author: JUSTICE HUNT

text:
    FRED G. CARL and JOAN A. CARL, Plaintiffs and Appellants, v. WILLIAM CHILCOTE and CITY OF MISSOULA, MONTANA, Defendants and Respondents.
    No. 92-164.
    Submitted on Briefs August 13, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1109.
    255 Mont. 526.
    844 P.2d 79.

      For Appellants: Charles F. Moses, Moses Law Firm, Billings.
    For Respondents: William P. Driscoll, Gough, Shanahan, Johnson & Waterman, Helena, (City of Missoula), and William L. Crowley, Boone, Karlberg & Haddon, Missoula (Chilcote).
   JUSTICE HUNT

delivered the opinion of the Court.

Plaintiffs and appellants, Fred G. Carl and Joan A. Carl, husband and wife, appeal from the adverse decisions of the District Court of the Fourth Judicial District, Missoula County. The District Court granted summary judgment to both defendants and respondents, William Chilcote and the City of Missoula (City). We affirm.

There are two issues before the Court:

1. Did the District Court err in granting summary judgment in favor of Chilcote?

2. Did the District Court err in granting summary judgment in favor of the City of Missoula?

This appeal is the latest in a long-running dispute which began more than a decade ago. In the late 1970’s, Carls entered into a contract for the construction of four duplexes in Missoula. The contractor was Paul Campeau. During construction, a mechanic’s lien was filed by M. E. Walters. Walters obtained summary judgment against Campeau and is no longer a party to the controversy. Carls also asserted cross-claims for relief against Campeau in this same proceeding in that there were several substantial and material defects in the duplexes which were left uncorrected by Campeau. On April 27,1981, Carls obtained judgment against Campeau for breach of contract. The District Court ordered that Campeau pay Carls the cost of correcting the defects in the four duplexes, up to the amount of $120,000. Campeau failed to pay for the necessary repairs.

Carls recorded their $120,000 judgment against Campeau in Richland County. Campeau was involved in a joint venture in Richland County with Chilcote. Campeau and Chilcote were constructing and selling residences. Chilcote was in no way involved with the duplexes constructed in Missoula and was not a party to the litigation which resulted in the District Court order of April 27,1981, requiring Campeau to pay for the repairs to the Missoula duplexes.

Carls then moved the District Court for an order to compel Campeau’s compliance with the April 27, 1981, order. On November 4,1981, the District Court entered a supplemental order directing Campeau to make the necessary repairs, subject to supervision by designated architects. In order to insure completion of the repairs, the District Court ordered Campeau to place $60,000 into a trust account. Campeau’s attorney, William Baldassin, was ordered to act as trustee of the trust account. The District Court also required Carls to release the Richland County property from the lien so that Campeau could sell his interest in the property and deposit the $60,000 in the trust account. The District Court’s order of November 4, 1981, did not name Chilcote, nor did the order require or prohibit any conduct on his part.

The Richland County property was sold. Chilcote paid $60,000 to Campeau out of the profits of the joint venture. Chilcote advised Campeau at this time that he had better get the money to Baldassin to deposit into the trust account as the District Court had ordered. Campeau told Chilcote not to worry because he would not do anything to get Chilcote into trouble. Campeau paid $2,650 to Carls, $17,000 to Baldassin, which was deposited into the trust account, and then proceeded directly to Australia.

Upon motion of Carls, the District Court, on August 2,1982, found Chilcote in contempt of court. The District Court concluded that Chilcote had “frustrated the order of this Court and prevented its execution and should be held in contempt of this Court and required to comply with the order ... dated November 4,1981.” On August 10, 1982, the District Court entered judgment against Chilcote in the amount of $40,350, together with costs of suit.

Chilcote appealed and sought a Writ of Review from this Court, consolidating his challenges to the contempt order and the money judgment. In Walters v. Campeau (1983), 205 Mont. 448, 668 P.2d 1054, this Court reversed both the contempt order and the money judgment entered against Chilcote. In Walters, we held that Chilcote was under no obligation to insure that the $60,000 was placed into the trust account. Chilcote had not been a party to any of the prior proceedings. Neither the District Court’s order of April 27, 1981, nor the supplemental order of November 4, 1981, named Chilcote. The orders neither required nor prohibited any conduct on the part of Chilcote. Chilcote was aware that Campeau had been ordered to pay $60,000 into the trust account and Chilcote even encouraged him to do so. However, Chilcote did not have any affirmative duty to insure the money was deposited. Under these circumstances, we concluded that Chilcote had not interfered with the process or proceedings of the District Court. The finding that Chilcote was in contempt of court and the money judgment entered against him were reversed.

On May 20, 1983, Carls filed suit against William Chilcote, Security Abstract Company, Richland National Bank, and the City of Missoula. Richland National Bank was granted summary judgment in 1984 and the District Court granted Security Abstract Company’s motion for summary judgment in 1986. Carls filed an interlocutory appeal of the summary judgment granted to Security Abstract Company, and in Carl v. Chilcote (1987), 226 Mont. 260, 735 P.2d 266, this Court affirmed the District Court’s decision.

The case continued against Chilcote and the City. Chilcote and the City had previously made motions for summary judgment which were denied. However, the District Court, in separate orders in January 1992, granted both Chilcote’s and the City’s motions for summary judgment. Carls appeal from the February 6, 1992, entry of final judgment.

I

Did the District Court err in granting summary judgment in favor of Chilcote?

A district court judge may grant summary judgment when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of showing that there is a complete absence of any genuine issue of material fact. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kober v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. Summary judgment is never an appropriate substitute for a trial if a factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.

Carls allege that genuine issues of material fact remain and that the District Court erred in granting summary judgment to Chilcote. Carls’ cause of action against Chilcote sought damages for interference with a contract. On appeal, Carls argue that the District Court granted summary judgment in favor of Chilcote on the basis of res judicata. Carls contend that the previous decision of this Court in Walters does not bar the present action.

However, a careful reading of the District Court’s opinion and order granting summary judgment to Chilcote reveals that the District Court did not rely upon the doctrine of res judicata. The District Court did refer to the facts as set out in Walters, but did not conclude that the Walters decision barred the present action. To the contrary, prior to ruling on Chilcote’s motion for summary judgment the District Court allowed Carls the opportunity to present any additional evidence they might have which would preclude summary judgment in favor of Chilcote. The District Court, after reviewing all the uncontested facts, found no genuine issues of material fact remaining and granted summary judgment to Chilcote. The District Court did not grant summary judgment based on the doctrine of res judicata. In granting summary judgment, the District Court stated that:

To date, this Court has not been presented with evidence which refutes the facts as stated in Walters. At the January 15, 1992 hearing counsel for [Carls] stipulated that he had no additional evidence to present to a jury than is already in the Court file. Under the stipulated set of facts, and in light of the Supreme Court’s rulings in Walters and Carl and Carl’s admissions (attached to this Opinion and Order), there are no material issues of fact still to be determined by a jury and summary judgment is proper under Rule 56, M.R.Civ.R Absent evidence that Chilcote had an affirmative duty to pay the $60,000 to the Baldassin trust account or that Chilcote intentionally prevented the funds from going into the trust account, Carls have not proven that Chilcote should be held liable for the actions of Campeau.

