened the account, MEC billed her $2,040 for electrical service credited to the pool meter.

In October of 1993, St. John contacted MEC regarding the large bill and contended that it was a mistake. MEC told St. John that the bill was likely an error and would be corrected later. However, St. John continued to be billed $2,040 for electrical service supplied to the pool for the period of July 20,1993, through August 19,1993. In addition to these charges, St. John received a later bill for an additional $2,040 for electrical services to the pool for the period of October 19,1993, through November 10,1993. This made her total bill $4,080. Although she refused to pay the bill from the pool meter, St. John continued to promptly pay all bills related to the house meter.

Due to St. John’s refusal to pay the bill related to the pool meter, MEC terminated electrical services to both the house and the pool. Although it would have been possible for St. John to switch to another supplier for her electrical service, she would first have to obtain the consent of MEC. St. John had a friend restore power to her home without the permission or knowledge of MEC. When MEC discovered the unauthorized service, it again terminated all electrical service to St. John’s two accounts.

MEC agreed to reconnect St. John’s service provided she enter into a written agreement to pay the disputed balance in monthly installments. The agreement provided as follows:

I Laurice St. John Agree to pay $882.18 at the time of reconnect. And agree to make payments of 250.00 a month until my balance is paid in full.
Previous Balance 3908.87
current charges 237.43
tampering fee/disc 75.00
deposit 264.00
reconnect fee 75.00
Total bal 4.560.30
8/29/94 pmt -900.00
Remaining balance ment of $250.00 3.660.30 to make monthly pay-
I understand that if this agreement is not kept current my account or accounts will be disconnected.
Members signature
/s/ Laurice A. St. John 8-29-94
Credit & Collections
/s/ Kelly M. Sherick

Under the terms of the above document, the repayment totaled $4,560.30. St. John agreed to make a $900 down payment and pay $250 per month until the remaining balance was paid. After St. John signed the agreement, and without St. John’s knowledge or consent, MEC altered the document by adding the words “ACCORD AND SATISFACTION.” In order to continue to receive electrical service, St. John made the down payment and ten monthly installments before she discontinued payments leaving a balance of $1,160.30 charged to the pool meter.

Unable to resolve her dispute with MEC, St. John filed suit against MEC alleging negligent billing and negligent infliction of emotional distress. MEC asserted a counterclaim against St. John, seeking payment of the balance of $1,160. A trial was held before the court sitting without a jury.

In its Findings of Fact, the District Court found that St. John had agreed to make payments solely to restore the electrical service to her house. Nonetheless, the court concluded that St. John had agreed to “settle” the dispute and had only partially complied with the settlement agreement. Accordingly, the court entered judgment against St. John in the amount of $1,160. St. John appeals from this judgment.

DISCUSSION

Did the District Court err in holding that the Payment Agreement entered into between St. John and MEC was a settlement of all disputes?

The standard of review of a district court’s findings of fact is whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. This Court has adopted a three-part test in determining whether the findings are clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. This test includes:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. [Citations omitted.] Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” ...

DeSaye, 820 P.2d at 1287 (citing United States v. United States Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746). The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672.

The court’s ruling in favor of MEC is based upon the premise that “[i]f the parties to a legal dispute enter into an agreement to settle that dispute, the new agreement becomes enforceable according to its terms.” The court concluded that “Laurice St. John and MEC entered into a new agreement to settle their dispute on August 29, 1994 and she partially performed her obligations under that agreement, but then breached it by failing to pay the entire amount owed to MEC.” We hold that the court’s conclusion that St. John entered into an agreement to “settle” the dispute is not correct in light of the court’s findings of fact.

A number of the court’s findings of fact relate specifically to the question of whether St. John had a valid dispute with MEC and whether she entered into an agreement to settle that dispute. The court found specifically that “St. John did not consume 40,000 kwh of electricity [$2,040.00] during the period from when her account was opened [August 12, 1993] to the August meter reading [August 19, 1993].” The court also found that, although MEC billed St. John for 40,000 kwh consumption from October 19, 1993 through November 15,1993, “[t]he pool had been closed and shut down prior to October 19, 1993.” These findings would certainly indicate that St. John’s challenge to the MEC billing was not without a basis.

Further, with regard to the substance of the “Agreement” that St. John signed in order to restore power to her residence, the court found that “St. John signed a written promise to pay this disputed balance in monthly installments, without admitting she was responsible for those disputed charges, and without agreeing that the payment plan constituted a settlement of the dispute over the pool meter billing.” (Emphasis added.) The court also found that St. John had paid $3,400 to MEC “solely to keep her electrical service to her house.” MEC has not cross-appealed from these findings of fact and thus they constitute established facts.

In light of these established facts, it is clear that St. John had a basis for disputing the MEC billing and that, in agreeing to make payments on the outstanding balance in order to restore power to her residence, she did not agree to “settle” the dispute. The court’s conclusion that St. John and MEC entered into a new agreement to “settle” their dispute is contrary to the court’s own Findings of Fact and is in error.

We hold that the court’s judgment in favor of MEC is based upon an erroneous conclusion that St. John entered into an accord or agreement to settle her dispute with MEC. As the record and the court’s own findings of fact indicate, there was no such settlement agreement.

Furthermore, once the court found that the dispute had been resolved through a settlement, it did not address the merits of St. John’s claims for negligent billing and negligent infliction of emotional distress. MEC contends that St. John failed to present a prima facie case of negligent infliction of emotional distress. However, it is for the trial court to determine whether the evidence supports a finding of severe emotional distress. Sacco v. High Country Independent Press (1995), 271 Mont. 209, 239, 896 P.2d 411, 429. In the absence of any findings and conclusions with regard to St. John’s claims, we have no basis for determining whether those claims were of merit. Bauer v. Cook (1979), 182 Mont. 221, 228, 596 P.2d 200, 204. Accordingly, we reverse the judgment for MEC and remand for the District Court to address the merits of St. John’s dispute with MEC’s $4,080 bill and the merits of her claim against MEC for negligent infliction of emotional distress.

