author: JUSTICE WEBER

text:
    In the Matter of the ESTATE OF ELEANOR T. TOWNSEND, Deceased.
    No. 89-623.
    Submitted on Briefs May 3, 1990.
    Decided May 30, 1990.
    793 P.2d 818.
    Robert L. Johnson, Lewistown, for appellant.
    Leonard H. McKinney, Lewistown, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

In the Tenth Judicial District, Fergus County, William Townsend was appointed personal representative of his wife’s estate as directed by her will. Based upon claimed inadequacies in the inventory and appraisal, Robert Townsend, son of the deceased petitioned for removal of William as personal representative. The petition was granted and William Townsend appeals that decision. We affirm.

The sole issue for our consideration is whether the District Court erred in removing William Townsend as personal representative of his wife’s estate?

Eleanor Townsend died testate on February 4, 1988, in Fergus County. Her will provided in part:

“SECOND: If my husband, WILLIAM F. TOWNSEND, survives me by at least 90 days, I devise my property as follows:
“To my said husband, all property that we own jointly, whether in joint tenancy with right of survivorship or not.
“To my son, ROBERT L. TOWNSEND, all the rest, residue and remainder of my property. This includes my household furniture, goods and equipment and my personal effects.
“If my said husband fails to so survive me, then I devise all my property to my said son.
“FOURTH: I designate my said husband, WILLIAM F. TOWNSEND, or if he declines or is unable to so act then my said son, ROBERT L. TOWNSEND, as personal representative of my estate, either to act without bond and with all the powers granted in the Montana Probate Code.”

Pursuant to his duties as appointed personal representative, William Townsend (William) petitioned for formal probate of the will and published a Notice of Hearing. Subsequently, Robert Townsend (Robert) signed a Waiver of Notice requesting the District Court to admit the will to probate, determine testacy and heirs, and appoint William personal representative. The District Court granted formal probate and appointed William as personal representative of his wife’s estate.

William proceeded with the administration of the estate. He sent a draft Inventoiy to Robert, showing a total value of $262,640.66. Robert returned it with comments written on it indicating it was not complete. William noted Robert correctly pointed out that two individual banking accounts were omitted and sent an apology to Robert. Then, on September 2, 1988, William filed an Inventory and Appraisement (hereinafter “I & A”) showing a total value of $237,975.85; a Receipt; and a Petition for Elective Share. The proposed receipt showed the delivery to William of all of the property listed in Schedule F as jointly owned property and as exempt property, which essentially included the entire residual estate.

Robert appeared at the hearing on the Petition for Elective Share and objected to the computation of the augmented estate, suggesting that the I & A was incorrect in that: (1) it did not include certain bank accounts to which decedent had access; (2) the value of the 1963 Studebaker should be $2,000, not $100 as it was listed in the inventory; (3) the inventory incorrectly reflected the value of certain jewelry and did not list others; (4) the silver and gold plated utensils were not separately appraised; and (5) certain items of furniture were not separately appraised.

The District Court concluded that the I & A did not meet the requirements of sec. 72-3-607, MCA, and did not serve as a basis for the computation of the augmented estate, the elective share and the attorney’s fee. In an order dated February 8, 1989, the District Court denied William’s petition for elective share, and required that a “proper” I & A be completed.

On May 3, 1989, Robert filed a Petition for Removal of William as personal representative, pursuant to sec. 72-3-526, MCA. He based the petition on William’s failure to comply with sec. 72-3-607, MCA. As of the date of the filing of the petition, William had not yet filed an Amended I & A.

On June 14, 1989, prior to the hearing on the Petición for Removal, William filed an Amended I & A showing a total value of $227,080.72. A hearing was held and the Petition for Removal was denied. The District Court noted that although there were general statements in the I & A to the effect that John C. Lewis was employed to aid in the appraisal of jewelry, sec. 72-3-607, MCA, requires that the personal representative “appoint” persons to assist him in ascertaining the fair market value of the decedent’s property. It further noted that form INH-1 has spaces for the signatures and names and addresses of such persons and a designation of the items appraised by them by using the appropriate letter. As a result, the District Court ordered' that William prepare and file within twenty days a Second Amended I & A in strict compliance with the provisions of sec. 72-3-607, MCA, and with the INH-1 form provided by the Montana Department of Revenue.

William timely filed a Second Amended I & A identical with the prior one except that it was signed by John C. Lewis as the Appraiser with the language “Not certified gemologist and items not scientifically tested” written by his name. Robert renewed his Petition for Removal of the personal representative contending that William had failed to file an inventory listing all property of the decedent, and that it was in the best interest of the estate that the personal representative be removed. This time the District Court granted the Petition for Removal, concluding that there were genuine issues about the values of certain items; that all items belonging to the decedent were not listed and valued or were not listed with sufficient value; that William had failed to prepare and file an I & A as required by the statute, and the property was not sufficiently detailed to permit the computation of the surviving spouse’s elective share and the residuary value; and, that approximately 18 months had passed since the appointment of William as personal representative and an acceptable I & A had not been filed. It farther noted that the will named Robert as the alternate personal representative. Concluding that it would be in the best interests of the estate, the District Court removed William as personal representative and appointed Robert as successor personal representative. From that decision, William appeals.

William contends the District Court abused its discretion in removing him as personal representative for failing to file an I & A satisfactory to one of the legatees. He maintains he made a good faith effort to fulfill his obligations as personal representative. He urges that omissions from his inventories, not attributable to bad faith, do not warrant his removal and any misconduct must be willful to justify removal of a personal representative. He contends that the requirement in sec. 72-3-607, MCA, to “list” all property means to catalog it, not to “itemize” each and every particular item.

Robert maintains that William’s I & A, filed simultaneously with a Receipt and Petition for Elective Share, would have denied him any share in decedent’s estate. Robert maintains that the values in the I & A are incorrect and that the I & A does not comply with legal requirements.

Section 72-3-526, MCA, in substance states that cause for removal of a personal representative exists “when removal would be in the best interests of the estate” or that the personal representative has disregarded an order of the court, or has mismanaged the estate or failed to perform any duty pertaining to the office. The applicable standard so far as this Court is concerned is whether the District Court has abused its discretion. Matter of Estate of Stone (1986), 223 Mont. 327, 330, 727 P.2d 508, 511. In our review of the removal of the personal representative, we have in mind the holding of this Court in Matter of Estate of Robbin (1987), 230 Mont. 30, 747 P.2d 869, where this Court pointed out that an order of removal is considered harsh and severe and that irregularities not directly harmful will be overlooked, with the further limitation that if the court can remedy a matter readily, no removal will be ordered.

Pursuant to sec. 72-3-607(1), MCA, a personal representative must timely file an inventory which shall include listing of all property which:

“(a) the decedent owned, had an interest in or control over, individually, in common, or jointly, or otherwise had at the time of his death;
“(b) the decedent had possessory or dispository rights over at the time of his death or had disposed of for less than its fair market value within 3 years of his death; or
“(c) was affected by the decedent’s death for the purpose of inheritance or estate taxes.
“(2) The inventory shall include a statement of the full and true value of the decedent’s interest in every item listed in such inventory. In this connection the personal representative shall appoint one or more qualified and disinterested persons to assist him in ascertaining the fair market value as of the date of the decedent’s death of all assets included in the estate. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised.”

Our review of the record reveals that there is substantial evidence to demonstrate that several items were not listed in the inventory; that certain values were subject to question; that Mr. Lewis, the appraiser, testified he was not a certified gemologist and that he did not scientifically test the jewelry, and it would not surprise him if his values were substantially different than those of a certified gemologist. Section 72-3-607(2), MCA, requires that the I & A include the full and true value of each item. There is substantial evidence to show that removal was in the best interest of the estate.

We conclude that the District Court did not abuse its discretion in removing William Townsend as personal representative. We affirm the District Court.

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


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    A. DEAN BOHNSACK and Debra Stetler Bohnsack, husband and wife, Plaintiffs, Appellants and Respontents, v. HI-NOON PETROLEUM, INC., a Montana corporation, and Marjean Charles, Defendants, Appellants and Respondents.
    No. 90-029.
    Submitted on Briefs April 12, 1990.
    Decided May 30, 1990.
    793 P.2d 815.

      William L. Crowley, Boone, Karlberg & Haddon, Missoula, for appellants.
    Brian J. Smith, Milodragovich, Dale & Dye, Milton Datsopoulos, Datsopoulos, MacDonald & Lind, Missoula, for respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

Hi-Noon Petroleum, Inc. (Hi-Noon) appeals from an order of the District Court of the Fourth Judicial District, Missoula County. The District Court granted Hi-Noon’s motion for summary judgment, although it declined to award Hi-Noon its attorney’s fees and costs. Plaintiffs below, Dean and Debra Bohnsack (Bohnsacks) filed a notice of appeal based on the District Court’s denial of their motion for summary judgment. At the outset, we note counsel for the Bohnsacks improperly filed a notice of appeal rather than a cross-appeal. We will, however, treat Bohnsacks’ appeal as a cross-appeal. We affirm in part and reverse and remand in part.

Bohnsacks entered into a sub-lease and gasoline purchase agreement with Hi-Noon on October 1, 1986. Bohnsacks sub-leased a gasoline station located on Brooks Avenue in Missoula and agreed to purchase gasoline, diesel fuel and oil from Hi-Noon. The contract provided that “payment for gasoline and diesel shall be net 7 days from date of delivery.” The parties further agreed that Bohnsacks would not sell, assign or otherwise convey their interest absent Hi-Noon’s consent. In an assignment executed in April, 1987, Bohnsacks transferred their interest to Marjean Charles (Charles). Hi-Noon consented to the assignment, but, specifically did not release Bohnsacks from their obligation under the sublease and gasoline agreement.