The uncontroverted evidence in this case, especially Carls’ answers to Chilcote’s request for admissions, clearly shows that Chilcote was entitled to summary judgment as a matter of law. Chilcote was not named in either of the District Court’s orders. The orders did not require or prohibit any conduct by Chilcote. Specifically, Chilcote was not prohibited in any way from paying over Campeau’s share of the profits of the joint venture directly to Campeau. There are no facts indicating that Chilcote in any way prevented or frustrated Campeau from depositing the money in the trust account. The uncontroverted evidence was that Chilcote encouraged Campeau to deposit the money. The District Court’s grant of summary judgment in favor of Chilcote is affirmed.

II

Did the District Court err in granting summary judgment in favor of the City of Missoula?

Prior to beginning construction, Carls applied for and obtained building permits from the City. Carls brought suit against the City contending that the City, through its building department employees, failed to use due care in supervising and inspecting the construction and in insuring that the construction was completed according to the City’s building codes. The District Court granted summary judgment in favor of the City on the grounds that the applicable statute of limitations had run.

The construction at issue in this case was performed in 1977 and 1978. As previously mentioned, Carls cross-claimed against Campeau in April 1980. The basis of this cross-claim was that Carls alleged they were entitled to damages for defects in the construction of the duplexes. On June 11,1980, Carls acknowledged in answers to interrogatories and requests for admissions that they were aware of various defects in the construction. At the January 1981 trial, Carls presented testimony from a structural engineer as to the defects. The District Court in this case determined that Carls became aware of the defects in April 1980 and certainly were aware of the facts constituting their claim by the time of trial in January 1981. We agree.

In resistance to the City’s motion for summary judgment, Carls presented several affidavits in support of their contention that they did not become aware of their claim until the fall of 1981. The fact that these particular affiants did not realize that Carls had a possible claim against the City is irrelevant. Section 27-2-102, MCA, provides in part that:

(2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.
(3) The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered ....

In this case, the facts constituting the claim had clearly been discovered by Carls. The statute of limitations began to run at that time, notwithstanding the fact that Carls may not have realized they had a possible claim against the City. Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 713 P.2d 992.

The statute of limitations began to run, at the very latest, as of the date of trial in January 1981. Carls filed suit against the City on May 20, 1983, more than two years following the trial. The District Court concluded that the appropriate statute of limitations in this case was two years pursuant to Section 27-2-207, MCA, and therefore, Carls’ action was barred. Section 27-2-207, MCA, provides that:

Within 2 years is the period prescribed for the commencement of an action for:
(1) injury to or waste or trespass on real or personal property....

Carls contend, relying upon Section 27-2-208, MCA, that the statute of limitations for commencing the action was ten years. Section 27-2-208, MCA, relates to actions for damages arising out of work on improvements to real property and states in part that:

(1) Except as provided in subsections (2) and (3), no action to recover damages (other than an action upon any contract, obligation, or liability founded upon an instrument in writing) resulting from or arising out of the design, planning, supervision, inspection, construction, or observation of construction of or land surveying done in connection with any improvement to real property shall be commenced more than 10 years after completion of such improvement.
(5) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action.

In discussing this statute, this Court recently stated that:

Taken by its four comers, Section 27-2-208, MCA, is not in itself a statute of limitation. Under subsection (5) of the statute, the ten-year period does not extend any other period prescribed by the laws of this state for bringing any action. What Section 27-2-208, MCA, provides is that any other applicable statutes of limitation still remains applicable but in no event shall any cause be commenced more than ten years after the completion of the improvement. Section 27-2-208, MCA, is not in essence a statute of limitations, but rather a statute of repose which prevents any cause of action relating to an improvement to real property from arising after a ten year period. Thus, if late discovery of the facts were applicable in this case to extend the time for commencement of the action, or, if the circumstances which extend the periods of limitations set out in Sections 27-2-401, and -409, MCA, were involved, the specific applicable limitations periods would be extended, but in no event longer than ten years after completion of the improvement.

Ass’n of Unit Owners v. Big Sky of Montana (1990), 245 Mont. 64, 80-81, 798 P.2d 1018, 1028.

Carls argue that in Reeves v. Ille Electric Co. (1976), 170 Mont. 104, 551 P.2d 647, this Court interpreted Section 27-2-208, MCA, as providing for a ten-year statute of limitations, contrary to the holding of Big Sky. The issues in Reeves involved several constitutional challenges to the statute. The Court in Reeves did not hold that the statute provided for a ten-year statute of limitations. The District Court correctly applied Section 27-2-207, MCA, in this instance in determining that Carls’ action was barred.

Finally, Carls argue that based upon the issuance of building permits, their claims against the City are also contractual in nature and that the statute of limitations for contracts found at Section 27-2-202, MCA, should apply. The City contends that the question of a contractual relationship is not properly before this Court. In 1990, the City was granted summary judgment in this case. The District Court based this grant of summary judgment on several grounds, including the determination that no contractual relationship existed. Carls appealed the District Court’s grant of summary judgment. Upon motion of Carls, the matter was not considered on appeal, but was remanded to the District Court for reasons unrelated to the issues now on appeal. The City argues that Rule 4(c), MR.App.R, requires the notice of appeal to “designate the judgment, order or part thereof appealed from” and that Carls did not appeal from the summary judgment entered in 1990. Carls’ notice of appeal only designates the summary judgment entered in January 1992 as the subject matter of their appeal. The issue of a contractual relationship was not raised in connection with the January 1992 summary judgment. Additionally, Rule 2(a), M.RApp.P., provides that:

Upon appeal from a judgment in a civil case, the court may review the verdict or decision, and any intermediate order or decision excepted or objected to within the meaning of Rule 46 of the Montana Rules of Civil Procedure, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken. [Emphasis added.]

Carls not only failed to designate the 1990 summary judgment order in their notice of appeal, but the 1990 summary judgment was an order from which an appeal was available. This Court cannot, on appeal from the judgment, review an order from which an appeal could have been taken. Great Falls Meat Co. v. Jenkins (1906), 33 Mont. 417, 84 P. 74. The question of a contractual relationship is not properly before the Court. The District Court’s grant of summary judgment to the City is affirmed.

The City also cross-appeals from a 1985 order of the District Court denying the City’s motion for summary judgment based on the public duty doctrine. Because we are affirming summary judgment in favor of the City on statute of limitations grounds, it is not necessary to address this issue raised by the City as a bar to Carls’ action.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    C B & F DEVELOPMENT CORPORATION, Plaintiff and Respondent, v. CULBERTSON STATE BANK, Defendant and Appellant.
    No. 92-239.
    Submitted on Briefs September 24, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1122.
    256 Mont. 1.
    844 P.2d 85.

      For Appellant: Ward E. Taleff, Floyd D. Corder, Alexander, Baucus & Linnell, Great Falls.
    For Respondent: Laura Christoffersen, Matthew W. Knierim, Gallagher, Archambeault & Knierim, Wolf Point.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Fifteenth Judicial District Court, Roosevelt County, awarding damages of $300,000 to C B & F Development Corporation in a contract action against Culbertson State Bank. We affirm.

We address the following issues:

1. Was the evidence sufficient as a matter of law to justify the verdict?

2. Did the District Court abuse its discretion by instructing the jury on equitable estoppel and on a third-party beneficiary theory?

