author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    KATHE CAMPBELL and KEN CAMPBELL, Plaintiffs and Appellants, v. C.R. CANTY, M.D., Defendant and Respondent.
    No. 98-133.
    Submitted on Briefs August 27, 1998.
    Decided November 12, 1998.
    Rehearing Denied December 17, 1998.
    1998 MT 278.
    55 St.Rep. 1137.
    291 Mont. 398.
    969 P.2d 268.

      For Appellants: Michael J. Milodragovich, Milodragovich, Dale, Steinbrenner & Binney, Missoula
    For Respondent: E. Craig Daue, Garlington, Lohn & Robinson, Missoula
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Kathe Campbell (Kathe) was initially treated by Dr. Charles R. Canty (Dr. Canty) after she was severely bitten by a donkey. Kathe and her husband, Ken, (collectively referred to as “the Campbells”) filed a complaint against Dr. Canty alleging negligence in his care and treatment of Kathe. Trial was held in the District Court for the Second Judicial District, Silver Bow County, wherein the jury found that although Dr. Canty was negligent in his care of Kathe, Dr. Canty’s negligence did not cause injury to Kathe. We affirm.

¶2 The Campbells raise the following issues on appeal:

¶3 1. Whether the evidence at trial established that Dr. Canty’s negligence subjected Kathe to an increased risk of harm and lessened her chances for a better result thereby causing damage to Kathe.

¶4 2. Whether the District Court erred in denying the Campbells’ motion to alter or amend the judgment and for a new trial.

Factual and Procedural Background

¶5 The Campbells own and operate a small ranch outside Butte. On May 30,1993, Ken Campbell (Ken) had just returned home from the hospital after major surgery, thus Kathe set out on her own to attend to the ranch chores. When she attempted to repair a fence where one of their donkeys was corralled, the animal attacked her. The donkey knocked Kathe to the ground and pinned her there with the weight of his body. Her left arm was trapped beneath her, but her right arm was exposed. The donkey savagely and repeatedly bit Kathe on her right forearm before she was able to free her left arm and fend him off. Kathe managed to make it to the door of their house where Ken found her and called an ambulance.

¶6 Kathe was taken to St. James Community Hospital in Butte. The donkey’s bites had crushed the bones in Kathe’s forearm and had caused shearing, crushing and tearing of the skin, muscles, veins and nerves in her arm. Extensive amounts of tissue, muscle and nerves were destroyed by the bites.

¶7 Dr. Canty was the orthopedic surgeon on call when Kathe was brought to the hospital. After treatment by emergency room personnel to stabilize her vital signs, Kathe was transferred to Dr. Canty’s care. Dr. Canty, after examining the injury, informed Kathe and her family that there was a possibility that amputation would be necessary. Kathe asked Dr. Canty to save her arm.

¶8 In the initial surgery, Dr. Canty inserted a metal rod into the large bone in Kathe’s forearm. He cleaned the wound removing dead or dying tissue and muscle along with debris deposited in the wound from the donkey’s mouth. Dr. Canty noted that the ulnar artery in Kathe’s arm was injured and bruised, but the radial artery, although also bruised, was intact. He traced the radial artery to make sure that blood was flowing through the site of the injury and beyond.

¶9 In a second surgery approximately 68 hours later, Dr. Canty again cleaned the wound and removed more dead and dying tissue and muscle. He noted at that time that the ulnar artery was still bruised and, while it was pulsing a little, it was not acting as a major circulatory link to the hand. He also noted that the radial artery was still functioning and that there was a pulse through the site of the injury leading him to believe that blood was still flowing through the injured forearm to the hand.

¶10 Kathe’s family became dissatisfied with Dr. Canty’s treatment of Kathe as they began to realize that the condition of Kathe’s hand was slowly deteriorating. Hence, they took Kathe to Billings to be cared for by Dr. Curtis Settergren. Dr. Settergren is a board certified orthopedic surgeon with an additional qualification in hand surgery. He performed a number of surgeries on Kathe including a vein graft to bypass the injured artery and to allow blood to flow past the injured portion of the arm to the hand. While Kathe’s fingers initially responded to the increased blood flow from the bypass, the tissue in her fingers and hand began to die resulting in the amputation of Kathe’s arm below the elbow.

¶11 On June 12,1995, the Campbells filed a complaint against Dr. Canty and St. James Community Hospital alleging that Dr. Canty was pegligent in his care and treatment of Kathe. In their complaint, the Campbells alleged that Dr. Canty was negligent in failing to recognize the occlusion of the radial artery; failing to conduct or order objective testing of the blood flow to and from Kathe’s hand; and failing to consult with a vascular surgeon about performing a vein graft to bypass the injured portion of Kathe’s arm to allow blood to flow to Kathe’s hand which still had some viability. The Campbells also alleged that St. James Community Hospital was negligent in failing to independently monitor the adequacy of the care Kathe received. The hospital was subsequently dismissed from the suit with prejudice. ¶12 The case was tried to a jury on October 20 through 24,1997. The jury was instructed to consider whether Dr. Canty was negligent in his care of Kathe and, if so, whether Dr. Canty’s negligence caused an increased risk of harm to Kathe and/or reduced her chance for obtaining a better result. The jury found Dr. Canty negligent (without specifying what particular aspect of his care was negligent), however, they found that Dr. Canty’s negligence did not cause Kathe to suffer injury. ¶ 13 On November 13,1997, the Campbells filed a “Motion to Alter or Amend Judgment Regarding Issue of Causation and for Partial New Trial Regarding Issue of Damages.” In that motion, the Campbells requested that the District Court enter an order notwithstanding the verdict that Dr. Canty’s negligence had caused the Campbells to suffer damages. The Campbells also requested that the District Court order a partial new trial limited solely to the issue of damages sustained by the Campbells.

¶14 The District Court issued its order denying the Campbells’ motion on January 8, 1998. The court concluded that it was within the province of the jury to find negligence but no causation of damages from that negligence. The Campbells appealed contending that the uncontroverted evidence at trial established that Dr. Canty’s negligence caused Kathe damages because his negligence subjected her to an increased risk of harm and as a result she lost a chance for a better result.

Issue 1.

¶15 Whether the evidence at trial established that Dr. Canty’s negligence subjected Kathe to an increased risk of harm and lessened her chances for a better result thereby causing damage to Kathe.

¶16 The jury rendered a verdict that Dr. Canty was negligent in his care of Kathe but that this negligence did not cause injury to Kathe. The Campbells argue on appeal that the jury impermissibly disregarded uncontroverted, credible evidence that Dr. Canty breached his duty of care to Kathe causing compensable injury. The Campbells contend that the jury failed to follow the instructed law of the case and rendered a verdict that was not in accord with the evidence presented, thereby rendering a verdict that was contrary to law.

¶17 In reviewing a jury verdict, we do not decide whether the verdict was correct or whether the jury made the right decision. Wise v. Ford Motor Co. (1997), 284 Mont. 336, 343, 943 P.2d 1310, 1314. We only review whether there is substantial credible evidence in the record to support the jury’s verdict. Wise, 284 Mont, at 343, 943 P.2d at 1314. See also C. Haydon Ltd. v. MT Min. Properties, Inc. (1997), 286 Mont. 138, 151, 951 P.2d 46, 54; Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 422, 913 P.2d 641, 646; Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d 971, 976; Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 295, 951 P.2d 1326, 1334.

¶18 We have previously stated that substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion. Haydon, 286 Mont. at 151, 951 P.2d at 54 (citing Baird v. Norwest Bank (1992), 255 Mont. 317, 323, 843 P.2d 327, 331). Moreover, substantial evidence consists of more than a mere scintilla of evidence, but may be less than a preponderance of evidence, and, although it may be based on weak and conflicting evidence, in order to rise to the level of substantial evidence, it must be greater than trifling or frivolous. Haydon, 286 Mont. at 151, 951 P.2d at 54.

¶19 An attack upon a jury verdict as not supported by the evidence is proper only when there is a complete absence of any credible evidence in support of the verdict. All evidence and all inferences drawn therefrom must be considered in a light most favorable to the adverse party. Haydon, 286 Mont. at 151, 951 P.2d at 54 (citing Lackey v. Wilson (1983), 205 Mont. 476, 479, 668 P.2d 1051, 1053). Furthermore, if conflicting evidence exists, the credibility and weight given to the evidence is in the jury’s province and we will not disturb the jury’s findings unless they are inherently impossible to believe. Wise, 284 Mont. at 339, 943 P.2d at 1312 (citing Okland v. Wolf (1993), 258 Mont. 35, 39, 850 P.2d 302, 305; Silvis through Silvis v. Hobbs (1992), 251 Mont. 407, 411-12, 824 P.2d 1013, 1015-16).

¶20 The Campbells argue that the evidence on causation was uncontroverted. They assert that their expert witness, Dr. Kenneth Wilson, a board-certified orthopedic surgeon with an added qualification in hand surgery, firmly established that Dr. Canty’s negligence in failing to perform a bypass, or in failing to contact a vascular surgeon to perform a bypass, lessened Kathe’s chances of obtaining a better result and caused Kathe to endure numerous surgeries which increased her risk of harm.

¶21 Contrary to the Campbells’ assertions, Dr. Wilson’s testimony on causation was contradicted by Dr. Canty’s expert witness, Dr. Stephen Sears, who is board certified in orthopedic surgery, by Dr. Settergren and by Dr. Canty. Dr. Sears, Dr. Settergren and Dr. Canty testified that the damage to Kathe’s forearm from the bites was so extensive, Kathe’s chances of keeping her arm were minimal. They also testified that Kathe was forced to endure numerous surgeries, not because of Dr. Canty’s negligence, but because of the continuing need to treat the extensive trauma to Kathe’s forearm.