JUSTICES NELSON, HUNT and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that the payment agreement between St. John and MEC did not settle their dispute regarding the amount owed by St. John for electrical service. I disagree, however, that that resolves all of the issues which must necessarily be decided on appeal in order to adequately guide the District Court after this case is remanded.

In addition to its conclusion that St. John had settled her dispute with MEC, the District Court also concluded that she failed to show that her meter malfunctioned or was misread. This conclusion was also inconsistent with the District Court’s findings and should be specifically reversed by this Court.

The District Court found that seven days after St. John signed up for electrical service from MEC, she was billed $2040 for 40,000 kwh of service during that time, but that “St. John did not consume 40,000 kwh of electricity ($2040.00) during the period from when her account was opened (August 12, 1993) to the August meter reading (August 19, 1993).”

The District Court went on to find that St. John was later billed $2040 for 40,000 kwh of consumption from October 19,1993, through November 15, 1993, but that the pool, for which the electricity had allegedly been consumed, had been shut down prior to October 19, 1993. Therefore, neither could that charge have been correct. In light of these findings, the District Court’s conclusion that plaintiff failed to show her meter malfunctioned or was misread is incorrect. That conclusion should be reversed and upon reconsideration of this case following remand, the District Court should be directed that judgment cannot be based on that erroneous conclusion.

I would furthermore conclude that the manner in which St. John was treated by MEC in this case was unconscionable and that as a matter of law electrical providers who monopolize electrical service cannot extort payment of legitimately disputed sums from their customers by terminating electrical service until payment is agreed upon. To fully understand just how egregious MEC’s conduct was, it is necessary to look no further than the court’s findings of fact. The following findings have not been appealed by MEC.

When St. John bought her home in Lolo on March 31, 1992, electrical service was provided through and billed from two separate meters. One meter measured consumption in the household, and the other meter measured consumption by the garage and swimming pool. MEC treated the charges separately and billed them separately.

Because the person who occupied the house before St. John bought it continued to live in the house after she bought it, that occupant continued to be responsible for electrical service for a period of time after St. John’s purchase. St. John first signed an agreement with MEC to pay for electrical service on August 12,1993. Seven days later, she was billed $2040 for electrical service provided to the pool area during that seven-day period of time. The only devices using electricity through the pool meter, however, were the electric light bulbs in the garage and the electricity for the pool. Even MEC believed at that time that the meter had to have been misread in order to generate such a substantial and unprecedented charge.

In November, when St. John was again billed $2040, even after the pool had been closed and shut down for the winter, she disputed the amount that she was being charged. She continued to be billed for the fall amount through 1993, but was billed separately for her house and the electrical services provided to the pool. During this time, St. John continued to promptly pay all bills related to her house. In spite of that fact, on April 5, 1994, MEC transferred the $4154 balance attributable to the pool meter to her house meter account, and then demanded full payment within seven days and threatened to terminate electrical service if payment was not made. St. John did not make full payment, and the electrical service was disconnected.

When a friend restored unauthorized service to St. John’s house in order to avoid the extreme difficulties caused by the loss of her electricity, MEC discovered the unauthorized service and sought criminal prosecution of her for unauthorized use of electrical service. It then again terminated electrical service to her home.

It was under these circumstances that MEC then came to St. John and agreed to restore the electrical service, which was essential to the habitability of her home, on the condition that she sign a written agreement to pay the disputed amounts billed from her pool meter. She signed the promise to make monthly installments, but did not admit she was responsible for the disputed charges, and did not agree that the payment plan constituted a settlement of the dispute over the amount due for electricity provided to the pool area.

As if MEC’s conduct was not sufficiently reprehensible by this point in time, it then altered the agreement that St. John had signed, without her knowledge or approval, and added “ACCORD AND SATISFACTION” to the document. Not being sufficiently embarrassed by that impropriety, it then raised the document St. John signed as an actual accord and satisfaction in defense to this action.

The electric cooperative’s conduct in this case is nothing short of extortion, combined with deceit.

The predicament in which St. John found herself due to the bungling, overreaching, and manipulation by MEC was compounded by the fact that she could not switch to Montana Power Company for her service without MEC’s approval, which apparently was never given.

Under similar circumstances, the Supreme Court of Utah held that a public utility has a higher obligation to render services to the public than does an ordinary business. While, concededly, MEC is not a public utility, its status is similar in this case because of the monopoly it had over electrical service to St. John. In Josephson v. Mountain Bell (Utah 1978), 576 P.2d 850, the public utility which provided telephone service to the plaintiff in that case terminated service to his home because he was delinquent in payment for his business phone. The Utah Court held, under the circumstances, that:

But it is our opinion that the defendant should not be permitted to use the pressure of imposing a penalty upon the home and the family by denying them a public service they are entitled to and paying for....
In accordance with what has been said above, we cannot see it as other than a deprivation of the plaintiffs of their rights to cut off their home phone service because charges on the separate business phone were delinquent. We therefore agree with plaintiffs’ contention that the disconnection of their home phone was wrongful.

Josephson, 576 P.2d at 852-53 (footnote omitted).

Based on the reasoning in Josephson, I would conclude, likewise, that an electric cooperative with a monopoly over service to its consumers cannot terminate one form of service which has been fully paid for in order to leverage payment for another service which is legitimately or otherwise disputed. Even though the service disputed in Josephson was to a business premises and the issue was whether service could be terminated to the plaintiff’s residence, the two services involved in this case had been treated just as separately by MEC prior to St. John’s dispute with the cooperative over service to the pool area.