C B & F Development Corporation (C B & F) was a feed business located in Culbertson, Montana. It originated as an Economic Development Corporation in the early 1960’s and from its inception maintained a twenty year relationship with Culbertson State Bank (Bank). The Bank provided C B & F with an annual line of operating credit, negotiated yearly.

C B & F obtained one loan from the Bank involving the Small Business Administration (SBA). This loan, SBA-H, made in 1983, was for a total of $418,400, seventy percent of which was guaranteed by the SBA through its Helena, Montana office. The loan term was for ten years, with C B & F paying monthly payments.

A second loan, SBA-S, was a direct loan from the SBA San Francisco office under its disaster program. C B & F applied for the loan in order to alleviate its cash flow difficulties due to the 1985 drought. The second loan for $140,000 was approved by the San Francisco SBA on June 27,1986. This loan was secured by real and personal property and by the personal guarantees of several directors of C B & F.

The Loan Authorization and Agreement between SBA and C B & F covering the second loan for $140,000 provided that prior to disbursement of any loan proceeds C B & F will provide a letter of commitment from Culbertson State Bank to the SBA which would state that the Bank would grant borrower an operating line of credit for 1986 with “approximately the same terms, conditions, and credit limit as granted to the Borrower prior to the disaster period.” The Bank wrote a letter of commitment to the SBA dated August 6,1986, which stated in part:

In reply to page 5 of the June 27, 1986 Loan Authorization and Agreement for the operating line for the balance of 1986, [t]he Culbertson State Bank, in keeping with our lending limit of $140,000, can extend up to $41,000.00 to CB&F Dev., if the balance of the present operating line of $42,551.43 principal and $3,061.65 interest to date, is paid. Also this would be subject to a subordination from SBA in Helena, under the original loan dated 2/1/83 covering all Real Estate (approx 5 acres) and all Machinery, Equipment and Inventory, releasing the inventory to secure the needed capital needs. We have enclosed copies of the last years line of $71,000., which covered $25,000.00 from the draught (sic) of 1984, to show how we are sec[ur]ed to 8/13/86.

The proceeds of this loan were used to pay off the Bank as required under the letter of commitment. The Bank accepted the payment, but subsequently refused to provide the operating line of credit for 1986.

C B & F brought suit against the Bank based on various tort and contract theories. The Bank answered and filed a third party complaint against the SBA. The case was removed to the United States District Court for the District of Montana, Billings Division. By memorandum and order filed April 10,1991, the federal court granted SBA’s combined motion for dismissal and for summary judgment; the court then remanded the case to the state district court because the Bank had failed to allege federal jurisdictional issues or name the United States as a party.

C B & F filed an amended complaint dated May 3, 1991, alleging negligent misrepresentation, breach of express contract, breach of implied contract, estoppel, and fraud and punitive damages. The case was tried before a jury on January 21, 1992. After submission by C B & F of its case-in-chief, the District Court, pursuant to motion, limited the issues to a consideration of contract theories. On January 24, 1992, the jury entered a verdict of $300,000 in favor of C B & F. The Bank moved for judgment notwithstanding the verdict or in the alternative for a new trial. The District Court denied these motions and the Bank appealed.

I.

Was the evidence sufficient as amatter of law to justify the verdict?

The Bank contends that the record does not support the jury’s verdict for C B & F because no contract existed between it and SBA or between it and C B & F.

Our function on appeal from a jury verdict is to review the evidence in the light most favorable to the prevailing party and to determine whether substantial evidence supports the verdict. Hash v. State (1991), 247 Mont. 497, 807 P.2d 1363. After a careful review of the record, we conclude that substantial evidence was presented supporting the jury verdict.

The Bank contends that evidence of the requisite element of contractual consent (offer and acceptance) is not contained in the record. According to the Bank, no written contract between C B & F and the Bank existed. The Bank’s position is that no meeting of the minds on essential terms occurred, thus there could be no valid offer or unconditional acceptance of that offer. C B & F contends that the Bank erroneously limits its consideration to the August 6,1986 letter of commitment to the SBA as though that were the only evidence to support a contractual relationship. C B & F refers to various other matters presented to establish the contract.

This case involves two contracts made between three parties. “A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.” Section 28-2-103, MCA. The first contract, between SBA and C B & F, is an express contract. A condition precedent to that express contract, is the submission to SBA by the Bank of a letter of intent to loan C B & F an operating line of credit.

The second contract is that between C B & F and the Bank. While no written contract existed here, plaintiff contends a contract did exist. As stated in Section 28-2-103, MCA, an implied contract is one the existence and terms of which are manifested by conduct. See Billings Clinic v. Peat Marwick Main and Co. (1990), 244 Mont. 324, 797 P.2d 899. Here, we look to the Bank’s and C B & F’s conduct to see if it is sufficient to establish an implied contract.

The record shows that C B & F specifically requested an operating loan commitment letter from the Bank as a prerequisite to obtaining the disaster loan from SBA. The record shows that the Bank assured C B & F it would send this letter. After a twenty year business relationship in which the Bank had loaned it operating money every year, C B & F had reason to, and did, accept the assurance of the Bank’s official.

The record further shows that a Bank officer spoke personally with an SBA officer on several occasions concerning its intent to loan money to C B & F. The record establishes that the Bank understood that SBA needed a firm commitment and that the letter it sent to SBA had been interpreted as such a commitment. SBA notes indicate its understanding that the Bank would loan C B & F the money pursuant to its pre-1986 terms and conditions.

C B & F also understood that the Bank would make an operating loan for 1986. As part of the conditions for such an operating loan, the Bank required C B & F to repay its outstanding operating debt. The Bank argues that C B & F never received a copy of the August 6 letter of commitment so it could not have agreed to any contractual terms. The record shows that C B & F had been informed by SBA of the contents of the Bank letter. Subsequently, the Bank accepted payment of the C B & F debt, knowing that the money came from SBA, and fulfilled its own condition for the operating loan.

The Bank’s acceptance of the payment of C B & F’s operating debt with SBA funds is evidence that the Bank agreed to loan C B & F money. C B & F’s conduct in repaying the loan indicates that it understood that in order to receive the new operating line of credit, it would have to repay its existing operating debt. Yet, the Bank argues that there can be no contract between it and C B & F because essential terms such as the amount of the loan and the rate of interest were not established.

The letter of commitment from the Bank to SBA establishes a $41,000 credit limit. Testimony at trial established that over a twenty year business history, the interest rates on the yearly operating line of credit fluctuated with the amount borrowed and general interest rate.

In SBA’s Loan Authorization and Agreement to C B & F covering the 1986 loan to C B & F, SBA states that the Bank must provide a letter of commitment to SBA indicating an extension of an operating line of credit to C B & F on “approximately the same terms, conditions, and credit limit as granted” prior to the 1986 loan. The Bank and C B & F understood that the Bank’s August 6 commitment letter was written with these implied terms. As a result, the Bank was required to make the loan on terms and conditions similar to those of preceding years.

The Bank contends that its second condition to extending the line of credit was not completed because SBA did not subordinate its loan. Testimony by the SBA at trial established that the Bank failed to request the subordination so none was issued.