Hi-Noon made deliveries of gasoline and diesel to Charles for which she failed to pay within the seven day period provided by contract. Bohnsacks allege, and Hi-Noon appears to agree, that Hi-Noon continued to deliver gasoline and diesel to Charles after she failed to pay for delivered loads within the required time period. Charles ceased operations in March of 1988, and at that time owed Hi-Noon approximately $23,729 for gasoline, diesel and oil delivered to the station. Hi-Noon demanded payment on this account from Bohnsacks and refused to consent to their second assignment of the sub-lease and gasoline agreement to Ronald Malensek (Malensek) until Bohnsacks made payment arrangements.

Malensek gave Bohnsacks a $20,000 promissory note bearing 11% interest and payable in installments of $485.26 per month as partial consideration for the assignment. Bohnsacks assigned both the note and the payments to Hi-Noon. The assignment, release and indemnity agreement executed by Hi-Noon, Bohnsacks and Malensek on March 31, 1988, provided as follows:

“In consideration of the foregoing assignment, Hi-Noon releases Bohnsack from any liability owing to Hi-Noon from Robert or Margean (sic) Charles and any other contractural (sic) liability to be performed by Bohnsack under the Asset Purchase Agreement between Bohnsack and Malensek.”

Bohnsacks filed suit against Hi-Noon and Charles on August 16, 1988. Bohnsacks asserted in their complaint that Hi-Noon waived its recourse against them for payment of Charles’ debt by failing to notify Bohnsacks of Charles’ delinquency and by continuing to make deliveries after Charles did not pay promptly. Hi-Noon moved for summary judgment claiming the assignment, release and indemnity evidenced an accord and satisfaction between it and Bohnsacks. Bohnsacks also moved for summary judgment. After hearing on the parties’ respective motions for summary judgment on March 24, 1989, the District Court entered its opinion and order on May 15, 1989, holding there was an accord and satisfaction between Hi-Noon and Bohnsacks.

Hi-Noon moved to amend the court’s order to permit it to collect attorney’s fees and for certification pursuant to Rule 54(b), M.R.Civ.P. In an order dated July 17, 1989, the District Court denied both motions. Bohnsacks then moved for summary judgment against Charles. The District Court on October 31, 1989, ordered that those proceedings be stayed pending the outcome of Charles’ bankruptcy case. Hi-Noon renewed its motion for certification and the District Court subsequently ordered certification and entered its final judgment. This appeal followed.

The facts of this case are not in dispute, therefore the District Court properly granted summary judgment, Benson v. Pyfer (Mont. 1989), [240 Mont. 175,] 783 P.2d 923, 924, 46 St.Rep. 2033, 2035. Prior to Bohnsacks’ assignment of their sub-lease to Malensek, they entered into an assignment, release and indemnity agreement whereby Bohnsacks assigned to Hi-Noon payments due them on a $20,000 promissory note in satisfaction of the $23,729 debt owed by Charles to Hi-Noon for which Bohnsacks acted as guarantor. Bohnsacks argue they did not release their claims against Hi-Noon for wrongfully delivering gasoline to Charles despite Charles’ failure to pay for loads previously delivered.

Bohnsacks’ argument is circular: Bohnsacks agreed to assign the $20,000 promissory note to Hi-Noon as payment for amounts owed Hi-Noon for gasoline delivered to Charles. Now Bohnsacks contend they may proceed against Hi-Noon for increasing Bohnsacks’ exposure to liability under their assignment to Charles by delivering gasoline and not demanding payment. Hi-Noon’s failure to terminate delivery or notify Bohnsacks would be a defense to Hi-Noon’s claim against Bohnsacks.

Section 28-1-1401, MCA, defines an accord as:

“[A]n agreement to accept in extinction of an obligation something different from or less than that to which the person agreeing to accept is entitled.”

Furthermore, “[acceptance by the creditor of the consideration of an accord extinguishes the obligation and is called satisfaction.” Section 28-1-1402, MCA. Hi-Noon accepted $20,000 in settlement of a $23,729 debt. Clearly, Hi-Noon agreed to accept less than that to which it was entitled in extinction of Bohnsacks’ debt. Once Hi-Noon accepted payment, the debt was extinguished by accord and satisfaction. The District Court properly found Bohnsacks’ claims barred by accord and satisfaction.

Section 28-3-704, MCA, provides as follows:

“Whenever, by virtue of the provisions of any contract or obligation in the nature of a contract... one party to such contract or obligation has an express right to recover attorney fees from any other party to the contract or obligation in the event the party having that right shall bring an action upon the contract or obligation, then in any action on such contract or obligation all parties to the contract or obligation shall be deemed to have the same right to recover attorney fees and the prevailing party in any such action, whether by virtue of the express contractual right or by virtue of this section, shall be entitled to recover his reasonable attorney fees from the losing party or parties.”

The Assignment, Release and Indemnity Agreement executed by the Bohnsacks and Hi-Noon contains the substance of the parties’ accord and satisfaction and specifically provides for an award of attorney’s fees to the prevailing party in the event of litigation. In light of that contractual agreement, the District Court erred in denying Hi-Noon recovery of its attorney’s fees. We reverse and remand for an award of reasonable attorney’s fees to Hi-Noon.

Affirmed in part, reversed in part.

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


author: JUSTICE HUNT

text:
    SCHUTZ FOSS ARCHITECTS, Plaintiff and Respondent, v. NICK CAMPBELL, M.D., Defendant and Appellant.
    No. 89-566.
    Submitted on Briefs Feb. 9, 1990.
    Decided May 31, 1990.
    793 P.2d 821.

      Patrick E. Melby, Luxan & Murfitt, Helena, for defendant and appellant.
    Paul D. Miller, David R. Chisholm, Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant and appellant, Dr. Nick Campbell, appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, which denied his motion for change of venue. We affirm.

The sole issue presented on appeal is whether the District Court abused its discretion in denying Campbell’s motion for change of venue from Yellowstone County to Broadwater County.

In September, 1985, Campbell, a resident of Broadwater County, entered into a contract with Foss Associates, Ltd., an architectural firm located in Billings, Yellowstone County. The contract provided that Foss Associates would render architectural services in connection with the construction of a medical clinic in Townsend, Broadwater County.

On June 23, 1989, Schütz Foss Architects filed a complaint against Campbell in the Yellowstone County District Court, seeking payment for services rendered on the contract. (Apparently, at some point between signing the contract and filing the complaint, Foss Associates changed its name to Schütz Foss Architects.) Campbell moved the court for change of venue from Yellowstone County to Broadwater County. After briefing, the District Court denied the motion, finding that the agreement between the parties involved a contract for services that were to be performed in Yellowstone County. From this order, Campbell appeals.

The statute governing venue for actions based upon contracts provides as follows:

“(1) The proper place of trial for actions upon contracts is either:
“(a) the county in which the defendants, or any of them, reside at the commencement of the action; or
“(b) the county in which the contract was to be performed. The county in which the contract was to be performed is:
“(i) the county named in the contract as the place of performance; or
“(ii) if no county is named in the contract as the place of performance, the county in which, by necessary implication from the terms of the contract, considering all of the obligations of all parties at the time of its execution, the principal activity was to take place.
“(2) Subsections (2) (a) through (2)(d) do not constitute a complete list of classes of contracts; if, however, a contract belongs to one of the following classes, the proper county for such a contract for the purposes of subsection (l)(b)(ii) is:
“(a) contracts for the sale of property or goods: the county where possession of the property or goods is to be delivered;
“(b) contracts of employment or for the performance of services: the county where the labor or services are to be performed;
“(c) contracts of indemnity or insurance: the county where the loss or injury occurred or where a judgment is obtained against the assured or indemnitee or where payment is to be made by the insurer;
“(d) contracts for construction or repair: the county where the object to be constructed or repaired is situated or is to be built. ” (Emphasis added.)

Section 25-2-121, MCA.

The contract venue statute allows the plaintiff to elect alternate places for trial. Montana Sup. Ct. Comm’n on the Rules of Evidence, Recommendations for Revisions in Venue Statutes, Report to the Senate Judiciary Comm., 49th Leg. (Jan. 22, 1985). Venue may properly be obtained in either the county where the defendant resides at the time of the commencement of the action or the county in which the contract was to be performed. Section 25-2-121(1), MCA. As Campbell, the defendant in this case, resided in Broadwater County at the time of the commencement of the action, venue is proper in Yellowstone County only if that is the county where the contract was to be performed.

The statute enumerates guidelines to aid the courts in determining where the contract was to be performed. If the contract specifically names a county as the place of performance, venue is proper in that county. Section 25-2-121(l)(b)(i), MCA. If the contract fails to name a county where the agreement is to be performed, the court must determine the principal place of performance by considering the terms of the contract and the obligations of all of the parties at the time of the agreement’s execution. Section 25-2-121(1)(b)(ii), MCA.

The contract in the present case neglects to identify a place of performance. Therefore, we must ascertain the county in which the contract was to be performed.