¶22 Dr. Settergren whose testimony was preserved through a videotape which was shown to the jury during trial, testified that the purpose of the bypass was to carry blood and oxygen to the wrist and hand and that it would not have had any significant affect on the massive trauma to the forearm. He also testified that multiple surgeries were necessary because he continually had to remove tissue and muscle from the bite area and, even if the bypass had been successful in saving Kathe’s hand, she still would have lost a substantial amount of tissue and muscle in the area of the massive trauma on her forearm. ¶23 Although Dr. Settergren stated that there was a “chance” that the tissues of the fingers could have been preserved had the bypass been done sooner, he testified as follows at the close of his deposition:

Q. Doctor, as a general rule, when you are considering the need for amputation on an arm, do you try to amputate as far out on the arm as possible?
A. As a general rule.
Q. And in Mrs. Campbell’s case, if the only, if the loss of tissue in her hand was the only reason for amputation, would you have amputated say, down at the wrist?
A. As far distal as I could.
Q. Yes. And is it fair to say that the reason in this case that she has an amputation below the elbow is because of the massive tissue loss in the upper forearm from the bite?
A. Well, I chose my level by what I could cover it with. The longer level, the more tissue you need to cover it— and I didn’t have, you know— I left it as long as I could and still cover the wound.
Q. You did what the injury would allow and what you had left over to work with?
A. Yeah, what viable tissue I had to cover the bone with.

¶24 Furthermore, while Dr. Wilson testified that there was a 90 to 95% chance that Kathe “would have had a very functional extremity,” Dr. Settergren testified that he told Kathe from the beginning that with the extensive damage to the muscles and nerves in her forearm caused by the bite, the tissue could be preserved but “function could be little more than a paperweight.”

¶25 In like manner, Dr. Sears testified that, although he did not disagree with Dr. Wilson’s statement that Kathe lost her hand because of the failure of the radial artery to perfuse and nourish the hand, amputations are generally performed as far out on the arm as possible and if Kathe’s only problem had been a lack of circulation through the radial and/or ulnar arteries into the hand, the amputation would have been at the wrist, not below the elbow. Additionally, Dr. Sears stated that in an injury such as Kathe’s, there is every reason to expect that there would be continuing tissue loss after the time of the first surgery. He explained that because of the shearing action in the bite, the skin was pulled loose in places from the nerves and veins causing the surrounding tissue to die off. He noted that even after Kathe transferred to Billings, there continued to be tissue death in the forearm making it necessary for Dr. Settergren to perform multiple surgeries on Kathe’s arm to remove this dead and dying tissue.

¶26 Dr. Sears further testified that the bypass eventually performed by Dr. Settergren was not designed to help the tissue in the forearm as the artery that feeds that tissue branches off above the elbow into smaller arteries and those arteries weren’t damaged. He stated that the damage at the wound was not coming from a lack of blood, but from the bite trauma itself.

¶27 Dr. Canty testified that he was dubious about Kathe’s chances with bypass surgery as there has to be tissue that is capable of accepting the blood brought in by the bypass as well as a means available for the blood to flow back out. He stated that he did not believe that was the situation in Kathe’s case because of the massive trauma to her forearm.

¶28 By the same token, contrary to Dr. Wilson’s opinion that waiting almost 72 hours to perform the second surgery increased the risk of infection and lessened Kathe’s chances for a better result, Dr. Sears testified that the delay in this case was appropriate. He stated that the standard time for a second debridement and closure of the wound is three to five days depending on the magnitude of the wound. Dr. Sears explained that the reason a doctor waits to close a wound of this type is that when a wound is contaminated as in a bite, the bacteria grows faster if the wound is covered. If the wound is left open, it stays cleaner and there is less tissue to debride the second time. He stated that the “ideal thing is, when you go back in three days, if it looks good, you can close it safely; whereas if I close it on the date of the injury, your infection rate goes up dramatically.” Indeed, Dr. Settergren testified that the two debridements performed by Dr. Canty were adequate as there were no signs of infection when Dr. Settergren first examined Kathe’s injury.

¶29 In summary, much of the testimony on causation of the Camp-bells’ expert witness, Dr. Wilson, was contradicted by Dr. Sears, Dr. Settergren and by Dr. Canty. Indeed, while Dr. Wilson testified that the amputation of Campbell’s hand was a direct result of not having the artery bypassed earlier, both Dr. Sears and Dr. Settergren testified that if Campbell’s only problem had been a lack of circulation through the arteries into the hand, the amputation would have been closer to the wrist and not below the elbow. The evidence supports the finding that Kathe’s wound was so devastating that, even if the bypass had been done earlier, it would not have prevented amputation, thus, the jury could legitimately conclude that Dr. Canty’s negligence did not lessen Kathe’s chance for obtaining a better result.

¶30 Furthermore, the evidence also supports a finding that the numerous surgeries Kathe endured were not intended to salvage Dr. Canty’s negligence, but instead, were a last-ditch attempt to accomplish a result that was doomed from the beginning to fail because of the devastation of the original injury. Thus, the jury could legitimately conclude that Dr. Canty’s negligence did not cause Kathe to suffer an increased risk of harm.

¶31 While conflicting evidence does exist in this case regarding whether Dr. Canty’s negligence caused injury to Kathe, as we stated elsewhere in this opinion, the credibility and weight given to that evidence is in the jury’s province. Wise, 284 Mont, at 339,943 P.2d at 1312. Thus, since we conclude that the jury’s findings are not “inherently impossible to believe,” we will not disturb those findings. Wise, 284 Mont, at 339,943 P.2d at 1312. Moreover, considering all of the evidence and all inferences that may be drawn therefrom in a light most favorable to Dr. Canty, as we are constrained to do, we hold that there is substantial credible evidence in the record to support the jury’s verdict.

¶32 Accordingly, we uphold the jury verdict in this case and we affirm the judgment of the District Court.

Issue 2.

¶33 Whether the District Court erred in denying the Campbells’ motion to alter or amend the judgment and for a new trial.

¶34 After the jury rendered its verdict in this case and the District Court had entered its judgment on that verdict, the Campbells filed a motion to alter or amend the judgment, pursuant to Rule 59(g), M.R.Civ.P., regarding the issue of causation and a motion for a new trial, pursuant to Rule 59(a), M.R.Civ.P., regarding the issue of damages. The Campbells contended that the jury impermissibly disregarded the substantial and uncontested evidence presented at trial and that they failed to follow the law of the case. The District Court denied the Campbells’ motion stating that it was within the province of the jury to listen to and evaluate the demeanor and credibility of the witnesses and that the court would not second guess the deliberations and decision of the jury.

¶35 [7,8] The amendment of a judgment is within the discretion of a district court, thus we review a court’s grant or denial of a motion to amend for an abuse of discretion. Bevacqua v. Union Pacific R. Co., 1998 MT 120, ¶ 36, [289 Mont. 36], 960 P.2d 273, ¶ 36 (citing Estate of Nielsen v. Pardis (1994), 265 Mont. 470, 478, 878 P.2d 234, 238). An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. Tanner, 275 Mont. at 430, 913 P.2d at 651 (citing Investigative Records of City of Columbus Pol. Dept. (1995), 272 Mont. 486, 488, 901 P.2d 565, 567).

¶36 In addition, the decision to grant or deny a new trial is within the sound discretion of the trial judge and we will not disturb that decision absent a showing of manifest abuse of that discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 30, [288 Mont. 1], 955 P.2d 160, ¶ 30 (citing Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259).

¶37 The Campbells contend on appeal that, in view of the “uncontested” evidence, the jury’s verdict in this case clearly mandated the District Court to grant their request to amend the judgment finding that Dr. Canty’s negligence caused the Campbells to suffer damages and to order a new trial to determine the amount of those damages. Contrary to the Campbells’ contentions, the evidence on causation was not “uncontested” as our discussion in the previous issue demonstrated. Moreover, the District Court was correct in concluding that it is within the province of the jury to listen to and evaluate the demeanor and credibility of the witnesses. Wise, 284 Mont. at 339, 943 P.2d at 1312.

¶38 There being no indication that the District Court “acted arbitrarily without conscientious judgment” or that the court exceeded “the bounds of reason resulting in substantial injustice,” Tanner, 275 Mont. at 430, 913 P.2d at 651, we conclude that the District Court did not abuse its discretion in denying the Campbells’ motion to alter or amend the judgment or for a new trial.

¶39 Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES LEAPHART and REGNIER concur.

JUSTICE TRIEWEILER

dissenting.

¶40 I dissent from the majority’s conclusion that there was substantial evidence to support the jury’s verdict that the defendant’s negligence did not cause damage to the plaintiffs.

¶41 The District Court correctly instructed the jury that “[a] doctor’s negligence is a cause of damage to the plaintiff if it causes increased risk of harm to the plaintiff or reduces his chance for obtaining a better result.” Montana Pattern Jury Instruction (Civil) 3.11; Aasheim v. Humberger (1985), 215 Mont. 127, 132, 695 P.2d 824, 827-28.

¶42 Plaintiffs contended that the defendant, C.R. Canty, M.D., was negligent by failing to adequately diagnose impairment to the blood flow through Kathe Campbell’s radial artery, and by failing to consult a specialist so that the necessary circulation of blood to her injured hand could be restored.

¶43 The evidence was that her medical records disclosed impairment to that blood flow by mid-day, June 2,1993, but that other than arranging for her transfer to Billings, nothing was done by Dr. Canty to treat that impairment, and that it was first treated by Curtis R. Settergren, M.D., more than thirty hours later. It was uncontroverted that human tissue which is denied blood for as little as four to six hours cannot survive.