The elements required to establish an implied contract are: identifiable parties, consent, a lawful object and consideration. Daniels v. Thomas, Dean & Hoskins, Inc. (1990), 246 Mont. 125, 804 P.2d 359. The parties to the implied contract were the Bank and C B & F. We have discussed, and the record evinces, consent by both parties to the operating loan. As far as consideration is concerned, C B & F received its disaster loan and paid the delinquent current operating loan to the Bank; and the Bank accepted the delinquent amount from the SBA funds. We conclude that the implied contract between the Bank and C B & F was established by substantial evidence.

C B & F argues that the evidence supports the contractual theory of promissory estoppel. Because we conclude that an implied contract existed between the Bank and C B & F, we do not find it necessary to discuss promissory estoppel in detail. We do point out that substantial evidence exists from which the jury could also have concluded that promissory estoppel prevents the Bank from denying a contractual relationship between it and C B & F.

We therefore hold that the evidence presented was sufficient to justify the jury verdict.

II.

Did the District Court err by instructing the jury on equitable estoppel and on a third party beneficiary theory?

Both plaintiff and defendant provided the court with an estoppel instruction which the court gave to the jury. The Bank offered a promissory estoppel instruction. C B & F’s instruction merely designated its instruction as one for “estoppel;” the Bank contends the instruction was really an equitable estoppel instruction. As such, the Bank argues the instruction was inappropriate because equitable estoppel is a defense theory. The Bank further argues that the giving of both instructions was confusing for the jury. C B & F argues that its instruction was not designated as an equitable estoppel instruction and that nothing in the simultaneous giving of the two instructions was confusing.

C B & F’s instruction with six elements specifically mentions “silence” as a possible conduct which could indicate the party is estopped from denying a contract. The Bank objects to use of the “silence” element; yet the facts of this case strongly suggest that silence could have played a part in analyzing the Bank’s conduct.

This Court has recognized equitable estoppel, promissory estoppel, and estoppel by silence. Northwest Potato Sales, Inc. v. Beck (1984), 208 Mont. 310, 678 P.2d 1138. But, in so doing we have also determined that the lines separating all three kinds of estoppel are blurry at best:

Although we base our decision on estoppel by silence, we cannot deny that the facts may fit elements of estoppel also appropriate to equitable estoppel. This is so, because as is so often the case in any branch of the law, each form of estoppel does not fall into a neatly packaged and exclusive category. Rather, the forms of estoppel also blend with each other.

Northwest Potato, 208 Mont, at 317, 678 P.2d at 1141.

We have reviewed and compared both instructions and have concluded that under the facts of this case, the jury could properly have found for the plaintiff under both instructions. As a result, we hold that the giving of both instructions does not constitute reversible error.

The Bank also objects to the District Court’s instruction on the theory of third party beneficiary. The basis for the Bank’s objection is that the federal district court found no contract to exist between SBA and the Bank. The Bank argues res judicata on the issue of any contractual relationship between it and the SBA.

First, we find res judicata inapplicable. Res judicata requires the same parties, the same subject matter, the same issues, and the same capacities of the parties. Filler v. Richland County (1991), 247 Mont. 285, 806 P.2d 537. The parties on appeal are C B & F and the Bank. The action in federal court was an action by the Bank against the SBA. The parties are not the same.

Further, the issues involved are different. The Bank argued to the federal court that SBA had breached an agreement with it to subordinate and that this breach caused the Bank damage. In the underlying action now on appeal, C B & F argues that the Bank breached its agreement with C B & F, causing C B & F damage. We conclude that the determination by the federal district court did not constitute res judicata as to the issues in this case.

We note that the transcript does contain the Bank’s objection to the third party beneficiary instruction as presented by C B & F. The record also shows that following a discussion on the appropriateness of the theory to the case, the Court granted the Bank’s request for permission to write a limiting instruction to be given with the original. The Bank never furnished the instruction at the agreed upon time so the court gave the original instruction by itself. We conclude that the Bank’s failure to provide the instruction, which the court stated that it would give to the jury, prevents the Bank from now arguing that the instruction on this issue was deficient.

We hold the District Court did not err by instructing the jury on an equitable estoppel theory and on a third party beneficiary theory.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff, vs. TRUEMAN LEROY CONRAD, Defendant.
    NO. DC-88-08
    DECISION
    DATED this 23rd day of April, 1992.
   On December 19, 1990, the Defendant was sentenced to ten (10) years for Felony Assault with nine (9) years suspended.

On November 7, 1991, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kevin Braun, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the case shall be remanded back to Judge McPhillips to make a determination whether or not the defendant shall receive credit for street time served and for time served under the initial sentence. The remaining portion of the sentence shall remain the same as originally imposed.

On January 8, 1992, Judge McPhillips rendered a decision that Mr. Conrad shall receive credit for all time served following entry of Judgment herein on the 30th day of June, 1988. The Court further notes that said Judgment was amended previously to give the Defendant credit for time served in the Glacier County Jail of 69 days prior to and following conviction herein and, as provided for, received credit therefor.

On April 23, 1992, the Sentence Review Board reviewed the January 8, 1992 Amended Judgment and it was the unanimous decision of the Board that the Amended Judgment shall be affirmed.

The reason for the decision is because the Sentence Review Board agreed with the street time that was imposed and the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. RODNEY ALLEN WEST, Defendant.
    NO. 8480
    DECISION
    DATED this 23rd day of April, 1992.
    Hon. Ed McLean, Chairman, abstained from participation in this matter. He was the prosecuting attorney.
   On February 13, 1989, the Defendant was sentenced to Count I, ten (10) years for Felony Theft; Count II, six (6) months in the Missoula County Jail; said sentence shall be served concurrently with each other. The defendant is sentenced to an additional thirty (30) years for being an Habitual Offender. The sentence shall run consecutive with the sentences imposed in Count I. It is recommended restitution be paid as a condition of parole plus other conditions as stated in the February 13,1989, Judgment. Credit is given for 194 days time served. The defendant is listed as a dangerous offender for purposes for parole eligibility.

On November 8,1991, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Ed Hayes, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there was a split decision of the Sentence Review Division. The matter was remanded back to the Honorable Douglas Harkin to state specifically the reasons that the dangerous designation was based upon, there being no statement of reasons set forth in the Judgment. That is not to say the record may not support the dangerous designation, but that the reasons must be clearly stated pursuant to the latest Montana Supreme Court Decision on the subject.

OnFebruary25,1992, anAmended Judgmentwas issued by the Honorable Douglas G. Harkin. Therein Judge Harkin states that the transcript of the sentencing hearing of February 13,1989 contains the basis for the dangerous designation. The Court stated at that time:

“You are designated a dangerous offender because of your extensive criminal record.”

On April 23, 1992, the Sentence Review Board reviewed the February 25, 1992 Amended Judgment and it was the decisions of the Board that the Amended Judgment shall be unanimously affirmed.

The reason for the decision is because of the extensive criminal record of the defendant.

Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. TIMOTHY GEORGE ROOT, Defendant.
    NO. CDC-91-013
    DECISION
    DATED this 24th day of April, 1992.
   On October 7, 1991, the Defendant was sentenced to ten (10) years for Criminal Endangerment.