Subsection (2) of the venue statute assists in resolving the question regarding where the contract was to be performed by listing certain classes of contracts and designating the proper county of trial should the contract fall within one of those classes. Campbell contends that the agreement in question constituted a construction contract, the overall purpose of which was the construction of a medical clinic in Broadwater County. Therefore, Campbell argues, venue is governed by sec. 25-2-121(2)(d), MCA, which provides that the proper place of trial for construction contracts is the county where the object to be constructed is to be built, in this case, Broadwater County.

Schütz Foss, on the other hand, maintains that the agreement constituted a contract for architectural services, and is therefore controlled by sec. 25-2-121 (2)(b), MCA, which provides that the proper place of trial for an action based upon a contract for services is the county where the services are to be performed. The District Court agreed with Schütz Foss and found that the agreement was a contract for architectural services governed by sec. 25-2-121(2)(b), MCA. After reviewing the contract, we are compelled to agree with the District Court.

The contract was to be performed in five phases. In the first phase, Schütz Foss was to prepare Schematic Design Documents, which consisted of drawings and other documents illustrating the scale of relationship of the project’s components. In the second phase, Schütz Foss was to prepare Design Development Documents, which consisted of drawings and other documents describing the size and character of the entire project with regard to architectural, structural, mechanical and electrical systems and materials. In the third phase, Schütz Foss was to prepare Construction Documents, which consisted of drawings and specifications detailing the requirements for the construction of the project. In the fourth phase, Schütz Foss was to assist Campbell in obtaining bids and awarding the construction contract. Finally, in the fifth phase, Schütz Foss was to administer the construction contract, which included visiting the site to ascertain the progress of the work and approving charges billed to Campbell by the contractor. The contract specifically provided that Schütz Foss “shall not have control or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures ...” during the building stage.

An examination of the agreement establishes that, although the ultimate outcome of the contract was to be the construction of a medical clinic in Broadwater County, Schütz Foss was not hired to actually construct the building. Rather, Schütz Foss was hired to render professional architectural services in connection with the building of the clinic. Therefore, the District Court did not err in concluding that the agreement was a service contract governed by sec. 25-2-121(2)(b), MCA.

Once it decided that the contract in question was a service contract, the District Court went on to find that the services were to be performed in Yellowstone County. Campbell argues that this finding was erroneous.

The District Court partially relied upon Whalen v. Snell, 205 Mont. 299, 667 P.2d 436 (1983), for its determination that the contract was to be performed in Yellowstone County. In Whalen, we noted in dicta that the place of performance of a contract for attorney services was the place where the client’s payment was to be made. At the time Whalen was written, however, the venue statutes did not possess a particular provision concerning place of trial for service contracts. In 1985, the legislature completely revised the venue statutes, adding specific venue rules for particular classes of contracts. See sec. 25-2-121(2), MCA. In adding the specific provision governing employment and service contracts found at sec. 25-2-121(2)(b), MCA, the Commission on the Rules of Evidence stated:

“Subsection (2)(b) adopts the rule declared in Hardenburgh [Hardenburgh v. Hardenburgh, 115 Mont. 469, 146 P.2d 151 (1944)] for employment contracts. The Hardenburgh decision specifically overruled the portion of State ex rel. Coburn v. District Court, 41 Mont. 84, 108 P. 145 (1910) which had held that the venue of any contract calling for payment of money was at the residence of the creditor, but adopted the holding of Cobum that the place of performance of a labor contract was the place where the labor or services were to be performed. No subsequent cases have dealt with the question, so the basic rule of Cobum and Hardenburgh is clearly in force and is expressed in this subsection.” (Emphasis added).

Although the Commission failed to mention Whalen in its comments regarding service contracts, this omission is not surprising considering the fact that Whalen really concerned venue for tort, not contract, actions and any comments in that case concerning venue for contract suits were merely dicta. Accord Hurly v. Studer, 234 Mont. 100, 761 P.2d 821 (1988). What is clear from the Commissioners’ report is that subsection (2)(b) adopted the rule that the proper place of trial for employment and service contracts is the place where the labor or services are to be performed regardless of die place of payment for the services.

Even though Whalen does not control the decision of this case, the District Court did not abuse its discretion in determining that venue was proper in Yellowstone County. The terms of the contract in the present case indicate that Campbell procured Schütz Foss’s architectural services for the principal purpose of designing a medical clinic. By their very nature, Schütz Foss’s professional design services were to be performed in its office, the place where drawing tables and other specialized architectural equipment were located. Although a portion of the contract required Schütz Foss to periodically visit the constmction site in Townsend and the affidavit of Campbell indicated that Schütz Foss had met with him on occasion in Broadwater County, it is clear that the primary activity to be performed by Schütz Foss was the design of the structure, an activity that, by necessary implication, principally occurred in Schütz Foss’s offices.

The contract between the parties was a contract for architectural services. The services were to be performed principally in the offices of Schütz Foss, which were located in Yellowstone County. The District Court did not abuse its discretion in denying Campbell’s motion for change of venue from Yellowstone County to Broadwater County.

Affirmed.

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


author: JUSTICE McDONOUGH

text:
    The ESTATES OF ALFRED L. MILLIRON and Anna B. Milliron, Plaintiffs and Appellants, v. WALTER FRANCKE, M.D., and Roundup Memorial Hospital, Defendants and Respondents.
    No. 89-558.
    Submitted on Briefs April 19, 1990.
    Decided June 1, 1990.
    793 P.2d 824.

      Dane C. Schofield, Peterson, Schofield & Leckie, Billings, for plaintiffs and appellants.
    Richard F. Cebull, Anderson, Brown, Gerbase, Cebull, Fulton, Joseph P. Hennessey, Billings, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal by the estates of the decedent plaintiff and his now deceased wife arising out of a medical malpractice claim. The plaintiff estates appeal the order of the Montana Fourteenth Judicial District Court, Musselshell County, granting summary judgment to the defendant Roundup Memorial Hospital on the grounds that it cannot be held vicariously liable for the alleged negligence of an independent contractor radiologist under the facts of this case. We affirm.

Appellants raise the following issues on appeal:

(1) Did the District Court err in concluding that there were no genuine issues of material fact regarding ostensible agency as a theory for imposing vicarious liability upon the hospital for the negligence of a radiologist?

(2) Did the District Court err in concluding that the hospital cannot be held liable for alleged negligent radiology services supplied by an independent contractor under the theory of nondelegable duty?

Alfred Milliron was an out-patient at the Roundup Memorial Hospital on December 6, 1984. He was referred to the hospital and the radiologist who practiced there, Dr. Francke, by his family physician, Dr. Moshman, for evaluation of prostatitis and obstructive uropathy. The method used by the radiologist is called an l.Y.P. (intravenous pyelogram.) This is a special X-ray procedure involving the injection of a dye which has certain hazards that were allegedly explained to the patient by Dr. Francke.

After injection of this dye, Alfred Milliron suffered a reaction and eventually lost consciousness and experienced cardiopulmonary difficulties. He was successfully resuscitated but sustained serious neurological deficit. After filing of this lawsuit, Mr. Milliron died and subsequently his wife, who was added as plaintiff in an amended complaint also died. A further amendment substituted the estates of the Millirons as plaintiffs in this case.

Plaintiffs’ amended complaint alleged several different theories to support imposition of liability on the hospital. The only remaining theories of concern to this appeal are vicarious liability based on apparent or ostensible agency or the existence of a nondelegable duty.

I.

As the District Court noted, summary judgment is never to be used as a substitute for trial if a genuine issue of material fact exists. Rule 56, M.R.Civ.P., Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898. On the other hand,“[w]hen the record discloses no genuine issue of material fact, the party opposing summary judgment has the burden of presenting evidence of a material and substantial nature raising a genuine issue of material fact. ’ ’ Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 189, 545 P.2d 670, 672.

The plaintiffs rely heavily on Kober & Kryss v. Billings Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476, in maintaining that material fact issues exist concerning an agency relationship between the radiologist and the hospital. In Kober, we held that summary judgment was inappropriate because

‘ ‘ [w]hether Dr. Stewart was an independent contractor or an agent of the hospital as to Mr. Kryss will, in all likelihood, be determined by the trier of fact as the issue is developed.”

417 P.2d at 480. However, Kober can be distinguished from the present case. Kober involved interpretation of a contract between the hospital and a radiology clinic that failed to specify if the head radiologist provided by the clinic was an independent contractor or agent of the hospital:

“... this Court cannot determine from the contract whether Dr. Stewart is an independent contractor or an agent of the hospital. Nowhere in the contract is the director specifically labeled an independent contractor.”

417 P.2d at 479. Thus, in Kober there was at least a genuine issue of material fact regarding the existence of an actual agency relationship between the parties. Here, the radiologist is specifically labeled an independent contractor in the radiology agreement between him and the hospital. Thus the plaintiffs are arguing the existence of an “apparent” or “ostensible” agency rather than an actual agency relationship. Furthermore, in Kober the plaintiff was admitted to the hospital for other reasons and subsequently was sent to the hospital’s radiology department for X-rays as an in-patient. Here, the decedent was an out-patient who was sent to the hospital by his own doctor in order to have X-rays done under the supervision of the consulting radiologist.

Nevertheless, examining the facts of this case in light of Kober, summary judgment would be improper if there exists any genuine issue of material fact regarding the existence of an “apparent” or “ostensible” agency between the hospital and the radiologist. See Burkland v. Electronic Realty Associates, Inc., (1987), 228 Mont. 113, 117, 740 P.2d 1142, 1145. We conclude that the plaintiffs have failed to demonstrate any material factual disputes regarding the existence of such an agency relationship in this case.