¶44 Furthermore, Dr. Kenneth Wilson gave the following testimony:

Q. [APPELLANTS’ COUNSEL] Is it adequate orthopedic surgical care to simply allow the hand to remain there untreated when there’s suboptimal blood flow to the hand?
A. That’s just not acceptable.
Q. Would you explain why?
A. Well, if there’s suboptimal flow and you don’t monitor it, there’s a high likelihood that the hand’s going to die.
Q. Does that high likelihood increase the opportunity for increased risk to the patient; in other words, a more severe outcome could happen to the patient?
A. No question about it.
Q. Does it — does that same problem yield a greater likelihood of having a poorer result of the hospitalization and treatment?
A. Yes.
Q. And what effect did that have on Kathe Campbell’s ability to obtain a good result during her care under Dr. Canty at St. James Community Hospital?
A. That was the major reason she ended up with a bad result.
Q. Did that failure to call in other doctors or to do the graft result in an increased chance of risk to Kathe Campbell, in your opinion?
A. Definitely.
Q. And did it also heighten the probability that she would get a worse result?
A. Yes.
Q. Now, with respect to those percentages, whether it was a 75 percent chance of a likely outcome or a 90 percent chance of a likely outcome, is it still your testimony that the likelihood of a successful outcome was reduced or eliminated by the failure to deal with the circulatory emergency that Kathe had?
A. That’s correct.
Q. And was it similarly reduced or eliminated by the failure to recognize that circulation emergency?
A. Yes.
Q. And similarly, was the likelihood of a successful outcome reduced or eliminated by the failure to monitor and to test objectively, to have orders given that would have someone do that?
A. Yes.
Q. Were those percentages similarly reduced by the failure to have some kind of handy access through the fixed fiberglass cast so that testing could, in fact, be done?
A. Yes.
Q. Did that reduction in the percentage of successful outcome indicate a higher probability of harm to Kathe Campbell as a result of those inactions that Fve just listed off?
A. Most definitely.

¶45 Only three other physicians testified, Dr. Canty and Dr. Settergren, and Dr. Canty’s retained expert, Stephen R. Sears, M.D.

¶46 Dr. Canty did not testify directly on the issue of causation, as characterized by the District Court’s instruction. Neither did Dr. Sears. Nor is direct testimony from either witness on that issue cited in the majority opinion.

¶47 Dr. Settergren’s testimony is, at best, inconsistent regarding the issue of causation. At one point, when asked if an earlier bypass would have increased the likelihood of full revascularization to Kathe’s extremity, he testified that he could not say the outcome would have been different. However, that testimony did not, in substance, directly contradict the testimony on causation given by Dr. Wilson. He did testify that had Kathe’s arm been saved, it would have been substantially impaired. However, that is not the equivalent of testifying that she suffered no damage by the defendant’s failure to timely diagnose and treat her obstructed radial artery. New would disagree that a substantially impaired extremity is better than no extremity.

¶48 At another point in his testimony, however, Dr. Settergren testified that it was possible, although he could not testify that it was probable, that an amputation could have been avoided by more timely vascular treatment, and at a later point in his testimony he stated more specifically that had the bypass been done closer in time to the circulatory failure to assure better flow of blood to Kathe’s fingers, there was a chance that the tissues of the fingers could have been preserved.

¶49 Furthermore, everything about the course of Dr. Settergren’s treatment suggests that Kathe had a chance of successful treatment, had that treatment been timely. By the time she arrived in Billings, he stated that her hand had become ischemic, which meant that there was inadequate blood flow to maintain the tissue at that location. Nevertheless, even at that point, with partial necrosis of the hand apparent, he felt it was worth a try to revascularize the hand by using a bypass from the proximal radial artery (toward the elbow) to the distal artery (in the direction of her hand). He felt that some circulation could be reestablished to the hand by bypassing the area of the artery that had been injured. Dr. Settergren testified that he would not have done a bypass procedure of that type unless there was a possibility of retaining the appendage. However, everyone agreed that the longer circulation is cut off to a part of the body, the less likely it is that the life of the tissue at that location can be salvaged.

¶50 The jury found that the defendant was negligent and, therefore, necessarily found that he should have diagnosed the impairment to Kathe’s circulation sooner and referred her for treatment. Based on the uncontroverted evidence regarding causation, the jury could not have found that a delay in that treatment did not at least reduce Kathe’s chance for obtaining a better result. She was required to prove nothing more.

¶51 Contrary to the implication from the majority opinion, the issue in this case was not why Dr. Settergren amputated at the level where he did, nor the degree of function that Kathe would have had in her hand, had it been saved by timely restoration of circulation. Nor was it Kathe’s contention, as suggested in the majority opinion, that lack of circulation through the radial and ulnar arteries was her only problem. Although damage to the forearm may have contributed to the level of amputation, it was Kathe’s contention that her hand was salvageable and that the amputation would not have been necessary, had her hand received timely restoration of circulation.

¶52 Finally, Dr. Canty’s testimony that he was dubious about Kathe’s chances of successful bypass surgery did not directly address the issue of causation. He was discussing his state of mind before impairment to circulation through the radial artery had even been diagnosed, and his opinion did not even directly relate to Kathe’s hand, but instead related to the condition of her forearm. Furthermore, however Dr. Canty’s observation is characterized, it was not an opinion expressed in terms of medical probability, nor did it in any other way discuss the issue of causation, as it was defined by the court. Nothing cited in the majority opinion contradicts Dr. Wilson’s testimony regarding causation.

¶53 For these reasons, I dissent from the majority opinion. After thoroughly reviewing the testimony of all medical witnesses, I conclude that there was no evidence to contradict the testimony of Dr. Wilson that the negligence of the defendant reduced Kathe Campbell’s chance for obtaining a better result. Furthermore, all of the medical principles agreed upon by the expert witnesses lead to the inevitable conclusion that the failure to treat Kathe’s loss of circulation to the then viable tissue in her hand in a timely manner led to its necrosis and the ultimate need for the amputation of her arm.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE GRAY,

license: Public Domain

text:
    IN THE MATTER OF THE ESTATE OF MAURICE L. HUNSAKER, Deceased. ANNE BARNETT, an individual, Petitioner and Appellant, v. SHORLAND HUNSAKER, Respondent and Cross-Appellant.
    No. 97-569.
    Submitted on Briefs January 30, 1998.
    Decided November 17, 1998.
    1998 MT 279.
    55 St.Rep. 1144.
    291 Mont. 412.
    968 P.2d 281.

      For Appellant: James A. McLean, Drysdale, McLean & Nellen, Bozeman.
    For Respondent: Sarah Nash Zimmer, Nash, Guenther & Zimmer, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Anne Barnett (Anne) appeals from the July 17,1997 Findings of Fact, Conclusions of Law and Order of the District Court for the First Judicial District, Broadwater County, determining that she was not the common-law wife of decedent Maurice L. Hunsaker (Maurice) and was therefore not an heir to his estate. Shorland Hunsaker (Shorland), one of Maurice’s brothers, cross-appeals the District Court’s determination that Maurice died intestate. We reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

¶2 Sometime in 1985, Maurice and Anne met at a restaurant where Anne worked as a waitress. At that time, Anne was married to Raymond Price; Maurice had never married. Maurice and Anne became close friends initially, but they did not share an intimate relationship until sometime later. Anne separated from her husband in December 1986 and was divorced on February 30, 1987.

¶3 After Anne separated from her husband, she moved into a mobile home that Maurice bought for her. Maurice and Arme moved her personal effects into the mobile home the week prior to Christmas 1986. Anne testified that Maurice gave her a gift on every day of that week and that, on Christmas Day, Maurice gave her an engagement ring along with a matching wedding band and asked her to marry him. Anne wore the engagement ring at times, but she did not wear the wedding band. Anne stated that she never wore the wedding band because she did not believe that she had the right to wear it since she and Maurice did not have a formal wedding ceremony.

¶4 Maurice stayed nights with Anne at the mobile home until October 1987, when they moved into Maurice’s house near Toston. The title and mortgage on the house were in Maurice’s name alone. Maurice and Anne lived together in the house until Maurice’s death on September 27,1996.

¶5 During their relationship, Maurice farmed and ranched at his family’s ranch near Toston. Anne worked as an insurance clerk and receptionist at the Family Medical Clinic in Townsend.

¶6 Leonard Lambott (Lambott), a Toston area farmer and grain-elevator operator who knew Maurice and Anne for many years, testified at the bench trial on this matter that a sign in front of the house read, “Hunsakers, Home of the Classics” (referring to Maurice’s and Anne’s classic car collection). Lambott further testified that the message on the telephone answering machine, recorded by Anne, stated, “this is the Hunsaker residence.”

¶7 Anne testified that she and Maurice purchased a large grandfather clock together and displayed the clock in the living room of the house. Maurice had the pendulum of the clock engraved with an “H” for Hunsaker in the center of the pendulum and an “M” for Maurice intertwined with the left side of the “H” and an “A” for Anne intertwined with the right side of the “H.” Anne stated that she and Maurice were proud of the clock and showed it to people who came to the house.

¶8 Anne further testified that she and Maurice shopped, traveled and vacationed together, and went out to eat together every Friday night. In addition, Anne stated that they operated a classic car business together, took care of the yard together, and decorated the house for the Christmas season together. Anne testified that they often cooked dinner for each other.

¶9 Even though they lived together and did many activities together, Anne and Maurice kept separate bank accounts. Because Maurice had poor credit, Anne purchased many personal items for Maurice and he bought many items with Anne’s credit. Anne testified that Maurice generally reimbursed her for these purchases.

¶10 Maurice and Anne owned shares of stock in two companies as joint tenants. They also owned a time-share condominium at Island Park, Idaho as joint tenants. Maurice listed Anne as the secondary beneficiary to his sister on his Department of Veterans Affairs life insurance policy. Anne was listed as Maurice’s spouse on the Designation of Beneficiary forms for that policy. Although most of one form was filled in by Maurice, Anne testified that she filled in the word “spouse” on that form. Maurice had another life insurance policy that listed Shorland as the sole beneficiary.