On April 24,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Cynthia Jones, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Cynthia Jones, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM JOHN BROWN, Defendant.
    NO. DC-90-008B
    DECISION
   On November 21, 1991, the Defendant was sentenced to twenty (20) years with eleven (11) years suspended for a revocation of Burglary, plus conditions.

On April 24,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Penni Probert, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 24th day of April, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Penni Probert, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. LENNY JOE RICH, Defendant.
    NO. 7137
    DECISION
    DATED this 24th day of April, 1992.
   On December 31, 1991, the Defendant was sentenced to five (5) years for Forgery. Credit was given for 27 days time previously served.

On April 24,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes thank Mr. Rich for his assistance to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. MARVIN WALTER JACOBSON, Defendant.
    NO. DC-89-087B
    DC-91-110B
    DECISION
    DATED this 24th day of April, 1992.
   On August 27,1991, the Defendant was sentenced to DC-89-087B, twelve (12) years for Sexual Assault; DC-91-110B, four (4) years for Bail Jumping. These terms are to he served consecutively. The defendant is ineligible for parole until he successfully completes sex offender treatment and chemical dependency treatment available at Montana State Prison. Dangerous Designation.

On April 24,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dan Safransky, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall he affirmed, however, the dangerous designation shall be dropped and the defendant shall he designated as non-dangerous for parole and probation eligibility. All other conditions are affirmed including the provision that the defendant shall successfully complete the sex offender program and the chemical dependency treatment at Montana State Prison.

The reason for the decision is the defendant has no history of violence and no prior criminal record when he committed the offense of sexual assault in 1989.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Dan Safransky, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RONALD M. MAIER, Defendant.
    NO. 9711
    DECISION
   On September 12,1991, the Defendant was sentenced to Count I, ten (10) years for Assault; Count II, 60 days in the Missoula County Jail for DUI; the sentences shall be served concurrently with each other; Dangerous Designation.

On April 24,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 24th day of April, 1992.

The Defendant was present and was represented by Eric Rasmusson, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes thank Eric Rasmusson, Legal Intern from the Montana Defender project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. STEVEN DALE LUBICK, Defendant.
    NO. 1282
    DECISION
    DATED this 24th day of April, 1992.
   On October 11, 1991, the Defendant was sentenced to ten (10) years for Criminal Mischief, Unauthorized use of a Motor Vehicle; and the defendant shall be Ineligible for Parole.

On April 24,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Cynthia Brooks, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed by Judge Davis shall be amended by striking the ineligible provision. However, the rest of the sentence shall remain the same as originally imposed.

The reasons for the decision are (1) no person was physically harmed or threatened; and (2) the amendment will bring the sentence more in line with other sentences imposed for a similar offense.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Cynthia Brooks, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JOHN LELAND SNIDER, Defendant.
    NO. CDC-90-124
    DECISION
    DATED this 23rd day of April, 1992.
   On September 18,1990, the Defendant was sentenced to Count I, ten (10) years for Criminal Endangerment; Count II, five (5) years all of which shall be suspended, for Domestic Abuse. The two sentences shall be served consecutively and credit is given for 145 days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kathleen Hufstetler, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Kathleen Hufstetler, Legal Intern from the Montana Defender for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. EDWARD JAMES LEWIS, Defendant.
    NO. 5993
    DECISION
   On February 26,1992 the Defendant was sentenced to ten (10) years for revocation of Intimidation. An additional five (5) year term was given for Persistent Felony Offender which shall be served consecutively with the ten (10) years for Intimidation. The defendant shall be given credit for 121 days time served.

DATED this 23rd day of April, 1992.

On April 23,1992, the Defendant’s application for review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Steve Gannon, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Steve Gannon, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL LEWIS BOONE, Defendant.
    NO. 90-DC-012
    DECISION
   On May 7, 1991, the Defendant was sentenced to Count V, Assault, five (5) years; and Count VI, Assault, five (5) years. The sentences shall be served concurrently with credit given for 39 days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and he represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the following conditions added: (1) that as a condition of parole, the defendant shall have no contact with minors 18 years of age or younger without appropriate approval of his probation officer; and (2) that prior to defendant’s release from the Montana State Prison, he must successfully complete the anger management program at Montana State Prison.

The reason for the decision is the Sentence Review Board believes it is necessary to require such requirements to protect society from this defendant upon his release from the Montana State prison.

DATED this 23rd day of April, 1992.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Mr. Boone for his assistance to this Court.


text:
    CHARLES WHITE, Claimant-Appellant, v. FORD, BACON & DAVIS TEXAS, INC. Employer-Respondent, and AETNA LIFE & CASUALTY CO., Defendant-Respondent.
    No. 92-184.
    Submitted on Briefs September 17, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1117.
    256 Mont. 9.
    843 P.2d 787.

      For Appellant: Jeffrey T. Renz, Billings.
    For Respondent: William J. Mattix, Crowley Law Firm, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Claimant, Charles White, appeals the order of the Workers’ Compensation Court which denied his claim for additional permanent partial disability benefits based upon a 1982 injury. We affirm.

The issues for our review are:

1. Does substantial evidence support the Workers’ Compensation Court’s conclusion that Charles White failed to prove an entitlement to additional permanent partial disability benefits?

2. Did the Workers’ Compensation Court properly weigh the expert testimony?

3. Did the Workers’ Compensation Court err in admitting evidence of Charles White’s drug and alcohol abuse?

4. Does Aetna’s proposed conclusion of law stating that Charles White is entitled to receive a $10,000 nominal disability award constitute a judicial admission?

Charles White (White) sustained a compensable back injury on May 8, 1982, while working as a construction laborer at the Exxon refinery in Billings, Montana. Aetna Life and Casualty Co. (Aetna) was the insurer for the employer, Ford, Bacon and Davis Texas, Inc. Aetna paid White temporary total disability benefits at the rate of $241 per week from May 8, 1982 through December 20, 1982. Pursuant to the January 11, 1983 rating of Dr. Nelson, a neurologist, Aetna paid claimant $6,025 in permanent partial disability benefits at the rate of $120.50 per week for 50 weeks.

Dr. Schwarten, an orthopedic surgeon, and Drs. Nelson and Peterson, both neurologists, examined White in 1982. They performed various extensive examinations and tests. Dr. Peterson examined White on October 22, 1982 and concluded that he could return to work. On January 11, 1983, Dr. Nelson assigned a 10% impairment rating based on his June 16,1982 examination. As above mentioned, Aetna paid 50 weeks of permanent partial disability benefits based upon this impairment rating. In addition, Aetna advised White that such payment would not close the case and that additional compensation might be paid if his ability to work was affected by the injury or if future medical reports showed an increase in the percentage of his loss.

White contends the 1982 injury has reduced his earning capacity because he can no longer perform heavy work. White submitted various testimony in support of that theory. The record demonstrates that White worked as a construction laborer for 754.4 hours in 1983, 1,104.8 hours in 1984 and 437.5 hours in 1985. White testified these were light duty jobs with the exception of one which required the use of a jackhammer. The supervisor on one job testified that White performed concrete and other heavy work without complaint.

White testified that in 1984 he obtained a real estate license and began working for Associate Realty because he could no longer perform physical labor. The broker at Associate Realty testified that his impression was that White left construction labor because he wanted to get away from the organizational pressures of the laborer’s union in which he served as an officer. That broker further testified that White performed numerous physical labor jobs, such as renovating a building, moving heavy boxes and building various items and that he never observed White showing any signs of pain or discomfort.