First, we note that plaintiffs urge us to adopt the rule of liability under an ostensible agency set forth in sec. 429 of the Restatement 2d of Torts. We find it unnecessary to adopt such a rule in this case, as liability based on ostensible agency is already specifically covered by statute, sec. 28-10-103, MCA, which provides:

“Section 28-10-103. Actual versus ostensible agency. An agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him.” (Emphasis added.)

Section 28-10-103, MCA. The plaintiffs allege the following facts as a basis for a finding of ostensible agency: the hospital agreed to provide adequate space, equipment, and personnel for the radiology department; it sent and collected bills on behalf of the radiologist; and provided the radiologist with an office at the hospital. The radiologist had no separate office in Roundup, rather he privately consulted in several hospitals and would travel around to those hospitals, including Roundup Memorial, performing work as a consulting radiologist. These allegations do not demonstrate intentional conduct on the part of the hospital that caused the Millirons to believe the radiologist to be an agent of the hospital. See e.g., Burkland, [Burkland v. Electronic Realty (1987), 228 Mont. 113,] 740 P.2d 1142. Nor were there any act or acts amounting to want of ordinary care by the hospital that led the Millirons to believe the radiologist to have been an agent of the hospital. See e.g., Elkins v. Husky Oil (1969), 153 Mont. 159, 455 P.2d 329.

To the contrary, the situation here — where a small hospital in a rural community obtains an independent contractor as a specialist, the specialist rotates between several small hospitals and the hospitals provide the doctor with an office at the hospital — is an ordinary practice in smaller communities throughout Montana. Providing these traveling physicians with offices at the hospital simply helps ensure that these smaller and more remote communities will be provided with adequate medical care and is not a sufficient factual basis to establish an agency relationship. Moreover, providing adequate space, equipment, and personnel is nothing more than what a hospital provides other doctors for the treatment of their patients.

“Where the undisputed evidence concerning the status of the parties defendant to each other is reasonably susceptible of but a single inference, the question of their legal relationship ... is one purely of law.” Elkins, 455 P.2d at 332. The plaintiffs failed to present sufficient evidence that would give rise to a genuine issue of material fact regarding ostensible agency, thus the District Court’s grant of summary judgment to the defendant hospital on this issue was proper.

II.

The plaintiffs also contend that they are entitled to partial summary judgment on the issue of the hospitals vicarious liability under the theory that the hospital had a nondelegable duty to provide safe radiology services to the public.

The plaintiffs’ contention makes an erroneous assumption that under these facts the hospital had the primary duty in the first instance in providing treatment to a doctor’s patient. This cannot be assumed. Generally, a hospital is not liable for the negligence of physicians functioning as independent contractors. See Annotation, Liability of Hospital or Sanitarium for Negligence of Physician or Surgeon, 51 A.L.R.4th 235, sec. 5 This general rule “reflects] the belief that a physician’s knowledge and services are so specialized and personal that he cannot be controlled by a layman in the practice of his calling ....” See 40 Am.Jur. 2d, Hospitals and Asylums, sec. 28, p.872. Thus, under these facts, the doctor rather than the hospital, has the primary duty to provide for treatment of his patient.

The theory of nondelegable duty is an established exception to the general rule that an employer is not liable for the negligence of independent contractors. See Stepanek v. Kober Construction Co. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53; see also, generally W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts, sec. 71 at 511-512 (5th ed. 1984).

In alleging that such an exception exists in this case, plaintiffs rely solely on Jackson v. Power (Alaska 1987), 743 P.2d 1376, where the Alaska Supreme Court held that a hospital licensed as a general acute care facility had a duty to provide physicians for emergency room care that was nondelegable. Jackson appears to stand alone as the only case applying the nondelegable duty exception to employer nonliability to a hospital for a doctor’s negligence. Furthermore, Jackson was limited to emergency room services and did not extend to the situation where a patient was treated by his or her own doctor in an emergency room provided by the hospital for the convenience of doctors. Rather, the decision only applies to situations where a patient comes to the hospital, as an institution, seeking emergency room services and is treated by a physician provided by the hospital. Jackson, 743 P.2d at 1385. The present case is distinguishable from Jackson. This case does not involve emergency radiology services at an acute care facility, and furthermore, here the patient knew who the treating radiologist would be prior to the procedure.

The order of the District Court granting summary judgment to Roundup Memorial hospital is AFFIRMED.

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


text:
    HEDDEN-EMPIRE LIMITED PARTNERSHIP, Plaintiff and Appellant, v. DEPARTMENT OF REVENUE, STATE OF MONTANA, Yellowstone County, and County Treasurer of Yellowstone county, Defendants and Respondents.
    No. 90-028.
    Submitted on Briefs April 26, 1990.
    Decided June 5, 1990.
    793 P.2d 828.

      Charles E. Snyder, Billings, for plaintiff and appellant.
    Larry G. Schuster, Dept, of Revenue, Helena, Anne Sheehy, Deputy County Atty., Billings, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the District Court, Thirteenth Judicial District, Yellowstone County, Montana, dismissing plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff appeals. We affirm.

The sole issue presented for review is whether the District Court erred in dismissing plaintiff’s complaint for lack of subject matter jurisdiction.

Plaintiff Hedden-Empire Limited Partnership is the owner of commercial property and commercial property improvements in Yellowstone County, Montana. On January 1, 1978, the State Department of Revenue (Department) assigned new appraised values to all real property and real property improvements in Montana for ad valorem taxes. In making these appraisals, the Department relied upon the 1976 Marshall Valuation Service. For appraisal of residential improvements, the Department relied upon the 1972 Montana Manual. The use of these two manuals produced the “manual disparity” controversy. See Department of Revenue v. State Tax Appeal Board (1980), 188 Mont. 244, 613 P.2d 691. Ultimately the Department equalized the values of commercial real property improvements by reducing by 12% the appraised values from the 1976 Marshall Valuation Service. See, Hanley v. Department of Revenue (1983), 207 Mont. 302, 673 P.2d 1257. Additionally, the Department settled outstanding manual disparity appeals by entering a settlement agreement with owners of commercial improvements.

Plaintiff was one such owner. On July 21, 1982, plaintiff entered a settlement agreement with the Department. In the agreement the Department agreed to refund 34% of 1978 taxes attributable to commercial improvements. The agreement also stated:

“For tax year 1982 and the remaining tax years of the current appraisal cycle, a 12% reduction in the 1978 appraised value.. .shall be granted to the taxpayer, said 12% reduced value is $603,930. Said reduction shall be subject to any increase due to the addition of new commercial improvements or industrial improvements to the property or to the remodeling of existing commercial improvements or industrial improvements. ’ ’

On May 25, 1989, plaintiff filed a complaint in Yellowstone County District Court, alleging that the Department and Yellowstone County had violated this settlement agreement. The complaint alleges that for the years 1982 through 1985, plaintiff’s property was taxed at an appraised value of $767,930 rather than the agreed $603,930, and that the property was taxed at an appraised value of over one million dollars for the years 1986 through 1988. Plaintiff requested that a temporary restraining order be issued to restrain the Department from collecting taxes due for the second half of 1988. The District Court issued a restraining order on May 25, 1989. The Department moved to dismiss the complaint for lack of jurisdiction and to quash the restraining order. On June 28, 1989, the District Court held a show cause hearing on this matter. After the hearing and consideration of memorandum from both parties, the District Court dismissed the complaint for lack of subject matter jurisdiction and quashed the restraining order. The court agreed with the Department that, inter alia, plaintiff had failed to exhaust administrative remedies, which include appeals before the Yellowstone County Tax Appeal Board and the State Tax Appeal Board.

In reviewing the propriety of a motion to dismiss, the allegations of the complaint must be viewed in a light most favorable to plaintiffs, accepting as true all facts well pleaded. Devoe v. Missoula County (1987), 226 Mont. 372, 374, 735 P.2d 1115, 1116.

On appeal plaintiff contends that because his complaint alleged a breach of the settlement agreement, he should be allowed to proceed directly through district court. We conclude however, that the District Court properly dismissed plaintiff’s suit.

The Department begins by asserting that plaintiff’s allegations of breach of the agreement are unfounded in that they are based on a misunderstanding of the agreement and the appraisals. The Department asserts that the appraised value of plaintiffs commercial improvements of $603,930 pursuant to the 1982 Settlement Agreement, was reflected in the assessments for years 1982 through 1985. When the appraised value of the land, which was $164,000, is added to the above figure, the assessed value of $767,000 is obtained. Thus the Department contends it did not breach its agreement. Further, the agreement was only effective until the next appraisal cycle, which began in 1986; thus the agreement did not apply to appraisals made in 1986 and thereafter.

The Department also contends that plaintiff is precluded from challenging the value of the assessments for all of the years in issue in District Court since his proper forums are county and state tax appeal boards. Since plaintiff did not pay taxes when due or under protest, and failed to exhaust administrative remedies, the District Court lacked subject matter jurisdiction and properly dismissed the complaint.

We begin by noting relevant statutes. Section 15-1-402, MCA, establishes procedures for payment of taxes under protest. Payment of taxes under protest must be done before the taxes become delinquent. Appeals may be taken before county or state tax appeal boards pursuant to §§ 15-2-301 and 302, MCA, and subject to certain time requirements. Judicial review of these decisions is available pursuant to §§ 15-2-303, MCA, but such appeal must be made within sixty days of the decision by the State Tax Appeal Board. Section 15-1-402(4), MCA.