¶11 Maurice and Anne filed separate income tax returns each year listing themselves as single instead of married. Anne testified that they filed as single persons because Maurice told her that he was in trouble with the IRS and that he did not want to get her involved with his financial problems. Anne testified that she did not know that she could have filed as married filing jointly. Gary Spitzer (Spitzer), the accountant who prepared Maurice’s income tax returns until 1993, testified that Maurice did not indicate to him that Maurice was married.

¶12 Steven Shapiro (Shapiro), a Montana City attorney who represented Maurice in several matters starting in the fall of 1993, testified that he once introduced Anne to a mediator as “Annie Hunsaker, Morrie’s wife.” Shapiro stated that neither Maurice nor Anne corrected his introduction. Shapiro sent Christmas cards to Maurice and Anne and addressed the cards to “Maurice and Anne Hunsaker.” Shapiro testified that he thought that Anne and Maurice were married and was surprised to read in Maurice’s obituary that Anne’s last name was not Hunsaker.

¶ 13 Lambott also testified that Anne and Maurice presented themselves as husband and wife and that he therefore perceived them as a married couple. Lambott further testified that Maurice referred to Anne as “my wife.” Tom Stonecipher (Stonecipher), a Bozeman attorney who had represented Maurice in the past, however, testified that Lambott once stated that Maurice and Anne were not married but just “long-term boy and girlfriend.”

¶14 Anne testified that she felt that she was married to Maurice during their relationship. She also testified that she thought that Maurice felt married to her.

¶15 Evidence introduced at trial showed that Anne was named as Maurice’s spouse on his Department of Veterans Affairs life insurance policy, on his death certificate, and in a magazine article written about Maurice. Anne was also listed as “Anne Hunsaker” on a membership card to a classic car club and on a receipt from a store in Townsend. Additionally, Anne introduced into evidence two wedding invitations that Shorland’s daughters sent to the house. Both invitations were addressed to “Mr. and Mrs. Maurice Hunsaker.”

¶ 16 Lee Stokes, a Bozeman attorney, represented a client that was purchasing land from Maurice and two of his brothers and their spouses. He testified that, in trying to make sure that the title to the land was clear, he asked Maurice if he had any premarital agreements with Anne and that Maurice responded that Anne was not his wife and that he did not involve her in business.

¶17 Shorland testified that Maurice called Anne his “sweetheart,” but not his wife. Shorland also testified that he was close enough to Maurice that if Maurice had been married, he would have told Shorland. Thomas Hunsaker, one of Maurice’s brothers, testified that he did not know if he considered Maurice and Anne to be married. ¶18 Maurice was listed as Anne’s “significant other” on two hospital consent forms that Anne signed. One of the consent forms initially listed Maurice as Anne’s “husband.” However, the word “husband” was crossed out and replaced with “significant other.” Betsie Rasmussen, the nurse who filled out the consent forms, testified that she filled them out with information that Anne gave her.

¶ 19 Shortly before his death, Maurice and Lambott had a conversation about wills. Maurice told Lambott that he wanted to leave his entire estate to Anne. Lambott advised Maurice to talk with an attorney.

¶20 On September 25,1997, Maurice contacted Stonecipher about preparing a will. Stonecipher testified that Maurice told him that Anne was his “common-law wife” and that he wanted to leave everything to her. Stonecipher further testified that Maurice said that he did not have a will and that his family would “eat [Anne] alive” if he died without a will leaving his estate to her. Because Stonecipher usually does not prepare wills, he and Maurice decided to speak again the following week to make arrangements for the preparation of a will. However, two days after their initial conversation and before a will could be drafted, Maurice died. He was 63 years old. At the time of his death, Maurice had five surviving brothers and one surviving sister. One brother, Harper Hunsaker, died shortly after Maurice.

¶21 On October 8,1996, the District Court appointed Anne special administrator of Maurice’s estate. Anne petitioned the court on October 25, 1996, to appoint her personal representative of the estate. Anne claimed in her petition that she was Maurice’s surviving spouse. On December 3, 1996, Richard Hunsaker, one of Maurice’s brothers, petitioned the court to appoint an unrelated third party as personal representative of Maurice’s estate or, in the alternative, to appoint “Anne Barnett, the surviving spouse of the Decedent,” as personal representative.

¶22 On February 5,1997, Shorland filed a reply to Anne’s petition to be named personal representative. Shorland asserted that Anne was not Maurice’s surviving spouse and that Maurice was not married at the time of his death. Shorland also asserted that a document that he filed with the District Court on October 18,1996, was Maurice’s valid, unrevoked will. Shorland requested that the District Court appoint Shorland and his siblings as co-personal representatives of Maurice’s estate.

¶23 Both parties agreed in the Pre-Trial Order filed on February 11, 1997, that if it was determined that Anne and Maurice had a common-law marriage then Anne would receive the entire probate estate and that there would be no need to determine the validity of the purported will that Shorland filed with the District Court. Trial was held on February 14,1997, March 7,1997, and April 25,1997, to determine if Anne was Maurice’s common-law wife. At the March 7, 1997 session, the District Court appointed Anne and Spitzer to serve as co-personal representatives pending its determination of whether Anne was Maurice’s common-law wife.

¶24 On July 17,1997, the District Court issued its Findings of Fact, Conclusions of Law and Order wherein the court concluded that Anne was not Maurice’s common-law wife. The court therefore ruled that Anne was not an heir to Maurice’s estate and it denied Anne’s petition to be named personal representative of that estate. The District Court also ruled that Maurice died intestate. From this order, Anne appeals the court’s ruling that she was not Maurice’s common-law wife and Shorland cross-appeals the court’s ruling that Maurice died intestate.

Standard, of Review

¶25 The standard of review of a district court’s findings of fact is whether the findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906 (citing Columbia Grain International v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678). See also Rule 52(a), M.R.Civ.P.

¶26 This Court adopted a three-part test in Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285, to determine whether a district court’s finding of fact is clearly erroneous. A finding of fact is clearly erroneous under the DeSaye test if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if, after reviewing the record, this Court is left with a definite and firm conviction that a mistake has been made. DeSaye, 250 Mont. at 323, 820 P.2d at 1287. See also Daines, 269 Mont. at 325, 888 P.2d at 906.

¶27 The standard of review of a district court’s conclusion of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-4). See also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674.

¶28 We have reviewed the record and conclude that, although substantial evidence exists to support the District Court’s findings of fact, the District Court misapprehended the effect of the evidence.

Discussion

¶29 Because our decision regarding the issue raised in Anne’s appeal is dispositive, we address only that issue:

¶30 Did the District Court err in concluding that Anne was not Maurice’s common-law wife?

¶31 Montana recognizes common-law marriages. Section 40-1-403, MCA. There is a disputable presumption that “[a] man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.” Section 26-1-602(30), MCA.

¶32 We have long held that the party asserting that a common-law marriage exists has the burden of proving: (1) that the parties were competent to enter into a marriage; (2) that the parties assumed a marital relationship by mutual consent and agreement; and (3) that the parties confirmed their marriage by cohabitation and public repute. Matter of Estate of Alcorn (1994), 263 Mont. 353, 356, 868 P.2d 629, 630 (quoting In re Marriage of Geertz (1988), 232 Mont. 141, 145, 755 P.2d 34, 37). The party asserting the existence of a common-law marriage must prove all three elements. Matter of Estate of Vandenhook (1993), 259 Mont. 201, 204, 855 P.2d 518, 520. Public policy generally favors the finding of a valid marriage. Geertz, 232 Mont. at 145, 755 P.2d at 37 (citing § 26-1-602(30), MCA).

¶33 In the case at bar, we first consider whether Maurice and Anne were competent to enter into a marriage. Under § 40-l-401(l)(a), MCA, a party may not enter into a marriage prior to the dissolution of an earlier marriage. Thus, Arme was not competent to enter into a marriage with Maurice, as a matter of law, until her dissolution of marriage from Price was finalized on February 30,1987. See Alcorn, 263 Mont, at 357,868 P.2d at 631. After Anne’s divorce was finalized, the record shows that both she and Maurice were competent to enter into marriage. Thus, Anne has carried her burden as to this element.

¶34 Second, we consider whether Maurice and Anne assumed a marital relationship by mutual consent and agreement. The mutual consent of the parties does not need to be expressed in any particular form. In re Estate of Slavens (1973), 162 Mont. 123, 126, 509 P.2d 293, 295 (quoting Welch v. All Persons (1929), 85 Mont. 114, 133, 278 P. 110, 115). Mutual consent can be implied from the conduct of the parties. Miller v. Townsend Lumber Co. (1968), 152 Mont. 210, 216, 448 P.2d 148, 151. See also State v. Newman (1923), 66 Mont. 180, 188, 213 P. 805, 807. This Court has stated that the mutual consent “must always be given with such an intent on the part of each of the parties that marriage cannot be said to steal upon them unawares.” Newman, 66 Mont, at 188, 213 P. at 807.

¶35 In Alcorn, Kathee, who asserted that she was common-law married to Fred, proved that she and Fred mutually consented and agreed to marriage. Fred gave Kathee a wedding ring that he designed. The ring contained two interlocking horseshoes made with Yogo sapphires, which reflected the couple’s shared interest in horses. Kathee testified that Fred designed the ring and gave her a matching bracelet. The couple also used the interlocking horseshoe design at their home by cementing horseshoes into the walkway leading to their house and etching their names below the horseshoes. Kathee also testified that she and Fred agreed that they were husband and wife. The combination of these factors led to our holding in that case that they mutually consented and agreed to a marriage. Alcorn, 263 Mont. at 357, 868 P.2d at 631.

¶36 Similar evidence found in the record in the case at bar shows that Maurice and Anne agreed to a marital relationship. Anne wore an engagement ring that Maurice gave her. While we recognize that Anne did not wear the accompanying wedding band, she explained that she did not wear the wedding band only because they did not have a “formal” wedding ceremony.