The record establishes a key aspect of the case. White did not seek medical treatment or examination for back pain from 1983 to August 1988. White’s explanation was that he did not seek medical treatment for 5V2 years for his back pain because he did not think he had any rights left following his receipt of the impairment settlement. That is contradicted by the evidence on the part of Aetna that he was advised of his right to receive additional medical care and possible compensation if there was further disability.

Dr. Nelson saw White following a sudden onset of pain in August 1988, which White experienced while helping a friend with some fencing. Dr. Nelson testified that he could not say to any degree of medical certainty whether the disc bulge demonstrated in a 1988 MRI had been there in 1982.

In May 1990, Dr. Espinosa examined White and found him to be normal, assessing no limitation with regard to lifting, pulling, pushing, reaching, walking, stooping or kneeling. In June 1990, Dr. Wagner, a psychologist, evaluated White and concluded that the pain and discomfort was probably exacerbated by White’s anxiety and stress. In February 1991, Dr. Shaw, a specialist in occupational medicine, performed an independent medical examination and found no evidence of neurological defect or skeletal abnormality and could not attribute any of White’s symptomology to his 1982 muscle strain. He concluded that White’s symptoms can be explained by his poor posture, excess weight, smoking and generally poor physical condition.

Extensive evidence was introduced to show that White had a long history of drug and alcohol abuse, starting at age 14. This evidence included his treatment history from Rimrock Foundation. While at Rimrock, White was examined by Dr. Ely, a psychiatrist, who noted the adverse effects of drug and alcohol consumption with regard to White’s employment. Since White’s discharge from Rimrock, he has held a number of jobs ranging in pay from $5.00 to $8.00 per hour. This is less than he could earn as a construction laborer.

I.

Does substantial evidence support the Workers’ Compensation Court’s conclusion that White failed to prove an entitlement to permanent partial disability benefits beyond the permanent impairment award already paid to him as a result of his 1982 industrial injury?

A Workers’ Compensation Court’s decision will not be overturned by this Court if it is supported by substantial credible evidence. McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 813 P.2d 451. However, to the extent the decision is based on medical reports and depositions, this Court sits in as good a position as the Workers’ Compensation Court and we review the evidence de novo. This de novo standard of review does not extend to a review of the entirety of the case and the overall decision. Medical testimony must be harmonized with and considered in the context of the evidence as a whole. The substantial credible evidence standard controls the analysis of the record as a whole. McIntyre, 813 P.2d 454.

In this case, the Workers’ Compensation Court relied on the conclusion of this Court in Brown v. Ament (1988), 231 Mont. 158, 752 P.2d 171. In Brown, a claimant was injured in 1978. Following the termination of treatment for that injury on December 1, 1978, the claimant sought no further treatment for the injury for 31/2 years. The Workers’ Compensation Court found it a difficult case to chart because too much time had passed without explanation or a tracing of the injury. This Court said that the medical evidence was inconclusive and at best established only a possibility of a causal relationship between the two injuries. Brown, 752 P.2d at 175. Similarly, White sought no further medical treatment for his back following the termination of his treatment for the 1982 injury for more than 5V2 years after Dr. Nelson assessed the 10% impairment rating in January of 1983. White explained this lengthy lapse in treatment by testifying that he did not know he was entitled to additional medical benefits. However, a letter from Aetna to White dated March 2,1983, expressly advised him that the case remained open and that he could qualify for additional medical benefits.

White relied on the testimony of Dr. Nelson whose August 1988 notes made no indication that White had been experiencing back problems between 1982 and 1988. Dr. Nelson concluded that White’s industrial injury set the stage for potential re-injury down the road, an occurrence which he thought had happened several times, including the 1988 incident. Dr. Nelson requested an MRI which did not show a herniated disc but did show a bulge of a disc. He testified that he could not say to any degree of certainty whether that bulge existed in 1982 or developed subsequently. Dr. Nelson recommended light work as he had originally done in 1982. As previously mentioned Dr. Espinosa assessed no limitations in May of 1990 as to White’s employment. In February 1991, Dr. Shaw, a specialist in occupational medicine, opined that White’s condition was mechanical, found no evidence of neurological deficit or skeletal abnormality, and had no reason to preclude White from returning to work as a construction laborer. Dr. Shaw could not attribute any of White’s symptomatology to his 1982 muscle strain. In addition, the record contains substantial evidence on the issue including the following: (1) White’s representations and admissions at Rimrock; (2) White’s representations to medical and psychiatric professionals that he did not experience chronic back pain; (3) White’s representations to SRS employees who found him ineligible for rehabilitation services; (4) White’s contradictory statements in his deposition that he had an awareness of a constant uncomfortableness and subsequent testimony at trial of chronic back pain; and (5) White’s continued construction employment during the years 1983 to 1986.

The Workers’ Compensation Court concluded that White had failed to prove an entitlement to permanent partial disability benefits beyond the permanent impairment award already paid. The court pointed out that White had the burden of proving his case by a preponderance of credible evidence and referred to the statutory definition. The court then concluded that White had failed to prove by a preponderance of evidence that the injury he received in 1982 was responsible for or proximately caused his current employment condition. The court then pointed out that in this case the medical evidence is completely contradictory, and at best establishes only a possibility of a causal link between White’s employment and the industrial injury - which is insufficient to find compensability.

The court finally concluded that given the prolonged lapse in medical treatment and other evidence discounting the extent of White’s pain and discomfort, the totality of the evidence preponderated in favor of finding that White’s employment situation is not a direct result of his compensable industrial injury. The foregoing conclusions are supported by substantial evidence in the record. We therefore affirm that holding of the Workers’ Compensation Court.

White disputes the Workers’ Compensation Court’s finding that his chemical use had an adverse effect on his employment by his own admission in the Rimrock Foundation records and other testimony before the court. He argues that such findings are not material and that reliance on them is clear error. The record demonstrates that White entered a treatment program at Rimrock in 1987, but did not successfully complete the aftercare program. He lapsed into subsequent chemical abuse as late as 1989. Mr. and Mrs. White both testified in connection with this issue. The Workers’ Compensation Court is in the best position to observe the character and demeanor of the witnesses. We will not substitute our judgment for that of the trial court. Sharkey v. Atlantic Richfield Co. (1989), 238 Mont. 159, 777 P.2d 870. We conclude the evidence relating to drug and alcohol abuse is relevant to both job performance and earning capacity. We further conclude that the Workers’ Compensation Court properly admitted substance abuse evidence and weighed that evidence properly.

We hold that the Workers’ Compensation Court correctly concluded that White had failed to prove an entitlement to additional permanent partial disability benefits and that such conclusion is supported by substantial credible evidence.

II.

Did the Workers’ Compensation Court properly weigh the expert medical testimony?