This Court has previously held that subject to- few exceptions, administrative remedies must be exhausted prior to judicial review in a tax appeal case:

“Section 15-1-402, MCA, allows a taxpayer to pay his taxes under protest and recover the amount protested if he challenge is successful. That statute allows a taxpayer to file an action in court to recover taxes paid under protest after the taxpayer has exhausted the administrative appeals available under Title 15, chapters 2 and 15.” (Emphasis in original.)

Devoe, 735 P.2d at 1116. See also Belknap Realty Co. v. Simineo (1923), 67 Mont. 359, 365, 215 P. 659, 662; Larson v. State (1975), 166 Mont. 449, 456, 534 P.2d 854, 858.

In analyzing plaintiff’s contentions, we first address allegations in respect to the settlement agreement. The express wording of the agreement demonstrates that it only applies to improvements. As noted by the Department, and reflected in tax statements entered as exhibits at the hearing, for the years 1982 through 1985, plaintiffs commercial property improvements were assessed in accordance with the agreement. By its language the agreement was only effective until the next reappraisal cycle, which began in 1986. However, plaintiff’s remedy in challenging the assessed values for any of the years 1982 through 1988 would be timely payment under protest, followed by administrative appeals pursuant to the above-mentioned statutes.

Having failed to even allege that this was done, plaintiff’s complaint provides no basis for District Court jurisdiction. Further, appellant presents no basis which would allow him to utilize the alternate remedy of § 15-1-406, MCA, which provides that a taxpayer may, in lieu of proceeding under § 15-1-402, MCA, bring a declaratory judgment action in district court seeking a declaration that a tax was illegally or unlawfully imposed or exceeded the taxing authority. An action under this statute may only be brought if the taxes were paid when due, and must be brought within ninety days of the imposition of the tax. As previously noted, taxpayer did not pay the taxes when due and has failed to meet the ninety day filing requirement. Pursuant to § 15-2-307, MCA, an action may be initiated in district court to challenge an assessment method or procedure. This statute is not helpful to plaintiff since his complaint does not challenge the method of assessment. Although plaintiff urges application of § 15-16-601, MCA, which provides that the Board of County Commissioners may refund taxes paid more than once or erroneously or illegally collected, neither the allegations nor the facts presented to District Court provide any basis for application of this statute. We conclude plaintiff has presented no basis for bringing an action in District Court, and the District Court properly dismissed the complaint for lack of subject matter jurisdiction.

We further conclude that the District Court properly quashed the temporary restraining order. An injunction is not to be granted by any court to restrain the collection of tax. Section 15-1-405, MCA. The remedy of injunction is superseded by other statutory remedies. Section 15-1-404, MCA.

Accordingly, we affirm the action of the District Court in dismissing the complaint for lack of subject matter jurisdiction and in quashing the temporary restraining order.

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


author: JUSTICE SHEEHY

text:
    In the The MARRIAGE OF JODY JO KLOSE, Petitioner and Appellant, v. THOMAS CHARLES KLOSE, Respondent and Respondent.
    No. 89-476.
    Submitted March 29, 1990.
    Decided June 7, 1990.
    793 P.2d 1311.

      Thomas W. Trigg, Missoula, for petitioner and appellant.
    David B. Cotner, Missoula, for respondent and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Jody Jo Klose appeals from the judgment of the District Court, Fourth Judicial District, Missoula County, modifying the parties’ custody decree. We affirm the District Court.

The issues raised by appellant are:

1. Whether the District Court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act, sec. 40-4-211, MCA.

2. Whether the District Court abused its discretion in modifying the custody of Jerad Klose.

The parties were married in April, 1982, and Jerad was born on July 31, 1982. A few months thereafter, Jody left Thomas to live with another man in Nebraska. Jerad accompanied her on this move. Dissatisfied with the relationship after three months, the mother called father to retrieve her and Jerad. The couple returned to Florence, Montana, where they attempted a reconciliation.

In July, 1983, the mother filed a petition to dissolve the marriage. Despite that, she continued to live with Thomas Klose. In September 1983, without father’s knowledge, the mother caused a default decree to be entered, dissolving the parties’ marriage. The decree awarded sole custody of Jerad to the mother. The mother continued to reside with the father until March 1984, when she left with the child to return to her Nebraska friend.

From that period to the time of trial, the mother moved frequently, residing with many different individuals. The District Court’s findings of fact document the mother’s many moves:

Location Duration Roommate
Fargo, ND 12 months Tom Klose
Grand Island, NE 3 months Lee Ayers
Florence, MT 10 months Tom Klose
Grand Island, NE 1.5 months Lee Ayers
Standfield, OR 1.5 months Jim Tucker & sister (married)
Hermiston, OR 1.5months Parents
Standfield, OR 12 months Alone
Hermiston, OR 6 months Live-in housekeeper for Don Weber
Hermiston, OR 18 months Bob Harvey
Walla Walla, WA 2 months Marcus Morris & sister
Yuma, Arizona (CA, NM) 3 months Bob Harvey
Hermiston, OR 3 months Alone
Vistalia, CA 13 months Don Walton
Umatilla, OR (?)
Hermiston, OR 6 months Bob Harvey

The mother did not give the father prior notice of these moves, making his attempts to contact his son difficult.

In August 1987, the father filed a motion for modification of custody. He testified at the hearing that he was concerned for his son’s welfare, and that he felt he could provide a more stable and nurturing environment for Jerad. The father pointed to the mother’s constant relocation and Jerad’s slow development as his major concerns. A report of Jerad’s development skills was introduced at the hearing. The test was administered in October of 1986 by a child development specialist. The results were as follows:

a. Jerad scored above his age level in only one sub-test, communication skills.

b. The sub-test measuring reasoning and academic skills were one and one-half standard deviations below the mean.

c. In the personal social area, the sub-test for peer interaction and social role were the lowest.

d. In the adaptive area, toileting skills were at the mean, but those sub-tests measuring attention, eating, dressing and personal responsibility were below the average range, one and one-half to two plus standard deviations below the mean.

e. In the motor skills area, Jerad’s gross motor skills such as locomotion were classified as a border line skill. His fine muscle sub-test was scored at two plus standard deviations below the mean.

f. Jerad was below the fiftieth percentile rank in each sub-test and was in the first or second percentile (the lowest) in the personal social total, adaptive total, motor total, and fine motor total sub-test.

g. On the whole, Jerad was in the second percentile according to the BDI and had an age equivalent of thirty-nine (39) months, fourteen (14) months below his actual age at the time of testing.

The father stated that his stable home environment would benefit Jerad’s development, while the mother’s instability endangers Jerad’s mental and emotional health.

The District Court modified custody of Jerad, stating that placing him in the primary custody of his father would be in Jerad’s best interests. The court placed Jerad with his father for the 1989-1990 school year, with joint custody visitation rights to the mother during portions of summer vacation and specific holidays. The custodial placement is subject to the court’s review at the conclusion of the 1989-1990 school year. From this decision, Jody Klose appeals.

The mother’s first contention is that the District Court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act. The mother filed a motion for change of venue and a motion to dismiss, asserting that California was the proper forum due to the child’s and mother’s residency there. The court denied the motions, holding that jurisdiction was properly with the court pursuant to sec. 40-4-211, MCA. That statute reads in part:

“(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(a) this state:
“(i) is the home state of the child at the time of commencement of the proceedings; or
“(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this state; or
“(b) it is in the best interest of the child that a court of this state assume jurisdiction because:
“(i) the child and his parents or the child and at least one contestant have a significant connection with this state; and “(ii) There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
“(c) the child is physically present in this state and:
“(i) has been abandoned; or
“(ii) it is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
“(d)(i) no other state has jurisdiction under prerequisites substantially in accordance with subsections (l)(a), (l)(b), or (l)(c) of this section or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
“(ii) it is in his best interest that the court assume jurisdiction.”

In its denial of the mother’s motions, the District Court stated:

“The mother and child moved to California less than three months before the father filed this motion. They had not previously lived in California. California is not the child’s ‘home state.’ [Sections 40-4-21 l(l)(a) and 40-7-103(5), MCA.]
“Before moving to California in June, 1987, the mother and child had lived primarily in Oregon and one or both had lived in Washington and Nevada for periods of one to three months since November, 1986. The mother and child have moved frequently and lived in four or more different households in the last two years. The Court was not presented evidence of any significant connection between mother or child and the State of California. In view of the evidence of the mother’s frequent moves and lack of proof that the mother intends to remain in California, it cannot be said that the mother will remain in California. Mere physical presence of the mother and child in California, for a period of less than six months before commencement of the proceedings, is not sufficient to confer jurisdiction in California. [40-4-21 l(l)(a) and (2), MCA.]

The court, pursuant to sec. 40-4-21 l(l)(d), concluded that it would be in the best interests of the child to assert its jurisdiction to make the child custody determination. The court properly followed the guidelines of sec. 40-4-211, MCA, and determined that Montana was the appropriate forum. The court noted the child’s educational handicap and need for special care, and determined that failing to exercise jurisdiction would only delay the litigation and thereby the prompt attention the child needed, should the father’s allegations prove true.

At the time of the April 1989 hearing, mother and child no longer resided in California, but had been in Oregon for six months. The court’s decision to reject subject matter jurisdiction in favor of California was justified, given the mother’s proclivity to relocate, and the applicable law.