Finally, I would conclude, as the court did in Trigg v. Middle Tennessee Electric Membership Corp. (Tenn. Ct. App. 1975), 533 S.W.2d 730, that a company supplying electricity to the public cannot terminate service to a customer for nonpayment when there is a bona fide dispute concerning the correctness of the bill. In that case, the Tennessee Court held that:

A company supplying electricity to the public has the right to cut off service to a customer for nonpayment of a just service bill and the company may adopt a rule to that effect. Annot., 112 A.L.R. 237 (1938). An exception to the general rule exists when the customer has a bona fide dispute concerning the correctness of the bill. Steele v. Clinton Electric Light & Power Co., 123 Conn. 180, 193 A. 613, 615 (1937); Annot. 112 A.L.R. 237, 241 (1938); see also 43 Am. Jur., Public Utilities and Services, Sec. 65; Annot., 28 A.L.R. 475 (1924). ...
... A public utility should not be able to coerce a customer to pay a disputed claim.

Trigg, 533 S.W.2d at 733.

While, once again, the rule applied in Trigg is normally applied to public utilities, the defendant in that case was the Middle Tennessee Electric Membership Corp., subject to the Electric Cooperative Law of Tennessee, as codified in Tenn. Code Ann. §§ 65-25-101 through -229 (1993). Furthermore, because of the monopolistic nature of MEC’s relationship with St. John, the rationale for the rule is the same in this case.

For these reasons, I concur with what has been said in the majority opinion; however, feel it is insufficient and would expand the opinion to include the conclusions set forth in this opinion.

JUSTICE HUNT joins in the foregoing specially concurring opinion.

      . We note that termination of electrical service can be a matter of grave concern. The media reports that Imelda Marcos’ unpaid electric bill of $200,000 may cause a power shutoff at her husband’s air-cooled crypt. Winners & Losers, TIME Feb. 10,1997, at 19.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS EARL FOSHEE, Defendant and Appellant.
    No. 96-279.
    Submitted on Briefs February 13, 1997.
    Decided April 29, 1997.
    54 St.Rep. 370.
    282 Mont. 326.
    938 P.2d 601.

      See C.J.S. Criminal Law § 584.
    For Appellant: Loren J. O’Toole, II, OTbole & O’Toole, Plentywood.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General, Helena; Steven Howard, Sheridan County Attorney, Plentywood.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Thomas Earl Foshee (Foshee), appeals from the Fifteenth Judicial District Court’s order denying his motion to dismiss the Information on the grounds that he was denied a speedy trial. We affirm.

We address the following issue on appeal:

Did the District Court err in denying Foshee’s motion to dismiss for denial of a speedy trial?

BACKGROUND

On December 24, 1994, Foshee contacted the Sheridan County Sheriff’s Office and informed the dispatcher that he “had just done the worst thing a man could do,” he had killed his wife Katherine Foshee. Following his December 24, 1994 arrest, Foshee made an initial appearance before the Justice of the Peace on December 25, 1994. He was formally charged with deliberate homicide in violation of § 45-5-102(l)(a), MCA, on December 30,1994, and pled not guilty. Foshee did not request bond until September of 1995. Foshee was incarcerated from his arrest on December 24, 1994, through December 2,1995, when he entered an Alford plea.

On May 10,1995, the District Court conducted an omnibus hearing and set an August 21, 1995, trial date. At the hearing, although Foshee did not waive his right to a speedy trial, he did not object to the August trial setting and did not request an earlier setting. Meanwhile, the Montana State Crime Laboratory continued to hold and analyze the 75 pieces of evidence produced in this case.

On July 5,1995, Foshee filed a motion to dismiss on grounds that he had been denied a speedy trial. Following a July 26,1995, hearing on the matter, the District Court entered an order denying the motion to dismiss. In its order, the District Court held that the delay in bringing this case to trial was the result of a backlog at the State Crime Laboratory coupled with the volume of evidence which the State Crime Laboratory needed to analyze before trial. The court noted that there was no showing of bad faith and that Foshee had not requested bond. The court held that the delay was entirely institutional and, after reviewing the totality of the circumstances, that the motion to dismiss should be denied.

After additional delay in obtaining evidence from the State Crime Laboratory, on August 2, 1995, Foshee sought a continuance and a new trial date was set for December 4, 1995. While awaiting the December 4, 1995 trial date, Foshee’s expert witness had an opportunity to examine all of the physical evidence that the State had taken in the case. Two days before the trial date, Foshee entered an Alford plea pursuant to § 46-12-212(2), MCA. In entering this plea, Foshee was unwilling to admit to any element of the offense that would provide a factual basis for a plea of guilty. See § 46-12-212, MCA. Foshee reserved his right to appeal the speedy trial issue pursuant to § 46-12-204, MCA.

DISCUSSION

Did the District Court err in denying Foshee’s motion to dismiss for lack of speedy trial?

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In Montana, a criminal defendant’s right to a speedy trial is guaranteed by both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Weeks (1995), 270 Mont. 63, 891 P.2d 477. In determining whether a criminal defendant has received a speedy trial, this Court has adopted the test set forth by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101. See State v. Thompson (1993), 263 Mont. 17, 865 P.2d 1125; State v. Stewart (1994), 266 Mont. 525, 881 P.2d 629. Under the four-part test outlined by the United States Supreme Court in Barker, a court may consider the length of delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant in determining whether a criminal defendant has been deprived of his or her right to a speedy trial. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. Of these four factors, this Court will not look to one factor as determinative, rather it will consider all four in light of the facts and circumstances of the particular case. Stewart, 881 P.2d at 632.