¶37 Likewise, the grandfather clock engraved with Maurice’s and Anne’s initials that they prominently displayed in their home has the same effect as the horseshoe design in the walkway in Alcorn. Both of these displays are evidence that the parties living together in the home mutually consented and agreed to a marital relationship. Finally, Anne testified that she felt married to Maurice. Anne also testified that she believed that Maurice felt married to her. The engraving on the pendulum of the grandfather clock is evidence of this in that Maurice considered Anne a Hunsaker. Thus, the effect of the evidence in the record is that Anne carried her burden of proving that she and Maurice mutually consented and agreed to a marital relationship.

¶38 Finally, we consider whether Anne proved that she and Maurice confirmed their marriage by cohabitation and public repute. There is no dispute that Maurice and Anne lived together for almost nine years. As to public repute, we consider how the public views the couple. Miller, 152 Mont. at 219, 448 P.2d at 152. Relevant to this inquiry is whether the couple held themselves out to the community as husband and wife. See Alcorn, 263 Mont. at 358-59, 868 P.2d at 632. A common-law marriage does not exist if the parties have kept their marital relationship secret. Vandenhook, 259 Mont. at 205, 855 P.2d at 520 (citing Miller v. Sutherland (1957), 131 Mont. 175, 184-85, 309 P.2d 322, 327-28).

¶39 In Alcorn, the record was clear that Fred and Kathee lived together for nine years. That, in turn, led us to focus in that case on whether Fred and Kathee established a common-law marriage by public repute. We noted that Kathee never changed her last name to Fred’s last name; that she did not list Fred as a beneficiary on her life insurance, health insurance, or retirement forms; that she filed her tax returns as a single person during the term of her relationship with Fred; that Fred stated in his will, which left Kathee one-half of the net value of his ranch and all of his household furniture and goods, that he was single; that two of Fred’s friends testified that Fred told them that he was not married to Kathee, and that Fred indicated to an attorney who drafted three wills for him, that he was single.

¶40 Nevertheless, we held in Alcorn that Fred and Kathee held themselves out to be husband and wife. Alcorn, 263 Mont. at 358, 868 P.2d at 632. In support of this holding, we set out that they spent all of their free time together, that Kathee wore the wedding ring that Fred gave her, that they regularly hosted people at the house, that Kathee spent time with Fred and cared for him during an extensive illness, that Kathee’s family referred to Fred as “Uncle Fritz,” that several witnesses testified that they considered Fred and Kathee to be married, and that Fred and Kathee held themselves out as a married couple to those witnesses. Alcorn, 263 Mont. at 358-59, 868 P.2d at 632.

¶41 In the case at bar, the record shows that Anne and Maurice held themselves out as a married couple and, therefore, had a reputation as such. The sign in the front of their home and the pendulum of the grandfather clock are evidence that Maurice and Anne held themselves out as husband and wife to those who visited their home. The answering machine message is evidence that Maurice and Anne held themselves out as husband and wife to those who called their home. Maurice’s brother Richard stated in a petition filed with the District Court that Anne was Maurice’s “surviving spouse.” One witness testified that Maurice called Anne “my wife.” An attorney who represented Maurice thought that Maurice and Anne were married. This attorney also testified that he was surprised to find out in Maurice’s obituary that Anne’s last name was not Hunsaker. Another attorney who had represented Maurice testified that Maurice called Anne his “common-law wife” shortly before his death. Several documents admitted into evidence referred to Anne as “Anne Hunsaker” or indicated that she was Maurice’s wife. The cumulative effect of this evidence is that Maurice and Anne held themselves out to the community as husband and wife and, consequently, had a reputation as a married couple.

¶42 Shorland argues that the fact that Maurice and Anne allowed people to assume that they were married is insufficient to establish a common-law marriage. Although we agree that allowing people to assume a marital relationship is not, by itself, enough to create a common-law marriage, it is evidence that the parties held themselves out to the community as married.

¶43 In addition, Shorland argues that the mutual consent and agreement necessary for a common-law marriage must take place at a set time. However, in Alcorn, this Court responded to a similar contention made by one of the parties by stating that this concept is not determinative. We noted that cohabitation and public repute “are continuing factors that extend through the life of the marriage.” Alcorn, 263 Mont. at 356, 868 P.2d at 630 (quoting Estate of Murnion (1984), 212 Mont. 107, 118, 686 P.2d 893, 899). While mutual consent and agreement to enter into a marriage must take place at a set time, the party asserting that a common-law marriage exists does not need to prove the exact date that this occurred. The party asserting the existence of a common-law marriage must, however, prove that the three elements of common-law marriage all existed at one time. The record in the instant case reflects that although Anne could not prove an exact date when all three elements were satisfied, there was a period of time, prior to Maurice’s death, when all three elements of common-law marriage existed.

¶44 In sum, although there was substantial evidence to support the District Court’s findings of fact, our review of the record leads us to the conclusion that the court misapprehended the effect of the evidence.

¶45 Accordingly, we hold that the District Court erred in ruling that the evidence presented did not establish that Anne was the common-law wife of Maurice.

¶46 Reversed and remanded for further proceedings consistent with this opinion.

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

JUSTICE GRAY,

dissenting.

¶47 I respectfully dissent from the Court’s opinion. It is my view that the Court has merely substituted its judgment for that of the District Court in weighing conflicting evidence and determining the credibility of the witnesses. This is not our proper role.

¶48 It is clear from the Court’s recitation of the factual background of this case that the evidence before the District Court conflicted on the primary questions of whether Anne and Maurice assumed a marital relationship by mutual consent and agreement and whether they had a public reputation of being husband and wife. With regard to the consent and agreement issue, the District Court found that the parties had not mutually consented and agreed to a marital relationship and, indeed, this Court agrees that substantial evidence supports that finding. At that point, our inquiry should end, because we do not substitute our judgment for that of the trial court even where there is evidence of record to support contrary findings. See Alcorn, 263 Mont. at 360, 868 P.2d at 633 (citation omitted).

¶49 Nor does Alcorn support the Court’s determination that Anne and Maurice had assumed a marital relationship by mutual consent and agreement. In Alcorn, the party seeking to establish the common-law marriage testified affirmatively that she and the decedent agreed that they were married and that they were husband and wife. Alcorn, 263 Mont. at 353, 868 P.2d at 631. On that basis, together with other supporting evidence, the district court found — and we upheld the finding — that the parties mutually consented and agreed to a common-law marriage.

¶50 No such clear statement of mutual consent and agreement to a marital relationship appears in the record now before us. Anne’s testimony that she “felt” married to Maurice, and that she “believed” he “felt” married to her, reflects how she and Maurice felt; it does not rise to mutual consent and agreement to a marital relationship. I daresay that many people who live together in an emotionally and physically monogamous relationship “feel” married. That is a far cry, however, from parties actually mutually consenting and agreeing to enter into a marital relationship. Thus, contrary to the Court’s statement, there is no evidence of record in this case similar to that in Alcorn which “shows that Maurice and Anne agreed to a marital relationship.”

¶51 With regard to the question of public repute as husband and wife, the Court is correct that there is evidence to support a finding that Anne and Maurice held themselves out as husband and wife. There also is evidence that they did not hold themselves out as husband and wife, however, and that evidence supports the District Court’s finding. The Court merely picks and chooses from the evidence of record that which supports its own determination — which is contrary to that made by the District Court — that Maurice and Anne held themselves out to the community as husband and wife and had a reputation as a married couple. In doing so, the Court ignores our oft-stated and fundamental rule that “[w]e will not substitute our judgment for that of the District Court even where there is evidence in the record to support contrary findings.” See Alcorn, 263 Mont. at 360, 868 P.2d at 633 (citation omitted).

¶52 What the Court’s opinion does here is to force feed the similarities between this case and Alcorn into identical results in the two cases. The problem is that the two cases were decided by the respective trial courts on conflicting evidence; it was the trial court’s job in both cases to weigh the evidence before it, determine the credibility of the witnesses and make findings. In Alcorn, the district court found that the parties had mutually agreed and consented to a common-law marriage based on substantially stronger evidence than is of record in this case. We upheld that finding and the court’s ultimate determination that a valid common-law marriage existed. Here, the District Court found — after weighing conflicting evidence and determining the credibility of the witnesses — that Anne and Maurice had not mutually consented and agreed to a common-law marriage and ultimately determined that a valid common-law marriage had not been proven. It is my view that, on this record, we must conclude that the District Court’s finding is not clearly erroneous and hold that the court did not err in determining that Anne did not establish a common-law marriage.

¶53 Finally, I note the Court’s conclusion that, notwithstanding the substantial evidence supporting the District Court’s findings of fact, “th[at] court misapprehended the effect of the evidence.” The Court does not explain what it means by this conclusion or how the District Court’s weighing of conflicting evidence constitutes a “misapprehension of the evidence” which allows this Court to substitute its judgment for that of the trial court on matters of fact. What is clear is that the Court is sympathetic to Anne’s plight; I am as well. It also is relatively clear that the members of this Court would have weighed the evidence differently in making findings had they been the trial court presiding over this case; I might have done so, too. It is not our role, however, to decide cases on the basis of which party pulls at our heartstrings. Nor is it our role to override a trial judge’s considered weighing of conflicting evidence in order to produce a result more to our liking from a human standpoint. If this is the road the Court intends to follow in applying the “misapprehends the effect of the evidence” prong of our clearly erroneous test for findings of fact, I cannot agree. Such an approach will produce result-oriented decisions which destabilize the state of the law, denigrate the role of Montana’s dedicated trial judges, and cheat litigants who prevailed at the trial court level. I dissent.

¶54 I would affirm the District Court’s findings and conclusions relating to the nonexistence of a common-law marriage.