The mother argues that the court should have declined jurisdiction, as Montana was an inconvenient forum under the guidelines of sec. 40-7-108, MCA. Specifically, the mother contends that the court overlooked the likelihood that substantial evidence concerning the child’s “present or future care, protection, training, and personal relationships” would be more readily available in California. We disagree. Mother and child had only recently moved to California. The only permanent home environment for the child is the father’s in this case. The mother testified at final hearing that she intended to make her home in Oregon. Given the stable location of the father in Montana, it was the best arena for jurisdiction to be exercised.

The mother next contends that the District Court abused its discretion in modifying the custody arrangement, and that the order is not supported by the evidence. Findings of fact of the District Court will not be set aside unless clearly erroneous. Rule 52(a), M.R.Civ.P. There is substantial evidence in the record to support the exhaustive findings of fact and conclusions of law contained in the District Court order.

The court found that the mother’s lifestyle and living situation lacked stability. Following the dissolution, she moved some 13 times, affording the child little opportunity for a stable home environment. She has removed the child from school in the middle of the year to move to Oregon. No evidence was introduced that tended to show that the mother would provide a suitably stable home environment for the child in the future.

The District Court noted that the child has a learning disability which may be due in part to a lazy eye. The mother has sought medical treatment for the child. However, her contention that the father has not aided in the medical care lacks merit, as the mother had custody of the boy at almost all times. The father testified that he is willing and able to seek any additional treatment for the child.

Mother’s contention that granting the father custody will harm the child by disrupting his home and school environment also lacks merit. The child has moved numerous times throughout his life with his mother. He was removed from his school in California in the middle of the year to move to Oregon. At the time of trial, the child was attending a Christian school. The mother testified she planned on enrolling the boy in public school the following year. Therefore, the child’s school environment would have been altered regardless of modification of custody.

The District Court modified custody on the basis of facts that arose subsequent to the prior decree, as authorized by sec. 40-4-219, MCA. The court noted the mother’s lack of a stable lifestyle, while noting that the father now resided permanently in Missoula in a stable environment. Ample evidence was produced at the hearing that it would be in the best interest of the child to place him with the father. We conclude that the findings of the District Court are sufficient to meet the criteria of sec. 40-4-219, MCA, for modification of custody.

Affirmed.

JUSTICES BARZ, HARRISON, HUNT and WEBER concur.


author: JUSTICE HARRISON

text:
    GARY L. QUIGG, Dennis Doney, Ray Olson, Dan Grant and all others similarly situated, Plaintiffs and Appellants, v. CARROL SOUTH, Administrator of the Montana Department of Institutions, and the State of Montana, Defendants and Respondents.
    No. 89-619.
    Submitted on Briefs May 3, 1990.
    Decided June 7, 1990.
    793 P.2d 831.
    Jeffrey T. Renz, Billings, for plaintiffs and appellants.
    James Scheier, Agency Legal Services Bureau, James B. Obie, Dept, of Institutions, Helena, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a grant of summary judgment for defendants in the First Judicial District, Lewis and Clark County, Montana, on plaintiffs/appellants’ claims that defendants discriminated against them on the basis of sex. We affirm.

As the District Court noted, this action lay dormant for years, having first been filed in December, 1984, and it was not until June, 1988 that an amended complaint was filed and various motions thereafter were filed, involving certification as a class action in summary judgment. While the defendants did not file a motion for summary judgment until after the appellants had filed such a motion in March, 1989, the defendants also requested a grant of summary judgment on the amended complaint.

The appellants maintain that while inmates at the State Prison at Deer Lodge, Montana, they were employed in various capacities and paid wages therefor. Several of the appellants filed affidavits which set forth the jobs that they held and the rates of pay. The appellants contend that the female inmates were paid substantially more (the minimum wage of $3.35 per hour) than the male inmates for essentially the same jobs. The appellants here request damages because they claim that as male prisoners they were economically discriminated against in favor of female prisoners. They also ask the court to describe conditions of work for the appellants which will alleviate this sexual discrimination in the State prison system.

Under the facts alleged, were it not for the fact that the appellants were prisoners of the State of Montana, it would appear, prima facie, that the appellants were being sexually discriminated against on the basis of pay for work required while serving their sentences at the State prison. Unfortunately for the appellants, the legislature anticipated that prison inmates who are required to work might seek to enforce employment rights tantamount to the non-prisoner general population. The legislature provided that one of the penalties for being a prison inmate is that a prisoner does not have those rights while serving his sentence at the State prison. Section 53-30-151, MCA, states:

“An inmate of the Montana state prison may be required to:
“(1) keep his own living quarters clean and orderly;
“(2) perform general maintenance and repair work on prison grounds and facilities and assist in providing services essential to the administration of the prison, including but not limited to food and laundry services.”

Section 53-30-152, MCA, provides:

“An inmate working pursuant to 53-30-151 is not an employee, either public or private, and employment rights accorded other classes of workers do not apply to such inmates.”
As concerns the State prison industries and training programs, the legislature provided in secs. 53-30-132(3) and (4), MCA:
“(3) Inmates working in the prison industries training program are not employees, either public or private, and employment rights accorded other classes of workers do not apply to such inmates.
“(4) Able-bodied persons committed to the Montana state prison as adult offenders shall be required to perform work as provided for by the department of institutions.”

We note in this action the appellants seek to avoid the effect of the above-quoted statutes and “end run” the intent of the legislature by relying upon general anti-discrimination statutes such as the following: secs. 49-2-308,49-3-201,49-3-205 and 49-3-206, MCA.

As we have noted, the legislature specifically prohibited appellants from receiving the relief they seek in their amended complaint. The general statutes they cite are not applicable, and were not intended to override the specific legislative intent set forth in the above sections under Title 53.

While this case appears to be one of first impression in Montana, and is a unique fact situation, there is case law from both the federal and state courts that have considered this point. Worsley v. Lash (N.D. Ind. 1976), 421 F.Supp. 556, held that prison inmates do not under the theory of civil rights deprivation, recover minimum wages for labor since the work was authorized by statute.

In addition to Worsley, the case of Lavigne v. Sara, Inc. (La.App. 1982), 424 So.2d 273, and several other federal cases that have been brought against the same defendant Sara, Inc. (Alexander v. Sara, Inc. (5th Cir. 1983), 721 F.2d 149; Alexander v. Sara, Inc. (M.D. La. 1981), 505 F.Supp. 1080; Alexander v. Sara, Inc. (M.D. La. 1983), 559 F.Supp. 42); and Woodall v. Partilla (N.D.III. 1984), 581 F.Supp. 1066; all support the finding in Worsley. The finding in Worsley holds that prison inmates cannot, under the theory of a civil deprivation, recover minimum wages for labor since the work has been authorized by the legislature by statutes of the State of Montana in a different manner.

While this action is brought both on minimum wage and sex discrimination issues, the appellants are precluded under both sex discrimination law and the Fair Labor Standards Act from recovering in this action.

The District Court is affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. WALTER JOHN VOEGELE, JR., Defendant and Appellant.
    No. 89-632.
    Submitted on Briefs May 10, 1990.
    Decided June 7, 1990.
    793 P.2d 832.

      Byron W. Boggs, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Betty Wing, Deputy County Atty., Missoula, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Walter John Voegele, Jr., appeals the judgment of the District Court for the Fourth Judicial District, Missoula County, revoking his suspended prison sentence. We reverse.

The issue is whether the imposition of sentence on August 24, 1989, was void for lack of jurisdiction.

In August 1987, Voegele pled guilty to third offense DUI and operating a motor vehicle while his license was suspended or revoked. On September 24, 1987, he was sentenced to serve one year in jail on the first count, with credit given for one day of jail time previously served, and six months in jail on the second count. The sentences were to run consecutively. The balances of the sentences not served were suspended on conditions including parole, abstention from alcohol, completion of alcohol counseling, payment of a $750 fine, and spending sixty days in jail, to be arranged to occur primarily on weekends.

On March 24, 1989, the Missoula County Attorney’s office petitioned for revocation of Voegele’s probation and for imposition of sentence. Voegele and his attorney made no objection to the petition and on April 20, 1989, Voegele admitted to violations of his probation including failing to do community service in lieu of jail time and failing to meet with his probation officer. On August 24, 1989, the District Court sentenced Voegele to sixty days in jail with credit given for time already served. The sentence has been stayed pending this appeal.

Section 46-18-203(2), MCA, provides:

‘ ‘A petition seeking revocation of a suspended sentence ... must be filed with the sentencing court during the period of suspension ...” Expiration of the period of suspension ... after the petition is filed does not deprive the court of jurisdiction to rule on the petition.”

Voegele’s appellate counsel contends that because Voegele’s suspended sentence had expired when the petition to revoke was filed, the District Court no longer had jurisdiction over this matter. Voegele’s suspended sentence on Count I began on September 24, 1987, and expired one year less one day later, on September 22, 1988. His suspended sentence on Count II began on September 23, 1988, and expired on March 22, 1989. The revocation petition was not filed until two days later, March 24, 1989.

The State counters that absent objection below, Voegele is barred from now challenging the court’s jurisdiction. Section 46-20-701(2), MCA, states:

“...No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
“(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
“(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
“(c) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.”

While Voegele rightfully asserts that allowing the tardy revocation petition was prejudicial to his punishment, he acknowledges that none of the above subsections (a) through (c) apply. Thus, he may not raise his claim of lack of jurisdiction under sec. 46-20-701, MCA.