In the instant case, the 233-day delay between Foshee’s December 24,1994 arrest and August 21,1995 trial date is sufficient to require further consideration of the additional factors set forth in Barker. See State v. Dahms (1992), 252 Mont. 1, 825 P.2d 1214. In Stewart, this Court held “the first factor, length of delay, is of primary importance. The other factors need not be considered unless the length of delay is presumptively prejudicial.” Stewart, 881 P.2d at 632. This initial determination as to whether the length of delay triggers farther inquiry, is made by reviewing the entire delay without allocating the amount of delay attributable to either party. Dahms, 825 P.2d at 1220 (citing State v. Curtis (1990), 241 Mont. 288, 787 P.2d 306). As this Court explained in State v. Wombolt (1988), 231 Mont. 400, 753 P.2d 330, a delay of over 200 days will generally trigger further analysis of the speedy trial issue. Here, the 233-day delay requires inquiry into the three additional factors set forth in Barker.

In considering the reason for delay, this Court will determine which party is responsible for causing a given period of delay as well as the reason behind the delay. See State v. Gould (1995), 273 Mont. 207, 902 P.2d 532; State v. Curtis (1990), 241 Mont. 288, 787 P.2d 306. Because the 233-day delay triggered additional inquiry, the State had the burden of providing a reasonable explanation for the delay and showing that the defendant was not prejudiced by the delay. State v. Williams-Rusch (1996), [279 Mont. 437], 928 P.2d 169, 176-77; State v. Collier (1996), 277 Mont. 46, 55, 919 P.2d 376, 381-82. In the instant case, it is undisputed that the delay in bringing this case to trial can be attributed entirely to the State. The backlog at the State Crime Laboratory coupled with the volume of evidence (75 items) which needed to be analyzed was the explanation for the delay. The delay was thus “institutional” in nature. Although institutional delay is chargeable to the State it weighs less heavily than purposeful delay. Gould, 902 P.2d at 538. Because the delay in this case, attributable to the examination of over 75 pieces of evidence, is institutional, this Court will give the delay less weight than if it were purposeful delay.

The third element of the Barker test requires a defendant to assert his right to a speedy trial. In Williams-Rusch, this Court explained that a defendant’s failure to object to a trial date at the omnibus hearing must be considered in the defendant’s later assertion of a claim of denial of a speedy trial. Williams-Rusch, 928 P.2d at 178 (citing State v. Thompson (1993), 263 Mont. 17, 32-33, 865 P.2d 1125, 1135). At the May 10, 1995 omnibus hearing, Foshee’s counsel stated, “I want to point out to the court that, you know, I’m not waiving any speedy trial requirements that are pressed upon the State by calendaring the matter, and I’m so informing the comity attorney too.” Although it is clear that Foshee did not waive his right to a speedy trial, it is equally clear that he did not object to the August trial date. However, the instant case differs from Williams-Rusch in two respects. First, Foshee’s trial date was originally scheduled only three months after the omnibus hearing while the trial date in WilliamsRusch was scheduled six months after the omnibus hearing. Second, once Foshee realized there would be additional delay obtaining evidence from the State Crime Laboratory, his counsel moved to dismiss on speedy trial grounds. Foshee’s motion to dismiss was filed over one month before the August trial date. In contrast, the defendant in Williams-Rusch did not raise the denial of speedy trial until one week before trial. After considering each of these facts, we hold that Foshee did sufficiently assert his right to a speedy trial.

A criminal defendant must somehow show that he or she has been prejudiced by the delay before this Court will hold that the State has violated his or her right to a speedy trial. State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 617, 620. In determining the prejudice to the defendant, this Court will analyze three interests which the right to a speedy trial is designed to protect: (1) avoiding oppressive pretrial incarceration; (2) minimizing the defendant’s anxiety and concern; and (3) avoiding impairment of the defense. State v. Hembd (1992), 254 Mont. 407, 413-14, 838 P.2d 412, 416. Of these three elements, the possibility that the defense will be impaired is most serious because the inability of the defendant to adequately prepare his case skews the fairness of the entire system. Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

Foshee argues that the 233-day delay between his arrest and trial date impaired his defense in three respects. First, Foshee maintains that the incarceration was oppressive and hindered his ability to gather evidence, contact witnesses and otherwise prepare his defense. Second, Foshee contends that this delay gave the State seven months to prepare its case while he only had four weeks to review the evidence after it had been analyzed. Finally, Foshee maintains that this delay impaired his defense because the State failed to disclose slides of the laboratory tests until July 13, 1995. These claims of prejudice will be addressed in the order raised by Foshee.

Foshee contends that his incarceration prior to trial was oppressive. Although Foshee’s 233-day incarceration was a significant period of time, this delay was attributable to the processing of numerous pieces of evidence from the crime scene. Thus, the delay was institutional. As explained above, althoughinstitutional delay is chargeable to the State, it weighs less heavily than purposeful delay. Gould, 902 P.2d at 537-38. Under the circumstances of this case, where the delay is attributable to a backlog at the State Crime Laboratory and where Foshee did not request that bond be set until two months after filing his motion to dismiss, we hold that the delay was not oppressive.

The right to a speedy trial is also designed to minimize a defendant’s anxiety and concern. In Curtis, this Court held that a certain amount of anxiety and concern is inherent in being accused of a crime and recognized that

“[t]he State’s burden to show a lack of prejudice becomes considerably lighter in the absence of evidence of prejudice to the appellant.” It necessarily follows that the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.

Curtis, 787 P.2d at 316 (citation omitted). Foshee argues that the State’s failure to produce its evidence and analysis created excessive anxiety and concern. Foshee explains that he was placed at a disadvantage because the State had an opportunity to review the evidence for seven months while he was given only four weeks to prepare for trial.

As this Court has previously stated, “it is nearly impossible for the State to prove that anxiety and concern do not exist.” WilliamsRusch, 928 P.2d at 178 (emphasis added). Due to this difficulty, the State’s burden to show a lack of anxiety becomes significantly lighter in the absence of anxiety and concern which exceeds that inherent in being charged with a crime. Williams-Ruseh, 928 P.2d at 178. In the instant case, there is no evidence Foshee suffered any more anxiety than that normally inherent in being accused of a serious crime.