¶55 With regard to the issue raised on cross-appeal and not separately addressed by the Court because of its erroneous reversal of the District Court on the common-law marriage issue, I would reverse and remand to the District Court for further proceedings. As discussed above, it is my view that the District Court’s finding that Anne was not Maurice’s common- law spouse is not clearly erroneous and is entitled to be affirmed. As a result, the cross-appeal question of whether Maurice died intestate, as contended by Anne, or died leaving a valid will, as asserted by Shorland, becomes critical.

¶56 The District Court found that no will had been located and ultimately ordered that the estate was an intestate estate. The record reflects, however, that a purported will signed by Maurice and dated March 30,1970, was attached to Shorland’s reply to Anne’s petition for adjudication of intestacy. Thus, the District Court’s finding is not supported by substantial evidence.

¶57 Moreover, while it is true that the parties and the trial court agreed that the validity of the purported will would not be determined until after the determination of Anne’s spousal status, it is entirely unclear why the District Court — having correctly determined that Anne was not a surviving spouse — went on to make a finding and order of intestacy which did not take into account the purported will which was of record and of which the court clearly was aware.

¶58 For these reasons, I would reverse and remand for further proceedings on the cross-appeal issue involving whether or not Maurice died intestate.

JUSTICE TRIEWEILER joins in the foregoing dissent of JUSTICE GRAY.


author: CHIEF JUSTICE TURNAGE

text:
    MONICA R. SMITH, Plaintiff and Appellant, v. GENERAL MILLS, INC., a corporation, Defendant and Respondent.
    No. 98-034.
    Argued September 29, 1998.
    Submitted October 20, 1998.
    Decided November 17, 1998.
    1998 MT 280.
    55 St.Rep. 1151.
    291 Mont. 426.
    968 P.2d 723.

      For Appellant: Keith A. Maristuen and John F. Jenks, Bosch, Kuhr, Dugdale, Martin and Kaze, Havre.
    For Respondent: K. Dale Schwanke, Jardine, Stephenson, Blewett and Weaver, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶ 1 Monica R. Smith (Monica) appeals from the order of the Twelfth Judicial District Court, Liberty County, denying her post-trial motions in an action filed by her against General Mills, Inc. (General Mills), for conversion of funds and breach of contract. Monica also appeals from the ruling of the District Court that General Mills was not barred from seeking enforcement of a separate contract under the Uniform Commercial Code’s statute of frauds. We affirm.

ISSUES

¶2 1. Did the District Court err in holding that John Smith was a “merchant” for purposes of applying the exception to the statute of frauds found under § 30-2-201(2), MCA?

¶3 2. Did the District Court err in failing to enter judgment as a matter of law?

¶4 3. Did the District Court err in denying Monica’s motion for an award of court costs?

BACKGROUND

¶5 Monica and her husband operated a farm north of Chester, Montana (the Smith farm or the farm), from 1945 until his death in 1984. After their father’s death, Monica’s sons, Frank Smith (Frank) and John Smith (Jack) operated the farm as partners for a number of years. Eventually, Jack went on to pursue other occupations, and Frank continued to operate the farm on his own. Frank died in 1993, leaving Monica as his sole heir. Monica nominated Jack as the personal representative of Frank’s estate.

¶6 During 1993 and part of 1994, Jack operated the Smith farm under a lease from Frank’s estate. Some of the land had been seeded with spring wheat prior to Frank’s death, and this crop was harvested by Jack in 1993. Unfortunately, the 1993 spring wheat crop was damaged by frost and so became marketable only as feed wheat. After harvesting the 1993 crop, Jack placed approximately 21,000 bushels of the feed wheat into storage on the farm. Although the 1993 feed wheat belonged to Monica, Jack was authorized to sell the wheat on her behalf at such times and at such prices as he deemed appropriate.

¶7 It was alleged by General Mills, and the jury in this case so found, that on August 12,1994, Jack, acting as an agent on behalf of Monica during the course of a telephone conversation between Jack and the manager of General Mills’ Joplin, Montana, grain elevator, entered a contract for the sale of the feed wheat to the Joplin elevator for a price of $2.55 per bushel (hereinafter the Joplin elevator contract or Joplin contract). Following this conversation, a written agreement confirming the terms of this contract was prepared and mailed to Jack. Although Jack admitted receiving the contract, he did not execute or return it to the Joplin elevator. Jack later denied the existence of the Joplin contract, and ultimately sold the feed wheat to General Mills’ Tiber, Montana, grain elevator for $3.00 per bushel under a contract formed on September 16, 1994 (hereinafter the Tiber elevator contract or Tiber contract).

¶8 The controversy between these parties arose when General Mills withheld $ 15,000 out of the payment issued to Monica on the Tiber elevator contract, asserting that due to Jack’s breach of the Joplin elevator contract, General Mills was entitled to an offset of the difference on the two contracts. In an effort to recover the withheld payment, Monica filed this complaint against General Mills alleging conversion of the funds or, in the alternative, breach of the Tiber elevator contract. General Mills counterclaimed, asserting that Monica, through her agent, Jack, was in breach of the Joplin elevator contract, and that General Mills was therefore entitled to offset the debt it owed to Monica on the Tiber contract by the amount of damages it sustained through nonperformance of the Joplin contract. Monica responded by asserting that enforcement of the Joplin contract was barred by the statute of frauds, because Jack had never signed the contract mailed to him by the Joplin elevator.

¶9 At the close of the evidence in a jury trial on the merits, the District Court ruled as a matter of law that enforcement of the Joplin elevator contract was not barred by the statute of frauds under the Uniform Commercial Code’s “merchant exception” to the statute of frauds. All other issues were submitted to the jury, and a verdict was issued in favor of General Mills. Findings of fact set forth in the jury’s special verdict include a finding that Jack had entered into a contract with General Mills’ Joplin elevator on behalf of Monica for the sale of 20,000 bushels of feed wheat, that this contract was breached when Jack refused to deliver the grain, and that under the terms of the contract, General Mills was entitled to cancel the contract and recover the cost of pricing out that contract at the market price for feed wheat as of the time of cancellation. At the close of trial, Monica filed a motion for new trial, or in the alternative for a judgment as a matter of law, and for an award of court costs. The District Court denied both of Monica’s motions, and this appeal followed.

DISCUSSION

¶10 Did the District Court err in holding that John Smith was a “merchant” for purposes of applying the exception to the statute of frauds found under § 30-2-201(2), MCA?

¶11 Whether or not a person qualifies as a merchant under the Uniform Commercial Code is a mixed question of law and fact. See Dawkins & Co. v. L&L Planting Co. (Miss. 1992), 602 So.2d 838, 843. Our standard of review as to conclusions of law, questions of law, legal components of ultimate facts, or mixed questions of law and fact is whether the lower court’s determination of law is correct. Maguire v. State (1992), 254 Mont. 178, 182, 835 P.2d 755, 757-58.

¶12 Section 30-2-201, MCA, sets forth the statute of frauds governing contracts for the sale of goods in Montana. The general provision of that statute reads in pertinent part:

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.

Section 30-2-201(1), MCA. Section 30-2-201(2), MCA, commonly referred to as the “merchant exception” to the statute of frauds, abrogates the requirement that a contract be in writing to be enforceable when the contract is between merchants:

Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.

Section 30-2-201(2), MCA. The term “merchant” is defined by § 30-2-104(1), MCA, as

a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

¶13 Although the question of whether a farmer may be deemed a merchant for purposes of § 30-2-201(2), MCA, is a matter of first impression for this Court, there are a number of other jurisdictions which have had occasion to address it. Despite the split of authority on this issue, a majority of courts have held that under the Uniform Commercial Code, a farmer may be included under the definition of “merchant” in some instances. See, e.g., Prenger v. Baker (Iowa 1995), 542 N.W.2d 805; Dawkins & Co., 602 So.2d at 838; Colorado-Kansas Grain Co. v. Reifschneider (Colo. App. 1991), 817 P.2d 637; Burkhart v. Marshall (Ohio App. 1989), 578 N.E.2d 827; Goldkist, Inc. v. Brownlee (Ga. App. 1987), 355 S.E.2d 113; Agrex, Inc. v. Schrant (Neb. 1986), 379 N.W.2d 751; Nelson v. Union Equity Co-op. Exchange (Tex. 1977), 548 S.W.2d 352. However, whether a particular farmer qualifies as a merchant cannot be determined through application of a per se rule; rather, it is a conclusion that must be reached on a case by case basis. Pierson v. Arnst (D. Mont. 1982), 534 F.Supp. 360, 362; Rush Johnson Farms, Inc. v. Missouri Farmers Ass’n., Inc. (Mo. App. 1977), 555 S.W.2d 61, 65.

¶ 14 The facts relied upon by the District Court in its determination that Jack was a merchant subject to the “merchant exception” to the statute of frauds were explicitly set forth in the record by the District Court and were not in substantial dispute at trial. Among the considerations given weight by the District Court were the fact that Jack had an operative knowledge of the grain marketing system, including how the buying and selling worked, how competition moved the market, and what factors affected price. He was familiar with all facets of marketing the grain, including knowledge of the product, how to produce it, how to store it, where and how to sell it, and how to negotiate the best terms possible for its disposition. Jack’s experience in marketing grain spanned a period of many years, and he had even been entrusted with the marketing of grain in a fiduciary capacity for his mother and his brother’s estate. Furthermore, Jack acknowledged in writing as part of the Tiber elevator contract that he was a merchant for purposes of marketing the grain he produced.

¶15 Our review of the record supports the District Court’s conclusion that Jack was a dealer in grain or otherwise by his occupation held himself out as having knowledge or skill peculiar to the marketing of grain. We therefore affirm the ruling of the District Court that the confirmation sent to Jack by the Joplin elevator was sufficient to satisfy the statute of frauds under § 30-2-201(2), MCA.

¶16 Did the District Court err in failing to enter judgment as a matter of law?