White contends that the Workers’ Compensation Court failed to properly weigh Dr. Nelson’s testimony as White’s treating physician. He contends that Dr. Nelson’s testimony as treating physician was entitled to greater evidentiary weight. See Snyder v. San Francisco Feed & Grain (1987), 230 Mont. 16, 27, 748 P.2d 924, 931. As previously mentioned, Dr. Nelson’s treatment was very limited. He examined White on only two occasions — on June 16,1982 and in August 1988. As previously outlined, his testimony at most established the possibility of a causal link between the 1982 injury and White’s subsequent condition but does not constitute medical evidence which demonstrated to a reasonable degree of probability that there was a connection. We will not set forth in detail the extensive testimony which preponderated in favor of finding no permanent physical impairment in 1982 beyond the impairment paid for. We conclude there is substantial evidence to support the analysis and conclusions reached by the Workers’ Compensation Court.

We hold the Workers’ Compensation Court properly weighed the expert medical testimony.

III.

Did the Workers’ Compensation Court err in admitting evidence of White’s drug and alcohol abuse?

White contends that the Workers’ Compensation Court should not have admitted evidence about drug and alcohol abuse because Aetna refused to supplement discovery requests properly. Specifically, he claims that this action prejudiced him because he was not informed that Aetna would claim that substance abuse influenced his loss in earning capacity. He maintains that he was entitled to rely on Aetna’s good faith in making discovery responses and thus he could reasonably expect that this would not be an issue at trial.

The record is replete with information to the contrary. Aetna’s discovery requests asked for information relating to treatment for chemical dependency and all records relating to chemical dependency treatment. White signed the releases for such treatment information. Documents filed with the court argued the relevancy of treatment records and indicated that the possibility of a causal relationship between substance abuse and loss of earning capacity would be an issue. During their depositions, both Mr. and Mrs. White were questioned at length — with particularity and without objection — about his drug and alcohol abuse and its effects. On September 19, 1991, Aetna served a supplemental response to an interrogatory inquiring whether it contended that some other condition contributed to White’s degree of disability, stating:

At this point, defendant believes that the records identified and exchanged by the parties and [sic] indicate that any loss of earnings or capacity that Mr. White has experienced is not causally related to his May 8, 1982 industrial injury. Defendant believes that this conclusion is supported by the medical and psychological records that have been identified and exchanged and, most particularly, by the treatment records from Rimrock Foundation. The extent of Mr. White’s chemical abuse and its impact on his employment history is set forth in detail in those records.

The Workers’ Compensation Court noted this, stating, “I think the answer is pretty much right on the money as to what they’re arguing.”

A trial court’s ruling on the admissibility of evidence will not be disturbed absent a showing of an abuse of discretion. Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 721 P.2d 303. White bases his claim of error here upon his inability to discern from pre-trial events that Aetna would theorize that White’s drug and alcohol abuse affected his ability to maintain his employment. Nonetheless, White’s counsel came to the hearing armed with a brief dated and signed the day prior to the hearing which supported his argument against admitting evidence of drug and alcohol abuse. White’s counsel later objected to admission of the evidence because it was cumulative — because the evidence was already included in the Whites’ depositions which had already been admitted in the record based on his stipulation. We conclude that White was not taken by surprise in any manner nor was there a prejudicial failure to furnish information.

We hold that the Workers’ Compensation Court properly admitted evidence of White’s drug and alcohol abuse.

IV.

Does Aetna’s proposed conclusion of law stating that White is entitled to receive a $10,000 nominal disability award constitute a judicial admission?

Aetna proposed the following conclusion of law:

Mont. Code Ann. § 39-71-2906 provides that the judge of the Montana Workers’ Compensation Corut may grant nominal disability awards in cases where it is found that an accident has occurred in the course and scope of employment but no disability has resulted therefrom. That appears to be the situation in this case. Mr. White sustained a compensable industrial injury on May 8, 1982. As a result of that injury, it does not appear that he has sustained any permanent partial disability which term is defined as a loss of earnings or earning capacity occasioned by the industrial injury. Therefore, Mr. White is awarded the sum of TEN THOUSAND DOLLARS ($10,000) as a nominal disability award pursuant to the provisions of Mont. Code Ann. § 39-71-2906.

Aetna’s position has not changed from the beginning. It has consistently maintained that White sustained no loss of earning capacity as a result of his industrial injury. Aetna’s proposed conclusion recommended that the Workers’ Compensation Court exercise its discretion and grant Mr. White a nominal disability award. Anominal benefit award under former Section 39-71-2906, MCA, was authorized in cases where an accident had occurred during the course and scope of employment but no disability resulted therefrom. This does not have the effect of a confessory pleading or evidentiary admission. It could not be used as a substitute for legal evidence at trial.

Acourt enteringjudgment on the basis of proposed findings and conclusions submitted by the parties has a duty to properly consider the facts of the case and exercise its own independent judgment. In Sharkey, we said that the Workers’ Compensation Court properly considers the actual facts presented at trial through witnesses and exhibits and what the parties may have contended is irrelevant to the factual determinations made by the court. Sharkey, 111 P.2d at 873.

Here the Workers’ Compensation Court declined to award even a nominal disability award. This is within its discretion. In Brown v. Markve (1985), 216 Mont. 145, 700 P.2d 602, the jury awarded plaintiff $25,000 despite the fact that defense counsel suggested $30,000 as a fair verdict. This Court on appeal stated:

The court... concluded that this argument to the jury had the legal effect of an admission against interest which set the lower limits of the verdict at $30,000 ....
... [Tjhat suggestion cannot be classed as evidence or an admission against interest which set a floor of $30,000 below which the jury could not go. The jury remained the finder of fact with the right to set the damages at $25,000 or such other figure as the jurors might conclude to be appropriate under the evidence.

Brown, 700 P.2d at 603.

Similarly, Aetna’s proposed conclusion did not establish a lower limit of liability. We conclude that the Workers’ Compensation Court remained free to consider this proposed conclusion in light of the evidence presented and to reach its own conclusions.

We hold that Aetna’s proposed conclusion stating that White is entitled to receive a $10,000 nominal disability award does not constitute a judicial admission.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff, vs. NICHOLAS DANIELS, Defendant.
    NO. Dc-89-24
    DECISION
    DATED this 23rd day of April, 1992.
   On February 15, 1991, the Defendant was sentenced to ten (10) years with three (3) years suspended, with conditions, for the revocation of Burglary. Credit is given for 346 days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Ed Hayes, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the balance of the sentence shall be suspended upon defendant’s admission and successful completion of residential drug and alcohol treatment program such as the Lighthouse Program. In the event the defendant does not successfully complete the program, he is to be remanded back to the custody of the Warden of the Montana State Prison to serve the sentence as originally imposed by Judge Hegel.

The reason for the decision is on page 29 of the transcript, Judge Hegel thought defendant would be released from the Montana State Prison in a short period of time. Other reasons considered by the Sentence Review Board were the defendant’s young age and his candidness with this Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Ed Hayes, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM GEORGE CURRIER, JR., Defendant.
    NO. DC-91-206A
    DECISION

      DATED this 23rd day of April, 1992.
   On January 22, 1992 the Defendant was sentenced to ten (10) years for Issuing a had check. He is given credit for 18 days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Steven Gannon, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with one condition added. The Defendant shall be required to obtain an evaluation for sexual abuse and to obtain counseling if deemed necessary.