Although each of the three factors set out in Hembd must be considered when determining prejudice to a defendant, the most critical factor in gauging prejudice is whether a criminal defendant’s ability to present his case has been impaired. Weeks, 891 P.2d at 484. In the instant case, Foshee argues that he was prejudiced by the 233-day delay because the State failed to disclose slides of laboratory tests until July 13,1995, a little more than a month before the August 21,1995 trial date. However, Foshee’s counsel explained to the trial court that his own expert had carefully “examined all of the physical evidence that the State has taken in this case.” After Foshee’s expert had an opportunity to review all of this evidence, Foshee pled guilty to the charge against him. Foshee’s bare claim of prejudice notwithstanding, there is no indication that the delay in obtaining the evidence denied Foshee and his expert an adequate opportunity to review the slides or the test results. Although the 233-day delay placed the burden ofproof on the State, the State has provided a reasonable explanationfor the delay andhas shown that Foshee didnot lose the benefit of any evidence, witnesses, or defenses as a result of the delay.

There is no evidence that the delay actually prejudiced Foshee. In light of the sheer volume of evidence and the complexity of this case, we hold that the 233-day delay was excusable and did not, in fact, prejudice Foshee. We hold that the District Court did not err in denying Foshee’s motion to dismiss. Accordingly, we affirm.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, HUNT and GRAY concur.


author: JUSTICE GRAY

text:
    SONJA KING, Petitioner and Appellant, v. STATE COMPENSATION INSURANCE FUND, Respondent and Respondent Insurer for SUPER 1 FOODS, Employer.
    No. 96-482.
    Submitted on Briefs December 5, 1996.
    Decided April 29, 1997.
    54 St.Rep. 373.
    282 Mont. 335.
    938 P.2d 607.
    See C. J.S. Workmen’s Compensation § 292.

      For Appellant: Howard Toole, Attorney at Law, Missoula.
    For Respondent: Ann E. Clark, Legal Counsel, State Compensation Insurance Fund, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court..

Sonja King (King) appeals from the judgment entered by the Workers’ Compensation Court which concluded that she is not entitled to an increase in her permanent partial disability benefits. We affirm.

The sole issue presented on appeal is whether the Workers’ Compensation Court erred in concluding that King’s permanent partial disability benefits cannot be based on wages from fewer than four pre-injury pay periods.

BACKGROUND

King went to work in the bakery department at Super 1 Foods (Super 1) in Hamilton, Montana, in December of 1991. She was laid off in January of 1992, but returned to work in February, working less than full time. Starting in March of 1992, King’s hours increased.

King sustained a twisting injury to her neck on April 13, 1992, while working as a bakery salesperson. The State Compensation Insurance Fund (State Fund), Super l’s workers’ compensation insurer at the time of King’s injury, accepted liability and paid medical and disability benefits.

King continued working after her injury and took a new position with Super 1 as a cake decorator. She experienced pain and headaches, however, and eventually sought treatment from a chiropractor. Her chiropractic treatments continued until November of 1993, when the State Fund referred King to Dr. Catherine Capps (Capps), an orthopedic surgeon, for evaluation. Because King became pregnant in late 1993, Capps’ evaluation was delayed.

King continued working up until the birth of her child and then took maternity leave. Capps completed her evaluation and determined that King should not return to work as a bakery salesperson or cake decorator with Super 1. Soon thereafter, the State Fund began paying King temporary total disability benefits. Eventually, Capps concluded that King had reached maximum medical improvement and rated her impairment at six percent of the whole person. The State Fund subsequently converted King’s benefits to permanent partial disability.

In February of 1996, King petitioned the Workers’ Compensation Court for a determination of several issues, one of which was whether she was entitled to an increase in her permanent partial disability benefits. Prior to trial, the parties stipulated that the only remaining issue was the amount of King’s disability benefits and agreed to submit the issue to the court on briefs, together with undisputed facts and exhibits.

King advanced two theories in support of her request for an increase in her permanent partial disability benefit rate. She contended that her benefits should be calculated based on her earnings during the three pay periods immediately preceding her injury or, alternatively, that post-injury pay periods should be considered in calculating her benefits. The Workers’ Compensation Court rejected both contentions. It concluded, in pertinent part, that § 39-71-123(3), MCA (1991), does not permit the use of fewer than four pay periods in calculating permanent partial disability benefits when the claimant has worked for the employer for at least four pay periods and determined, on that basis, that King was not entitled to an increase in her permanent partial disability benefits. Judgment was entered and King appeals.

STANDARD OF REVIEW

The sole issue on appeal asserts error with regard to the Workers’ Compensation Court’s legal conclusion. We review conclusions of law to determine whether they are correct. Turjan v. Valley View Estates (1995), 272 Mont. 386, 390, 901 P.2d 76, 79 (citing Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 111, 885 P.2d 495, 498).

DISCUSSION

Did the Workers’ Compensation Court err in concluding that King’s permanent partial disability benefits cannot be based on wages from fewer than four pre-injury pay periods?

Workers’ compensation benefits are determined by the statutes in effect on the date of injury. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382 (citations omitted). Therefore, the 1991 version of the Workers’ Compensation Act applies to the calculation of benefits to which King is entitled as a result of her 1992 injury.

As a general rule, the weekly benefit rate for permanent partial disability is 66 2/3% of the wages received at the time of injury. Section 39-71-703(4), MCA (1991). The legislature has defined wages as follows:

For compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the employee’s wages, except if:
(a) the term of employment for the same employer is less than four pay periods, in which case the employee’s wages are the hourly rate times the number of hours in a week for which the employee was hired to work; or
(b) for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant’s employment history with the employer, in which case the insurer may use additional pay periods.

Section 39-71-123(3), MCA (1991).