¶17 Our standard of review of denial of a motion for judgment as a matter of law under Rule 50(b), M.R.Civ.R, is whether substantial evidence supports the verdict of the jury. Kapner, Wolfberg & Assoc, v. Blue Cross (1995), 270 Mont. 283, 285, 891 P.2d 530, 532. Substantial credible evidence is evidence which a reasonable mind might accept as adequate to support a conclusion. Kneeland v. Luzenac America,Inc., 1998 MT 136, ¶ 45, [289 Mont. 201], 961 P.2d 725, ¶45. Upon reviewing a jury verdict the evidence must be viewed in the light most favorable to the prevailing party. Kneeland, ¶ 45.

¶18 Monica contends that the evidence in this case does not support the jury’s findings that an oral contract existed between Jack and General Mills’ Joplin elevator. We disagree. Jack’s testimony indicates that on the day the oral contract was formed he was out in the field combining barley, and so could not have placed the phone call to the Joplin elevator for the sale of the feed wheat. However, the testimony of the manager of the Joplin elevator was that Jack did in fact place such a call and that a contract was negotiated on that day. Furthermore, the secretary at the Joplin elevator testified that she overheard the telephone conversation between Jack and the elevator manager and shortly thereafter prepared the contract documents in conformity with the substance of the conversation.

¶19 The jury’s findings in this instance are dependent upon a determination of the credibility of each of these witnesses. When conflicting evidence exists, it is the province of the jury to judge the credibility and weight of the evidence; this Court will not retry a case or reweigh evidence on appeal. Kneeland, ¶ 45; Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 539, 885 P.2d 432, 439. We therefore hold that there is substantial credible evidence in the record to support the jury’s verdict that a contract was formed on August 12,1994, between Jack and General Mills’ Joplin elevator for the sale of20,000 bushels of feed wheat.

¶20 Monica also contends that no substantial evidence was presented at trial to support the jury’s verdict that November 2, 1994, was an appropriate date for General Mills to cancel and price out the Joplin contract. In particular, Monica relies upon testimony which indicated General Mills knew of Jack’s repudiation of the Joplin contract as early as September 20,1994, a date when the market price for covering the undelivered goods would have cost five cents less per bushel. It is Monica’s contention that General Mills was obligated to price out the Joplin contract at the market price for feed wheat on September 20,1994, rather than on November 2,1994.

¶21 Our review of the record reveals that there was substantial credible evidence to support the jury’s verdict that November 2,1994, was a reasonable date upon which to cancel and price out the Joplin contract. Upon being notified that Jack was not going to deliver the grain under the Joplin contract, the manager of the Joplin elevator contacted his superior in the regional office in Great Falls, Montana, who followed up on that information with a written letter to Jack requesting performance under the contract and setting a deadline for cancellation of the contract if performance was not forthcoming. When its deadline was not met, General Mills canceled the contract and priced out its damages at the market price for feed wheat on that day, as it was entitled to do under the terms of its contract.

¶22 Section 30-2-610(a), MCA, specifically authorizes an aggrieved party to a repudiated contract to await the performance of the repudiating party for a commercially reasonable time before deeming the contract breached. The jury found General Mills’ actions in urging Jack’s performance before canceling the contract to be commercially reasonable, and we see no reason to disturb this finding on appeal. We therefore affirm the decision of the District Court in denying Monica’s motion for judgment as a matter of law.

¶23 Did the District Court err in denying Monica’s motion for an award of court costs?

¶24 Monica assigns as her third error on appeal the failure of the District Court to award her court costs as the prevailing party on General Mills’ counterclaim. In reviewing a district court’s award of costs, our standard of review is whether the district court abused its discretion. Gilluly v. Miller (1995), 270 Mont. 272, 274, 891 P.2d 1147, 1148. In its Order on Post-Trial Motions, the District Court declined to award court costs to Monica on the grounds that Monica was not the prevailing party on General Mills’ counterclaim. General Mills abandoned its counterclaim at the close of the evidence, and no instructions were given to the jury in relation to the counterclaim. Monica made no objection to the lack of jury instructions on that issue, and the jury’s verdict made no reference whatsoever to the allegations in the counterclaim. Based on these considerations, we hold that the District Court did not abuse its discretion in denying Monica’s request for court costs.

¶25 For the reasons stated above, we affirm the rulings of the District Court on all issues presented in this appeal.

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


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT K. WEST, Defendant and Appellant.
    No. 98-184.
    Submitted on Briefs October 22, 1998.
    Decided November, 18, 1998.
    1998 MT 282.
    55 St.Rep. 1155.
    291 Mont. 435.
    968 P.2d 289.
    For Appellant: John O. Putikka, Attorney at Law, Thompson Falls.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Ass’t Attorney General, Helena; Robert Slomski, Sanders County Attorney, Thompson Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Scott K. West (West) appeals from the Twentieth Judicial District Court’s denial of his motion to suppress evidence. We affirm the decision of the District Court.

¶2 West was charged with Criminal Sale of Dangerous Drugs, Criminal Possession with Intent to Sell, Criminal Possession of Dangerous Drugs (two counts), and Use or Possession of Property Subject to Criminal Forfeiture. These charges arose out of an incident in which West was arrested in conjunction with the execution of a search warrant on his property near Hot Springs, Sanders County, Montana. Sanders County Attorney Robert Slomski had prepared an initial application for a search warrant. However, due to computer difficulties, he was unable to retrieve the document from his computer disc. Accordingly, Slomski requested assistance from Lake Deputy County Attorney, Mitchell Young. Judge C. B. McNeil, who presides over both Lake and Sanders Counties, resides in Poison and was more accessible to Young. Judge McNeil, based upon application from Young, issued the warrant authorizing a search of West’s residence in Sanders County.

¶3 West moved to suppress all evidence seized as a result of the warrant contending that Lake Deputy County Attorney Young, who prepared and filed the application for the warrant, had no authority to apply for a warrant to be executed in Sanders County. The District Court, the Honorable Michael C. Prezeau presiding, denied the motion holding that, even if there were a violation of statutory authority, the alleged violation did not affect West’s substantial rights. West entered a plea of guilty pursuant to §§ 46-20-104 and 46-12-204(3), MCA, reserving his right to appeal from the order denying his motion to suppress. We agree with the District Court’s analysis in denying the motion.

¶4 We review a district court’s conclusions of law regarding a motion to suppress to determine whether the district court’s interpretation of the law is correct. State v. Pipkin, 1998 MT 143, ¶ 10, [289 Mont. 240], 961 P.2d 733, ¶ 10.

¶5 West argues that only certain individuals are authorized by law to make application for search warrants. He references § 46-5-220, MCA, which provides: “A peace officer, the city or county attorney, or the attorney general may apply for a search warrant.” Section 46-5-220, MCA (emphasis added). West contends that when the statute states “the county attorney,” it means the county attorney in the county where the warrant is to be executed. Thus, he argues that Deputy Lake County Attorney Young had no authority to apply for a search warrant to be executed in Sanders County. He suggests that Deputy Lake County Attorney Young is nothing more than a “private person” outside of Lake County. We need not address the question of whether a deputy county attorney from one county has authority to apply for a search warrant to be executed in another county. Even assuming, arguendo, that there is merit to this argument, the error does not affect the substantial rights of the person whose property is searched. A search and seizure, whether with or without a warrant, may not be held illegal if any irregularity in the proceeding has no effect on the substantial rights of the accused. See § 46-5-103, MCA.

¶6 In denying West’s motion to suppress, the District Court stated:

When law enforcement officers go through the considerable effort to secure a search warrant, only to be told later that the search was invalid for some nonsubstantive reason having nothing to do with the existence or nonexistence of probable cause, there is an unfortunate and natural tendency for them to next time search for an exception to the warrant requirement that would allow them to proceed without submitting the proposed search for advance judicial scrutiny and subsequent legal hair splitting over what is contained within the four corners of the application and warrant. The law has a strong preference for search warrants, and that preference is subverted by niggling scrutiny of every word and phrase.

¶7 The Montana Constitution is very specific as to the requirements for a valid search. “No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.” Art. II, Sec. 11, Mont. Const. West does not allege that the warrant was deficient in any of these particulars. He does not contend that the warrant lacked a description of the place to be searched; nor does he contend that there was a lack of probable cause or that the application was not made under oath. As the District Court noted, West does not suggest that Judge McNeil would not have issued the search warrant had the exact same application been signed by Sanders County Attorney Slomski instead of Deputy Lake County Attorney Young.

¶8 We recently addressed the question of whether the exclusionary rule should be automatically applied where there is a technical violation of a statutory requirement in Pipkin. In Pipkin, the officer’s name was inadvertently omitted from the caption line of the search warrant in violation of § 46-5-223, MCA. Pipkin also claimed that the search warrant had not been served by the police officer named in the search warrant, as required by § 46-5-226, MCA. Pipkin, ¶ 7. There were no other statutory or constitutional infirmities alleged. Pipkin, ¶ 1. The district court adopted a per se application of the exclusionary rule for procedural violations. In reversing, we noted that we have refused to automatically invoke the exclusionary rule. Rather, we engage in a case-by-case analysis to determine whether the alleged error affects the accused’s substantial rights:

[T]he public policy of this state is to encourage law enforcement officers to seek prior judicial approval before conducting searches, and conduct those searches pursuant to search warrants. Therefore, technical attacks on warrants must be dealt with in a realistic manner. The correct approach is to analyze the facts and circumstances of each case to determine whether the irregularity in procedure has had an affect on the substantial rights of the accused.

Pipkin, ¶ 27.

¶9 In Pipkin, we concluded that the alleged violations did not affect Pipkin’s substantial rights. Likewise, in the case sub judice, we hold that the fact that the application for the warrant was signed by a deputy Lake County Attorney rather than by the Sanders County Attorney did not affect West’s substantial rights under Article II, Section 11 of the Montana Constitution, which guarantees that warrants not issue unless they describe the place to be searched or the person or thing to be seized, are based on probable cause, and are supported by oath or affirmation reduced to writing. The decision of the District Court is affirmed.