However, “[w]hen the substantial rights of a defendant are involved, the lack of timely objection does not preclude us from exercising our power of discretionary review to examine any error at the trial court level.” State v. Wilkins (1987), 229 Mont. 78, 80-81, 746 P.2d 588, 589. This discretionary review under the plain error doctrine provides a remedy to prevent manifest injustice and will only be used in exceptional cases. Wilkins, 746 P.2d at 589. Because the jurisdictional error here is plainly and simply one of arithmetic, we invoke the doctrine of plain error.

The State also argues that Voegele is estopped from challenging the District Court’s jurisdiction. At the hearing a month after the petition to revoke was filed, Voegele’s attorney stated that, “[Voegele] is willing to continue his probation even though this was a suspended sentence and the time has expired.” At the sentencing hearing four months later, Voegele’s counsel offered that Voegele would agree to attend A.A. meetings, the weekend monitoring program, “and, of course, confessed to jurisdiction for an additional 18 months.”

There is nothing to indicate that anyone believed at the time of these hearings that the petition to revoke Voegele’s suspended sentence had been filed outside of the period of his suspended sentence. Voegele’s trial counsel was merely offering to continue Voegele’s probation beyond its original term. Until Voegele obtained new counsel on appeal, no one was aware that the suspended sentence had expired before the petition to revoke was filed. We hold that under these facts, Voegele is not estopped from raising the jurisdictional issue. We further hold that the imposition of sentence on August 24, 1989, was void for lack of jurisdiction because the petition to revoke Voegele’s suspended sentence was filed after the suspended sentence had expired.

Reversed.

JUSTICES BARZ, HUNT, McDONOUGH and SHEEHY concur.


text:
    Iin the MATTER OF KENNETH ZACHER, Claimant and Appellant, v. AMERICAN INSURANCE COMPANY, Insurer, Petitioner and Respondent.
    No. 89-554.
    Submitted on Briefs April 5, 1990.
    Decided June 7, 1990.
    794 P.2d 335.

      Frank C. Richter, Richter & Torkelson, Billings, for claimant and appellant.
    Terry G. Spear, Billings, for insurer, petitioner and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

The Workers’ Compensation Court held that the insurer, American Insurance Company, was entitled to assert a subrogation claim against the third party recovery of the claimant, Kenneth Zacher. Zacher appeals. We reverse and remand.

Mr. Zacher was an employee of Associated Pool Builders (Associated Pool). Associated Pool carried workers’ compensation insurance through American Insurance Company (American). In May of 1984, Associated Pool was engaged in the construction of a swimming pool in Red Lodge, Montana. Mr. Zacher worked on that project. Associated Pool hired a subcontractor, Coutts Construction Company (Coutts), to excavate a trench leading to the pool. Coutts was insured by Commercial Union Insurance Company. (Commercial).

Coutts completed the trench excavation. Mr. Zacher and another Associated Pool employee then climbed into the trench in order to connect pipes running to the pool. The trench caved-in resulting in the burial of both men. As a result Mr. Zacher suffered complete paraplegia as well as other related physical problems. Mr. Zacher submitted his workers’ compensation claim to American which paid benefits to him.

Subsequently Mr. Zacher sued Coutts for his personal injuries, alleging that the trench was negligently constructed because of a failure to properly shore-up or reinforce the ditch, or to properly slope the sides. The parties settled prior to trial, with a payment of policy limits of $300,000 to Mr. Zacher by Commercial, the Coutts’ insurer. American asserted its statutory lien against the $300,000 settlement with Mr. Zacher. American, the workers’ compensation carrier, had not participated in the negotiation and settlement of the claim. The Workers’ Compensation Court granted summary judgment to American, and awarded $129,889.01 plus accrued interest to American. Mr. Zacher appeals.

The sole issue is whether American is entitled to a subrogation interest in Mr. Zacher’s settlement of his third-party tort claim with Coutts and American, its insurance carrier.

The crux of Mr. Zacher’s contention is that the law does not support subrogation in this case because he has not yet received “full legal redress”. While there has been no factual determination of the extent of his damages, Mr. Zacher estimates that his damages are in excess of $3.5 million. He therefore contends that his $300,000 settlement is not sufficient to amount to full legal redress. American contends that Mr. Zacher does not have such a right to full legal redress and urges that it is entitled to subrogation under sec. 39-71-414, MCA. We point out that the full legal redress argument is not controlling in this case.

The key statute is sec. 39-71-414, MCA (1983). It is important to note that the current 1989 statute differs substantially from the 1983 statute with regard to the subrogation rights of an insurer. Based upon the date of injury, the 1983 statute controls. Section 39-71-414, MCA (1983) provides in pertinent part:

“(1) [T]he insurer is entitled-to subrogation for all compensation and benefits paid or to be paid under the Workers’ Compensation Act.
“(5) If the amount of compensation and other benefits payable under the Workers’ Compensation Act have not been fully determined at the time the employee, ... or the insurer have settled in any manner the action as provided for in this section, the division shall determine what proportion of the settlement shall be allocated under subrogation. The division’s determination may be appealed to the workers’ compensation judge. ’ ’

The Workers’ Compensation Court, in its application of the above statute, concluded that the insurer, American, was entitled to assert its subrogation claim. The Workers’ Compensation Court concluded that the rule in Hall v. State Compensation Ins. Fund (1985), 218 Mont. 180, 708 P.2d 234. had been modified and essentially overruled by Meech v. Hillhaven West, Inc. (Mont. 1989), [238 Mont. 21,] 776 P.2d 488, 46 St.Rep. 1058. The Workers’ Compensation Court pointed out that in Hall, this Court relied on Article II, Section 16 of the Montana Constitution and the requirement of full legal redress as a basis for the decision. The Workers’ Compensation Court concluded that the effect of Meech, was to overrule the full legal redress theory. We point out that Meech involved an interpretation of sec. 39-71-414, MCA, as modified by the 1987 Legislature. This amendment contained substantial changes in the rights of the carrier to claim subrogation.

It is true that under Hall, the majority referred to Article II, Section 16 of the Montana Constitution and White v. State (1983), 203 Mont. 363, 661 P.2d 1272, and the fundamental right of full legal redress and indicated that it would be an unconstitutional application of the statute to allow subrogation rights when the claimant had not achieved full legal redress. However, that is not the primary basis for the opinion in Hall.

The primary theory of Hall was the conclusion that our decision in Skauge v. Mountain State Tel. & Tel. Co. (1977), 172 Mont. 521, 565 P.2d 628, was relevant. Hall pointed out that in Skauge, the claimants’ rented home was destroyed by an explosion. The actual value of the property was over $11,000.00, but the insurance was only slightly over $4,000.00. In addressing the issue regarding the subrogation rights of the insurer, Hall quoted the following from Skauge:

“...when the insured has sustained a loss in excess of the reimbursement by the insurer, the insured is entitled to be made whole for his entire loss and any costs of recovery, including attorney’s fees, before the insurer can assert its right of legal subrogation against the insured or the tort-feasor. ’ ’ (Emphasis supplied.) (Citation omitted.)

Hall, 708 P.2d at 236. The majority opinion then reached the following conclusion in Hall.

“Applying this principle to the facts now before us, the State Fund is not entitled to any subrogation interest in the $25,000 settlement proceeds as claimant has not been made whole.”

Hall, 708 P.2d at 236. The basic principle of Skauge as reaffirmed in Hall is that an insurer is not entitled to subrogation until a claimant has been made whole for his entire loss and any costs of recovery, including attorney fees. From the briefs, it is apparent that counsel have some significant problems in interpreting our decision in Hall. In part that arises from the holding in Hall where this Court stated:

“We hold that, in a case of reasonably clear liability, where a claimant is forced to settle for the limits of an insurance policy which, together with claimant’s workers’ compensation award, do not grant full legal redress to claimant, the insurer is not entitled to subrogation rights under sec. 39-71-414, MCA. When claimant is made whole, subrogation begins.” (Emphasis added).

Hall, 708 P.2d at 237.

Considering Hall in the light of subsequent determinations by this Court, we conclude that the primary conclusion of the holding is contained in the last sentence which held that when a claimant is made whole, subrogation begins.

We have also considered Getten v. Liberty Mut. Ins. Co. (Mont. 1989), [240 Mont. 90,] 782 P.2d 1267, 46 St.Rep. 1967. A key statement and holding of Getten is the following:

‘ ‘The instant case presents a voluntary settlement (approximately 1.5 million dollars) for less than the upper limits of the applicable insurance policy (six million dollars). We hold that appellant received full legal redress.” (Emphasis added.)

We conclude that the references to full legal redress have been confusing and we will attempt to rectify that confusion. A reference to Skauge emphasizes the basis for the Skauge rule which was applied in Hall. That theory of equitable limitation on legal subrogation was stated in Skauge as follows:

“Again we note, the doctrine of legal subrogation is applied to subserve the ends of justice and to do equity in the particular case under consideration. . . ”

This theory is not dependent upon a right of recovery of full legal redress under the Montana Constitution. It is based upon an equitable balancing of the rights of the insurer as compared to the claimant. As previously quoted, the basic conclusion is that when the amount recovered by a claimant is less than the claimant’s total loss, with a result that either the claimant or the insurer must to some extent go unpaid, then it is equitable that the loss be born by the insurer which had been paid an insurance premium for the assumption of its liability. While it is true that in a workers’ compensation case such as the present case, the premium has been paid by the employer, there is no rational distinction between an insured under a house insurance policy and a claimant in connection with workers’ compensation. The key aspect is that the insurer has been paid for the assumption of the liability for the claim, and that where the claimant has not been made whole, equity concludes that it is the insurer which should stand the loss, rather than the claimant. With the aim of eliminating confusion, we restate our holding in this subrogation case.