King contends that her benefits should be calculated on the basis of the three pay periods immediately preceding her injury. Because she worked fewer hours — thus, earning substantially reduced wages — in the earliest of the four pay periods referenced in § 39-71-123(3), MCA (1991), she contends that application of the statute to the calculation of her benefits artificially lowers her benefit rate. As a result, she argues that the Workers’ Compensation Court erred as a matter of law in applying the statute pursuant to its terms. We disagree.

In construing a statute, courts are “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. By its terms, § 39-71-123(3), MCA (1991), establishes the general rule that workers’ compensation benefits are to be determined on the basis of the employee’s average actual earnings in the four pay periods immediately preceding the injury.

Section 39-71-123(3), MCA (1991), also contains exceptions to the “four pay period” general rule. The exception set forth in § 39-71-123(3)(a), MCA (1991), creates an alternative method for calculating wages when the employee has worked for the employer for less than four pay periods. Because King worked for Super 1 for more than four pay periods immediately preceding her injury, however, it is undisputed that the exception contained in § 39-71-123(3)(a), MCA (1991), is inapplicable here. Nor does the exception contained in § 39-71-123(3)(b), MCA (1991), which permits the use of additional pay periods in calculating benefits under certain circumstances, permit use of fewer than four pay periods in calculating a benefit rate.

King’s assertion of entitlement to a benefit rate based on the three pay periods immediately preceding her injury is not supported by the statutory language defining wages for purposes of compensation benefits under the Act. In essence, she requests a judicial amendment to § 39-71-123, MCA (1991), to add a third exception to the “four pay period” rule. We cannot insert into a statute what the legislature has omitted. See § 1-2-101, MCA.

King urges that using four pay periods to calculate her benefit rate artificially lowers that rate and contravenes the public policy underlying the Act. Specifically, she contends that § 39-71-105(1), MCA (1991), which is part of the legislature’s declaration of public policy, requires that her “wage-loss benefit should bear a reasonable relationship to actual wages lost as a result of a work-related injury or disease.” King cites to no authority, however, under which we could use this extracted portion of the public policy underlying the Act to vary the specific provisions enacted by the legislature in § 39-71-123, MCA (1991).

Moreover, King’s extraction of the “reasonable relationship” language from subsection (1) of § 39-71-105, MCA (1991), ignores other provisions of the public policy declaration. We must consider the statute as a whole. See Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 427, 715 P.2d 443, 445 (citations omitted). In this regard, § 39-71-105(1), MCA (1991), provides that

[w] age-loss benefits are not intended to make an injured worker whole; they are intended to assist a worker at a reasonable cost to the employer. Within that limitation, the wage-loss benefit should bear a reasonable relationship to actual wages lost....

In addition, § 39-71-105(4), MCA (1991), expressly provides that the provisions of the Act “must be construed according to their terms and not liberally in favor of any party.” Having concluded above that § 39-71-123(3), MCA (1991), does not permit the use of fewer than four pre-injury pay periods in determining King’s permanent partial disability benefits, it is clear that adopting King’s § 39-71-105(1), MCA, “reasonable relationship” argument would require us to both ignore explicit statutory language and liberally construe the Act in King’s favor in direct contravention of § 39-71-105(4), MCA (1991). We may not do so.

King also cites to Deshner v. Town and Country Foods, Inc. (1994), 266 Mont. 352, 880 P.2d 1300, and Gregory v. Michael Bailey & Sons Logging (1992), 255 Mont. 190, 841 P.2d 525, as examples of this Court’s willingness to recognize “adjustments” to the four pay period rule. She attempts to rely on these cases as support for her argument that fewer than four pay periods should be used to calculate her benefits, but her reliance is misplaced.

In Deshner, the employee had received a wage increase from $6 per hour to $7.25 per hour shortly before his injury. Deshner, 880 P.2d at 1301. In calculating Deshner’s disability benefit, the Workers’ Compensation Court used the four pay periods prior to Deshner’s injury, during which his hourly wage was $6. Deshner, 880 P.2d at 1301. On appeal, we observed that an injured employee’s hourly wage at the time of the injury is usually the same as it was over the course of the preceding four pay periods; in Deshner’s case, however, his actual wage at the time of the injury was substantially higher. Deshner, 880 P.2d at 1302. Under such a circumstance, the statutory provisions regarding “wages at the time of the injury” and “preceding four pay periods” were in conflict and, therefore, the exception contained in § 39-71-123(3)(b), MCA, applied because a calculation based on $6 per hour did not adequately reflect Deshner’s employment history. Deshner, 880 P.2d at 1303. The result was a benefit calculation based on Deshner’s actual wage at the time of injury.

Nothing in Deshner supports King’s argument that fewer than four pay periods may be used in calculating her benefits. There, we harmonized and gave effect to statutory provisions which conflicted because of the particular facts of the case. No such conflict exists here. Deshner does not authorize the use of three, rather than four, pay periods in calculating King’s permanent partial disability benefits.

Gregory is also inapplicable here. There, the employee was a laborer for a logging company whose business involved seasonal work. Gregory, 841 P.2d at 526. Gregory’s total employment history spanned 59 weeks, of which he worked 31. Gregory, 841 P.2d at 527. The Workers’ Compensation Court calculated Gregory’s weekly benefits by considering his entire employment history with the employer, pursuant to the exception for additional pay periods in § 39-71-123(3)(b), MCA, instead of only the four pay periods immediately preceding the injury, and then excluding the weeks in which no work was performed. Gregory, 841 P.2d at 527. On appeal, we affirmed the court’s application of the “additional pay periods” exception in § 39-71-123, MCA, and its exclusion of the periods of forced idleness in Gregory’s work history in calculating his benefits. Gregory, 841 P.2d at 527-28. We concluded that “where sporadic, seasonal work is at issue, it is reasonable when calculating ‘usual’ salary to calculate on a larger scale than four pay periods!.]” Gregory, 841 P.2d at 527.