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


author: JUSTICE HUNT

text:
    SPECTRUM POOL PRODUCTS, INC., Plaintiff and Appellant, v. MW GOLDEN, INC., Defendant, Respondent, and Cross-Appellant.
    No. 98-101.
    Submitted on Briefs June 25, 1998.
    Decided November 19, 1998.
    1998 MT 283.
    55 St.Rep. 1157.
    291 Mont. 439.
    968 P.2d 728.

      For Appellant: Robert C. Lukes, Garlington, Lohn & Robinson, Missoula.
    For Respondent: Tammy Wyatt-Shaw, Robert J. Phillips, Phillips & Bohyer, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Spectrum Pool Products, Inc., appeals from an order of the Fourth Judicial District, Missoula County, dismissing this action on grounds that the court did not have personal jurisdiction over defendant MW Golden, Inc. We reverse.

¶2 The issue is whether under the facts of this case a Montana court may exercise personal jurisdiction over MW Golden, Inc., a Colorado corporation.

¶3 Spectrum Pool Products, Inc., (Spectrum) is a Montana corporation which manufactures and distributes aquatic and pool products. In August of 1996, MW Golden, Inc., (MW Golden) contacted Spectrum at its Missoula, Montana office and subsequently contracted to purchase from Spectrum a mechanical device known as a Swimlift, which assists in raising or lowering disabled individuals into a swimming pool. The Swimlift was to be installed at the swimming pool facility at the Arapaho Community College in Colorado, which MW Golden had contracted to modify.

¶4 The parties, working with the project architect, negotiated by telephone and in writing concerning price, delivery, servicing, and specific design elements to be included in the Swimlift. They agreed that Spectrum would finalize the design and manufacture the Swimlift at its facility in Missoula and that payment by MW Golden was due at Spectrum’s Missoula office. Spectrum was then to ship the Swimlift to MW Golden in Colorado, where MW Golden was to install it at the Arapaho Community College.

¶5 Spectrum shipped the Swimlift directly to Arapaho Community College in December 1996, and MW Golden paid $8,348.35 of the $10,368.22 purchase price. In January or early February of1997, MW Golden shipped the Swimlift back to Montana, where Spectrum repaired damages to it. After these services were completed, Spectrum shipped the Swimlift back to Colorado.

¶6 Spectrum filed this action in April 1997 to recover the amount remaining due under the contract, the costs of repairing the Swimlift, and the shipping charges for the repairs completed in Montana. In its answer to the complaint, MW Golden moved to dismiss, alleging, among other things, that the State of Montana lacked personal jurisdiction over it. The District Court agreed and dismissed the case. Spectrum appeals, and MW Golden cross-appeals the court’s finding that it transacted business in the State of Montana.

DISCUSSION

¶7 Under the facts of this case, may a Montana court exercise personal jurisdiction over MW Golden, Inc., a Colorado corporation?

¶8 The range of Montana’s long-arm jurisdiction is codified at Rule 4B(1), M.R.Civ.P.:

(1) Subject to jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
(a) the transaction of any business within this state;
(b) the commission of any act which results in accrual within this state of a tort action;
(c) the ownership, use or possession of any property, or of any interest therein, situated within this state;
(d) contracting to insure any person, property or risk located within this state at the time of contracting;
(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person; or
(f) acting as director, manager, trustee, or other officer of any corporation organized under the laws of, or having its principal place of business within this state, or as personal representative of any estate within this state.

Spectrum does not allege that MW Golden is “found within” Montana under the first sentence of the rule; rather, it argues that specific acts, as provided for in the second portion of Rule 4B(1), subject MW Golden to jurisdiction in Montana.

¶9 Jurisdiction may be established if a defendant maintains “minimum contacts” with the forum state via one or more of the acts enumerated in Rule 4B(1), M.R.Civ.P, and if the exercise of jurisdiction does not offend due process. Simmons v. State (1983), 206 Mont. 264, 272, 670 P.2d 1372, 1376. Both of these requirements must be satisfied.

¶10 MW Golden argues that its contacts with Montana were random, fortuitous, attenuated and due to the unilateral activity of the State of Colorado, which set the contract criteria for modifications to the Arapaho Community College swimming pool. However, as the District Court noted, the allegations of a plaintiff’s complaint must be taken as true for purposes of deciding a motion to dismiss. Nelson v. San Joaquin Helicopters (1987), 228 Mont. 267, 271, 742 P.2d 447, 449. The allegations in Spectrum’s complaint are sufficient to establish that MW Golden potentially had transacted business within Montana pursuant to Rule 4(B)(1)(a), M.R.Civ.R, and entered into a contract for services to be rendered within the State of Montana pursuant to Rule 4(B)(1)(e), M.R.Civ.P.

¶11 The allegations of the complaint establish that MW Golden contacted Spectrum in Montana. They contracted by telephone for the manufacture and sale of a product in Montana. Numerous telephone contacts and correspondence came from MW Golden to Spectrum in Montana. Later, at MW Golden’s behest, Spectrum provided repair services to the Swimlift in Montana. Finally, MW Golden refused to make full payment for the Swimlift, payment which was due in Montana. We conclude that MW Golden engaged in a transaction within Montana by which it purposefully availed itself of the opportunity to conduct business within this state.

¶12 The second prong of the long-arm jurisdiction analysis requires us to determine whether the exercise of jurisdiction over MW Golden offends traditional due process notions of fair play and substantial justice. Montana has adopted the Ninth Circuit’s three-part test for determining whether the exercise of jurisdiction comports with due process:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking its laws;
(2) the claim must be one which arises out of or results from the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must be reasonable.

Simmons, 206 Mont. at 276, 670 P.2d at 1378, citing Data Disc, Inc. v. Systems Tech, Assoc, Inc. (9th Cir. 1977), 557 F.2d 1280, 1287.

¶13 The first part of the three-part test is whether MW Golden engaged in a transaction within the forum state, Montana, by which it purposely availed itself of the opportunity of conducting business within the forum. MW Golden argues that its purchase of the Swimlift from Spectrum was a condition unilaterally imposed by a third party, exempting it from Montana jurisdiction under this first prong of the test, citing May v. Figgins (1980), 186 Mont. 383, 607 P.2d 1132. The record, however, establishes that unlike the defendant in May, MW Golden was well aware of the necessary involvement of the forum state before it entered the contract; it was aware of the restriction that the Swimlift must be purchased from Montana’s Spectrum when it bid on the Arapaho Community College swimming pool modification contract. This distinction between a knowing and an unknowing decision to enter a particular forum renders the unilateral act of a third party exception argued by MW Golden inapplicable in this case.

¶14 The second part of the three-part test is not at issue. It is undisputed that Spectrum’s claim results from MW Golden’s forum-related activities.

¶15 Proceeding to the third part of the test, we have identified the following factors for determining whether the exercise of jurisdiction is reasonable: the extent of the defendant’s purposeful intersection into Montana; the burden on the defendant of defending in Montana; the extent of conflict with the sovereignty of the defendant’s state; Montana’s interest in adjudicating the dispute; the most efficient resolution of the controversy; the importance of Montana to the plaintiffs interest in convenient and effective relief; and the existence of an alternative forum. Nelson, 228 Mont. at 271-72, 742 P.2d at 450. ¶ 16 MW Golden argues that unlike the defendants in other cases in which long arm jurisdiction has been found (Parker Bros. Farms, Inc. v. Burgess (1982), 197 Mont. 293, 642 P.2d 1063; Prentice Lumber Co. v. Spahn (1970), 156 Mont. 68, 474 P.2d 141; and State ex rel. White Lumber Sales, Inc. v. Sulmonetti (Or. 1968), 448 P.2d 571), it did not establish a course of dealing with the plaintiff by consummating multiple transactions over a period of time. Here, there was only one transaction, albeit one accomplished by multiple phone calls and letters. Thus, MW Golden asserts that the extent of its purposeful interjection into Montana was minimal. However, it is clear that MW Golden purposefully inteijected itself into Montana to the extent of contracting with Spectrum, and MW Golden has cited no clear authority to support its contention that the number of transactions is determinative of this issue.

¶17 A burden is placed upon MW Golden by forcing it to defend in Montana, to the extent that MW Golden’s witnesses and the allegedly damaged Swimlift are located in Colorado. However, a similar burden would be placed upon Spectrum if Montana did not assume jurisdiction and Spectrum was forced to bring this action in Colorado.

¶18 No significant conflict with the sovereignty of the defendant’s state has been established as a result of a Montana court exercising jurisdiction over MW Golden in relation to this contract.

¶19 Montana’s interest in adjudicating the dispute is to assist a Montana corporate business in obtaining performance on a contract. MW Golden maintains that its order of the Swimlift had little “effect in the forum;” i.e., the importance to Montana of Spectrum’s interest in convenient and effective relief in the form of recovering the $2,000 remaining due on the contract is negligible in the grand scheme of things. The amount in controversy is not a legal consideration for due process purposes, however.

¶20 The most efficient resolution of the controversy would arguably be in Colorado for the convenience of MW Golden’s witnesses and because the Swimlift is located in Colorado; however, it is more convenient and thus most efficient for the plaintiff Montana corporation and its witnesses to sue here in Montana. The same reasoning applies with regard to the importance of Montana to the plaintiff’s interest in convenient and effective relief. Finally, as to the seventh factor, there is no question that an alternative forum exists in Colorado.

¶21 After considering the above tests and factors in determining whether the exercise of jurisdiction over MW Golden in this cause comports with due process, we conclude that it does. For that reason, and because MW Golden has established minimum contacts with the State of Montana, we hold that the District Court properly had jurisdiction to decide this action. We therefore reverse the order of the District Court dismissing this case, and remand for further proceedings consistent with this Opinion.

JUSTICES TRIEWEILER, GRAY, REGNIER and LEAPHART concur.