We hold that where a workers’ compensation claimant recovers against a third party, an insurer has no subrogation rights until a claimant has been made whole for his entire loss and any costs of recovery, including attorney fees. In determining whether a claimant has been made whole, the amounts received and to be received under the workers’ compensation claim shall be added to the amounts otherwise received or to be received from third party claims, and also added to the costs of recovery, including attorney fees; and when that total equals claimant’s entire loss, then the insurer shall be entitled to subrogation from all amounts received by the claimant in excess of his entire loss, pursuant to sec. 39-71-414, MCA (1983). To the extent that Hall and Getten contain requirements which may be interpreted as adding to the foregoing holding, Hall and Getten are expressly overruled. As a result, there will be no need for parties to consider whether or not full legal redress under the Constitution is involved and there will be no need to prove reasonably clear liability. We do emphasize that this opinion does not modify the actual decisions made in both Hall and Getten. The author points out that the foregoing in some measure contradicts his dissent in Hall. However, it is appropriate that under the rule of stare decisis, the holding in Hall on the equitable subrogation theory should be upheld.

The record before the Workers’ Compensation Court does not establish as a matter of fact the extent of the loss, costs of recovery, and attorney fees so far as Mr. Zacher is concerned. We therefore hold that the matter is remanded to the Workers’ Compensation Court in order that the court may make a factual determination as to whether Mr. Zacher has been made whole for his entire loss and any costs of recovery, including attorney fees. At that point the Workers’ Compensation Court can make its appropriate order with regard to subrogation in accordance with the principles stated in this opinion.

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


text:
    DALE CLAIRE DUNCAN, Petitioner and Appellant, v. The STATE OF MONTANA, Respondent and Respondent. DALE CLAIRE DUNCAN, Petitioner, v. JACK McCORMICK, Warden, Respondent.
    No. 90-055, 90-096.
    Decided April 3, 1990.
    Rehearing Denied June 26, 1990.
    794 P.2d 331.
    Dale Claire Duncan, in pro. per.
   ORDER

Dale Claire Duncan, appearing “in propria persona,” has simultaneously filed with this Court a petition for habeas corpus and an appeal of a petition for post-conviction relief denied by the District Court of the Eighth Judicial District, Cascade County, in October 1989. In response, the Attorney General of the State of Montana has filed a motion to dismiss both petitions as procedurally barred.

Duncan was convicted of deliberate homicide in February 1986. He was represented by appointed counsel in his trial in District Court. He attempted to file a pro se appeal, which was not allowed because it was untimely. Counsel was appointed to represent Duncan, and this Court ordered that his appeal should be allowed to go forward. An extension of time was granted for preparation of the transcript on appeal. Duncan moved that his attorney be removed, a hearing was held in the District Court, and new appellate counsel was appointed. An extension of time was granted to allow the newly-appointed counsel to confer with Duncan.

Duncan next filed a petition for writ of mandamus to require his counsel to provide him with several volumes of trial transcript. This Court pointed out that Duncan’s counsel would require the transcripts in order to prepare briefs on appeal, and denied the petition. Counsel for Duncan then asked to be relieved due to lack of cooperation from Duncan. This Court ordered Duncan to cooperate with his counsel or the attorney would be relieved. It also again extended the time for filing of the initial brief by two weeks. Counsel was subsequently relieved, and Duncan was ordered to proceed pro se, with a further three-week extension of time granted. Duncan then filed a petition to reinstate habeas corpus, stating that “it would be impossible for him to submit his pro se appeal effectively” from the prison. Two weeks after the filing deadline had expired, this Court ordered the appeal dismissed and denied the petition to reinstate habeas corpus.

In the present petition for habeas corpus, Duncan raises the issues of whether there was probable cause to support his arrest and the search of his home, whether the waiver of his preliminary examination was valid, and whether certain evidence used at his trial was unconstitutionally obtained.

The writ of habeas corpus is not available to attack the validity of the conviction of a person who has been adjudged guilty of an offense in a court of record and has exhausted his remedy of appeal. Section 46-22-101(2), MCA. Duncan raises claims which attack the validity of his conviction and has been adjudged guilty of homicide in a court of record. As demonstrated by the above recitation, he also has exhausted his remedy of appeal. We conclude that under sec. 46-22-101(2), MCA, his petition for a writ of habeas corpus is procedurally barred.

In his petition for post-conviction relief, Duncan raises five claims: the same three claims raised in his petition for a writ of habeas corpus, plus claims of failure to suppress evidence and that some testimony presented by the State at trial was known by the State to be false. All of these claims could have been raised on direct appeal. Grounds for relief which could reasonably have been raised on direct appeal, where a petitioner has been afforded one, may not be raised in a petition for post-conviction relief. Section 46-21-105, MCA. We conclude that sec. 46-21-105, MCA, provides a procedural bar for the claims Duncan raises in his petition for post-conviction relief.

Accordingly, we grant the motion of the State to dismiss both the petition for a writ of habeas corpus and the petition for post-conviction relief. IT IS SO ORDERED.

DATED this 3rd day of April, 1990.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Diane G. Barz, Justice

s/Fred J. Weber, Justice

s/R.C. McDonough, Justice


text:
    PLAINS & PRAIRIE IMPLEMENT, INC., A Montana Corporation, Plaintiff and Respondent, v. AG-MANAGEMENT & ASSOCIATES, a Partnership, et al., Defendants and Appellants.
    No. 89-522, 90-140.
    Decided May 14, 1990.
    794 P.2d 332.
   OPINION AND ORDER

Appellants have filed herein a petition for rehearing, asking this Court to reconsider our Order of April 17, 1990, which granted respondent’s motion to dismiss appellants’ appeal.

This motion comes to us following several procedural maneuvers. On August 22, 1989, the Sixteenth Judicial District Court, Custer County, entered judgment in favor of respondent. On August 31, 1989, appellant filed a motion for new trial. Under Rule 59(d), M.R.Civ.P., the District Court had 45 days in which to rule upon the motion or it would be deemed denied. On October 12, 1989, three days prior to the expiration of the 45-day period, appellants filed a notice of appeal with the District Court.

After the appeal had been briefed by both parties and submitted to this Court, respondent filed a motion to dismiss on the ground that the notice of appeal had been prematurely filed, rendering it ineffective under Rule 5(a)(4), M.R.App.P. On January 9, 1990, we granted the motion to dismiss. We denied appellants’ subsequent petition for rehearing. On February 28, 1990, remittitur was issued.

On March 13, 1990, appellants filed another notice of appeal. Respondent requested dismissal of the second appeal, which this Court granted on April 17, 1990. Appellants now ask us to reconsider that ruling.

Rule 5(a)(4), M.R.App.P., specifically provides that a notice of appeal filed before the disposition of a motion for new trial “shall have no effect.” The rule further states that “[a] new notice of appeal must be filed within the prescribed time [30 days] measured from the .. .date of the expiration of the 45-day period established in Rule 59(d), Montana Rules of Civil Procedure.”

Rule 5(a)(4), M.R.App.P., is jurisdictional. Notice of appeal must be propérly and timely filed with the district court before this Court may exercise jurisdiction over a cause. Price v. Zunchich, 188 Mont. 230, 235, 612 P.2d 1296, 1299 (1980). In order to prevent taking jurisdiction away from the district court prior to that court’s disposition of all of the matters before it, Rule 5(a)(4) provides that a prematurely filed notice of appeal has no effect. Therefore, a notice of appeal that is filed too early does not vest jurisdiction in this Court. Rather, it leaves jurisdiction in the hands of the district court.

Although Rule 5(a)(5), M.R.App.P., allows the district court to extend the time for filing notice of appeal upon a showing of excusable neglect or good cause, the appellant must file such a request within 30 days after the initial 30-day period for filing notice of appeal has expired. The rule limits the length of the extension that the district court may grant by providing, “No such extension shall exceed 30 days past such prescribed time [the original 30-day period] or 10 days from the date of entry of the order granting the motion, whichever occurs later.”

In the present case, appellants filed the original notice of appeal prior to the expiration of the 45-day period. Therefore, the original notice had no effect. It left jurisdiction in the District Court, allowing the 45-day period to run. This Court could have obtained jurisdiction over the cause only if appellants had either: 1) filed a second notice of appeal within 30 days after the expiration of the 45-day period; or 2) within 30 days after the expiration of the original 30-day period, filed a motion with the District Court for an extension of time for filing the notice of appeal. Appellants failed to take either route. Instead, they filed their second notice of appeal on March 13, 1990, well after the original 30 days and the 30-day extension period had expired.

After considering the petition of the appellants and the facts of the case herein,

IT IS ORDERED:

1. Appellants’ petition for rehearing is DENIED.

2. The Clerk of this Court shall mail copies of this Order to counsel of record for both parties.

DATED this 14th day of May, 1990.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Diane G. Barz, Justice

s/John C. Sheehy, Justice

s/William E. Hunt, Sr., Justice

s/R.C. McDonough, Justice

s/Fred J. Weber, Justice