King’s attempt to analogize her situation to the facts in Gregory is not persuasive. First, King was not a seasonal worker as in Gregory, and the fact that she worked fewer hours during one of the four pay periods immediately preceding her injury does not convert her employment to “seasonal, sporadic work.” Moreover, we concluded in Gregory that, based on the circumstances of the case, it was reasonable and appropriate to apply the § 39-71-123(3)(b), MCA, exception and calculate Gregory’s benefits by using additional pay periods rather than only the four pay periods immediately preceding the date of injury. Gregory, 841 P.2d at 527-28. Thus, Gregory does not support King’s argument that her benefits should be based on fewer than four pay periods.

Finally, King’s contention that her “short pay period” — in which she worked only a few hours — is akin to the “forced idleness” in Gregory and entitles her to the use of only three pay periods in calculating her benefits is without merit. Forced idleness as used in Gregory and Sandahl v. James A. Slack, Inc. (1987), 225 Mont. 208, 732 P.2d 831, which we cited in Gregory, connotes periods during which no work is performed due to the seasonal nature of the work or weather-related equipment unavailability. See Gregory, 841 P.2d at 527; Sandahl, 732 P.2d at 833. No such forced idleness is at issue here. In any event, however, exclusion of any period of forced idleness would result in consideration of additional pre-injury pay periods, not the use of fewer pre-injury pay periods for which King contends.

We conclude that neither § 39-71-123, MCA (1991), nor our case law authorizes the use of fewer than four pre-injury pay periods in calculating an employee’s permanent partial disability benefit rate when the employee has worked for four or more pay periods. On that basis, we hold that the Workers’ Compensation Court correctly concluded that King was not entitled to an increase in her permanent partial disability benefits.

Affirmed.

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


text:
    LYNN LABATTE and LYNDA LABATTE, d/b/a L & L SANITATION, Plaintiffs and Appellants, v. TOWN OF CULBERTSON, Defendant and Respondent.
    No. 96-550.
    Submitted on Briefs February 27, 1997.
    Decided April 29, 1997.
    54 St.Rep. 377.
    282 Mont. 342.
    938 P.2d 611.
    See C.J.S. Municipal Corporations § 265.

      For Appellants: Laura Christoffersen; Christoffersen & Knierim, Wolf Point.
    For Respondent: Greg Hennessy; Hennessy Law Office, Willis-ton, North Dakota.
   JUSTICE GRAY

delivered the Opinion of the Court.

Lynn Labatte and Lynda Labatte, d/b/a L & L Sanitation (L & L), sought a declaratory judgment in the Fifteenth Judicial District Court, Roosevelt County, concerning the Town of Culbertson’s ordinances on garbage collection and disposal. The District Court granted summary judgment to the Town of Culbertson (Town). L & L appeals and we reverse.

The dispositive issue on appeal is whether the District Court erred in concluding that the Town’s garbage ordinances provide a mandatory garbage fee which does not abate when the Town’s contracted garbage service is not used.

Background

Lynn Labatte and Lynda Labatte are residents of Culbertson, Montana, whose garbage disposal business, L & L Sanitation, is a Class D certified garbage carrier licensed by the Public Service Commission. The Town of Culbertson is a general power municipality and political subdivision of the State of Montana.

L & L had contracted with the Town to haul the Town’s garbage over a number of years. It last contracted to haul that garbage to a landfill in Williston, North Dakota, from May 1994 through June 1995. When L & L’s contract expired, the Town put its garbage-hauling needs out for bid. The new three-year contract was awarded to a garbage hauler located in Williston.

In January 1996, L & L advertised to haul commercial and residential garbage for citizens living inside and outside the Town limits. Residents of the Town contacted L & L to request service, and then contacted the office of the Culbertson Town Clerk to discontinue their Town garbage service. They were advised that they could not discontinue Town garbage service and that, if they did not pay their city garbage bill, their water service would be turned off.

L & L brought this action seeking a declaratory judgment that the Town, pursuant to its Town Code, cannot restrict collection of garbage within its limits to the Town’s contracted service, and that it has no power to shut off the water of any person or business disposing of garbage either through contract with L & L or otherwise. On cross-motions for summary judgment, the District Court determined that although the Town Code does not provide that the Town’s contracted garbage service is exclusive, Culbertson, Mt., Code § 7.02.070 provides that a fee will be collected under a fee schedule for ordinary garbage service and does not provide that the fee is abated if garbage service is not used. The court reasoned that “[t]he Town’s right to collect and enforce fees for service [s] lawfully provided, regardless of whether they are accepted, remains intact.” The court concluded that while the Town Code does not prohibit L & L from providing both ordinary garbage service and extraordinary garbage service to Town residents, nonuse of the Town’s contracted garbage services does not abate the fees for those services established under the Town Code. The court further concluded that L & L was not entitled to relief under § 7-13-4107, MCA, because L & L was not a private waste disposal service.

Standard of Review

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court reviews a grant of summary judgment under the same Rule 56(c), M.R.Civ.P., criteria used by the district court. Carelli v. Hall (1996), [279 Mont. 202], 926 P.2d 756, 759 (citation omitted). Here, the parties agree that there are no genuine issues of material fact; they disagree only as to questions of law. We review a district court’s conclusions of law to determine whether they are correct. Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631.

Discussion

Did the District Court err in concluding that the Town’s garbage ordinances provide a mandatory garbage fee which does not abate when the Town’s contracted garbage service is not used?

The parties direct our attention to various garbage-related sections of the Culbertson Town Code. Culbertson, Mt., Code § 7.02.070 provides:

For the collection of garbage, rubbish and refuse, and for the disposal thereof, there is hereby fixed and established the following schedule of monthly fees and charges to be placed upon the water bills of the person occupying the residence from which garbage, refuse or rubbish is collected ....