The reason for the decision is that it has been brought to the attention of this Court, by defendant’s counsel, that the defendant was sexually abused as a child and the Sentence Review Board finds this could partly be responsible for defendant’s actions as a young adult. The remaining sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Steve Gannon, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


author: HONORABLE G. TODD BAUGH DISSENTS.

text:
    STATE OF MONTANA, Plaintiff, vs. CLARA MAE HESS, Defendant.
    NO. CR-89-43
    DECISION
   On September 28, 1990, the Defendant was sentenced to thirty (30) years for Mitigated Deliberate Homicide plus five (5) years for the use of a weapon. The sentences are to be served consecutively. Credit is given for 83 days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Charles F. Moses, Attorney at Law from Billings. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 23rd day of April, 1992.

After careful consideration, there was a split decision rendered by the Sentence Review Division. Judge McLean and Judge McKittrick voted to affirm the decision of the District Court.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Judge.

HONORABLE G. TODD BAUGH DISSENTS.

He voted that a portion of the sentence should be suspended because of (1) the age of the defendant, (2) the jury rendered a guilty decision on Mitigated Deliberate Homicide, (3) the defendant had no priors and (4) the defendant suffered from spousal abuse syndrome.

The Sentence Review Board wishes to thank Charles F. Moses, Attorney at Law for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. GLENN CHARLES NEELY, Defendant.
    NO. 7073
    DECISION
    DATED this 23rd day of April, 1992.
   On April 1,1991, the Defendant’s sentence for Sexual Assault was revoked and he was sentenced to ten (10) years at the Montana State Prison. The Defendant shall successfully complete the Sexual Offender Program at the Montana State Prison prior to becoming eligible for parole.

On April 23,1992, the Defendant’s application for review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michael Moore, Legal Intern from the Montana Defender Project. The state was represented by Karen Townsend, Deputy County Attorney, from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, hut also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Michael Moore, Legal Intern from the Montana Defender Project and Karen Townsend, Deputy County Attorney from Missoula for there assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. FRANKLIN F. McKNIGHT, Defendant.
    NO. C-578
    DECISION
    DATED this 23rd day of April, 1992.
   On October 3, 1990, the Defendant was sentenced to Count III Sexual Intercourse without Consent, twenty (20) years with ten (10) years suspended with conditions plus credit for 15 days served. The defendant shall not be considered for parole until he has successfully completed the prison sex offender’s program.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by DirkBeccari, Public Defender from Missoula. The state was represented by M. Shaun Donovan, Mineral County Attorney, from Superior, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Dirk Beccari, from the Public Defender Program in Missoula as well as M. Shaun Donovan, Mineral County Attorney for their assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY JOHN SOPER, Defendant.
    NO. 9667
    DECISION

      DATED this 23rd day of April, 1992.
   On May 29, 1991, the Defendant was sentenced to Count I, Burglary, twenty (20) years; Count II, Burglary, twenty (20) years; Count III, Theft, ten (10) years; Count IV, Attempted Burglary, twenty (20) years; plus credit is given for 57 days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kevin Braun, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Frank M. Davis, Acting Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Kevin Braun, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RUSSELL S. BONEBRAKE, Defendant.
    NO. 8129
    DECISION
    DATED this 23rd day of April, 1992.
   On November 6, 1991, the Defendant was sentenced to Count II, Bail Jumping, eight (8) years.

On April 23,1992, the Defendant’s application for review ofthat sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michael Moore, Legal Intern from the Montana Defender Project. The state was represented by Karen Townsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Frank M. Davis, Acting Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges

The Sentence Review Board wishes to thank Michael Moore, Legal Intern from the Montana Defender Project and Karen Townsend, Deputy County Attorney for their assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM HOWARD SCRUGGS, Defendant.
    NO. 9596
    DECISION
    DATED this 23rd day of April, 1992.
   On May 29,1991, the Defendant was sentenced to Count I, Criminal Endangerment, ten (10) years; Count II, Driving while License Suspended or Revoked, a misdemeanor, six (6) months in the Missoula County Jail; Count III, Operating a Motor Vehicle without Liability Insurance, ten (10) days in the Missoula County Jail; Dangerous Designation.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Renee Pettinato, Legal Intern from the Montana Defender Project. The state was represented by Karen Tbwnsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.The reasons for the decision are the Dangerous Designation was justified by the record, and the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Frank M. Davis, Acting Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges

The Sentence Review Board wish to thank Renee Pettinato, Legal Intern from the Montana Defender project and Karen Townsend, Deputy County Attorney from Missoula for their assistance to the defendant and to this Court.


author: HONORABLE G. TODD BAUGH DISSENTS:

text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM ARTHUR KING, Defendant.
    NO. DC-90-128A
    DECISION

      DATED this 23rd day of April, 1992.
   On February 22,1991, the Defendant was sentenced to twenty (20) years with ten (10) years suspended for Criminal Possession of Dangerous Drugs with the intent to sell. The Defendant is not eligible for parole until he successfully completes chemical dependency treatment. Upon release the Court recommends the Defendant go to an appropriate Veterans Administration Hospital for treatment of Post Traumatic Stress Syndrome. Credit is given for nine days time served.

On April 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Patrick Sherlock, Attorney at Law from Kalispell, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there was a split decision of the Sentence Review Division. Judge McLean and Judge McKittrick voted to affirm the decision of the District Court.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Judge.

HONORABLE G. TODD BAUGH DISSENTS:

. He finds the sentence was excessive for the amount of marijuana involved.

The Sentence Review Board wishes to thank Patrick Sherlock, Attorney at Law for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. WARREN WILLIAMS, Defendant.
    NO. DC-91-188B
    DECISION
    DATED this 8th day of May, 1992.
   On January 27,1992, the Defendant was sentenced to ten (10) years for theft, plus was given credit for 94 days time served.

On May 8,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Penni Probert, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, hut also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to ten (10) years, all of which shall be suspended. Plus the following conditions shall be imposed:

(1) That the defendant be placed under the jurisdiction of the Department of Corrections subject to any and all rules of that Department.

(2) That the defendant not consume any alcoholic beverages nor will he consume any drug that is not prescribed by his physician in the quantities prescribed. In the event that he is prescribed medication by a physician, he shall report this to his probation officer within 72 hours.

(3) That he not be allowed to drive a motor vehicle without having liability insurance and without being licensed by the Montana authorities or any other jurisdiction while on probation.

(4) That he must enroll and successfully complete the Faith Works Treatment Program in Kalispell, Montana, under the direction of Mr. Bill Davison. In the event he transfers to another jurisdiction, he shall enroll in a similar program.

(5) The defendant must pay $105 restitution on a payment schedule to be set by his probation officer through the Flathead County Clerk and Recorders Office.

The reason for the decision is there is a great disparity between the sentence the petitioner received and that of his co-defendant, Mr. Steve Phillips.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Judge.

The Sentence Review Board wishes to thank Ms. Penny Probert, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. LAWRENCE DEAN LUKE, Defendant.
    NO. DC-87-026 and DC-91-021
    DECISION
    DATED this 8th day of May, 1992.
   On June 12,1991, the Defendant was sentenced to ten (10) years for Burglary and was given credit for 61 days time served. On June 28,1991 the Defendant’s sentenced for Issuing a Bad Check was revoked and he received eighteen (18) months to be served consecutive with the term imposed in DC-91-021. Credit is given for 21 days time served in addition to 72 days credit in the original judgment.

On May 8,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dan Safransky, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Dan Safransky, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.