Culbertson, Mt., Code § 7.02.110 provides:

Any person owning, having collected or producing garbage, refuse, rubbish or wastes not subject to removal under the terms of this chapter may dispose of such garbage, refuse, rubbish or other wastes by transporting or arranging for the transportation thereof to the garbage disposal area of the town on such days and during such hours, to be determined by the Town Council, as the garbage disposal area may be open to the public.

The Town argues that if it had intended to exempt property from the garbage fee provided under § 7.02.070, it could — and would — have done so and that there is no opt-out provision in § 7.02.070. The Town argues that the only nonexclusive garbage-related provision of the Town Code is contained in § 7.02.110, which permits private individuals to either haul — or arrange for “custom” hauling of — garbage which exceeds the Town’s hauling ability because of size, weight or hazardous material. We disagree.

The terms of a writing are jurisprudentially presumed to have been used as they are primarily and generally accepted. Section 1-4-107, MCA. Under § 7.02.070, the garbage collection fee is only charged to “a person occupying the residence from which garbage, refuse or rubbish is collected[;]” further, § 7.02.070 expressly establishes the fee schedule “[flor the collection of garbage, rubbish or refuse ....” (Emphasis added.) Read in plain English, either alone or together, this language means that a fee may be charged only if garbage is collected from a residence; if no garbage is collected, no fee may be charged. Moreover, nothing in § 7.02.070 requires Town residents to have their garbage collected by the Town’s contract garbage collector. While the Town may desire to impose such a requirement, it has not done so in § 7.02.070.

The third Town Code section to which our attention is drawn, Culbertson, Mt., Code § 7.02.040, provides:

The Town Council shall have the power to advertise for bids for the purpose of entering into a contract providing for the removal of garbage, rubbish and refuse from the town. The contract is to be entered into on or before the first regular meeting of the Town Council in the month of January on or before the termination date of the existing contract and shall be awarded for a term not to exceed three (3) years to the lowest responsible bidder. The contract is to provide that garbage, rubbish and refuse is to be collected from each family dwelling or residential building two (2) times a week, and from each commercial establishment three (3) times a week, except that this section shall not require the collection of garbage, refuse or rubbish where streets and alleys are in a temporary condition which makes it impossible so to do and in case of failure to collect such garbage, refuse and rubbish, such failure shall not relieve the occupant of the premises from the payment of the garbage, refuse and rubbish collection fee hereinafter provided for.
The contract is to further provide that items of garbage, refuse and rubbish exceeding seventy-five (75) pounds by weight, or because of size not subject to placement in garbage containers, shall be collected from each family dwelling or residential building and commercial establishment at least once a month. [Emphasis added.]

This ordinance sets forth provisions to be included in any contract between the Town and a commercial garbage hauler for garbage collection and removal. However, the terms the Town has chosen to include in a contract between it and a garbage hauler cannot be read to impose a use or fee obligation on residents where none is provided in §§ 7.02.070 and 7.02.110.

We conclude that the Culbertson Town Code neither requires nor permits the Town to charge a fee for its garbage service unless that service is used. As a result, we hold that the District Court erred in concluding that the Town Code establishes a mandatory garbage fee that does not abate when the Town’s contract garbage service is not used. We, therefore, reverse the District Court’s grant of summary judgment to the Town and direct the entry of judgment for L & L on its complaint for declaratory judgment.

We observe that the parties also dispute — both procedurally and substantively — a conclusion by the District Court that L & L is not entitled to relief pursuant to § 7-13-4107, MCA. For the reasons stated briefly below, we determine that the court erred in reaching that conclusion because it related to an issue which was beyond the scope of relief sought. Thus, we reverse that conclusion on procedural grounds and decline to address it on the merits.

L & L’s declaratory judgment complaint sought a declaration interpreting the Town’s garbage-related ordinances in favor of nonexclusive Town contract garbage service and nonmandatory fees when the Town’s service was not used. The Town’s answer disputed L & L’s interpretation of the ordinances, asserted its municipal power to amend its ordinances at any time and requested dismissal of L & L’s complaint.

L & L’s motion for summary judgment again requested only an interpretation of the Town’s garbage ordinances. In its arguments, L & L warned that it might subsequently pursue an action pursuant to either § 7-13-4107, MCA, which sets forth requirements applicable when a municipality decides to switch from garbage service by a private motor carrier to exclusive public service, or the “takings” clause of the Montana Constitution; it provided legal analyses on those subjects ‘Tor illustrative purposes.” Noting L & L’s warning, the Town’s motion for summary judgment argued that the District Court should exercise its statutory discretion not to render a declaratory judgment because the judgment would not terminate the controversy; it sought summary judgment on the merits of the action pursuant to § 7-13-4107, MCA.

In granting the Town’s motion, the District Court first interpreted the garbage-related ordinances at issue in the Town’s favor. As discussed above, the court’s conclusion regarding the ordinances is erroneous.

The District Court then proceeded to address and resolve the issues relating to § 7-13-4107, MCA, in the Town’s favor. As outlined above, those issues were not part of L & L’s declaratory judgment complaint or the relief sought therein. In essence, the District Court permitted the Town to raise, in its summary judgment motion, substantive matters not at issue in the case and to prevail on those matters. The Town cites to no authority in support of such a procedure which would allow a court to render an advisory opinion on a potential but nonexistent legal action.

It is true, as the Town contends, that § 27-8-206, MCA, permits a district court to refuse to render a declaratory judgment where the judgment “would not terminate the uncertainty or controversy giving rise to the proceeding.” The District Court did not do so here, however. As set forth above, the District Court purported to resolve a declaratory judgment action premised entirely on Town ordinances on the basis of substantive issues beyond the scope of the relief sought in the pleadings. The court erred in doing so.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART, REGNIER, TRIEWEILER and HUNT concur.