author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON,

text:
    DONALD J. HARTMAN, Claimant and Respondent, v. STALEY CONTINENTAL, Employer, and National Union Fire Insurance, Defendant and Appellant.
    No. 88-303.
    Submitted on Briefs Nov. 3, 1988.
    Decided Feb. 16, 1989.
    768 P.2d 1380.

      Marra, Wenz, Johnson & Hopkins, Gary L. Green, Great Falls, for appellant.
    Erik B. Thueson, Helena, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Staley Continental and National Union Fire Insurance appeal the decision of the Workers’ Compensation Court, awarding Donald J. Hartman, the claimant, $36,625.00 in permanent partial disability benefits, $13,690.60 in attorney fees and $1,915.29 in costs. We affirm and remand this case to assess reasonable attorney fees and costs in connection with this appeal and in accordance with § 39-71-611, MCA (1985).

The two issues raised on appeal are:

(1) Whether substantial, credible evidence supports the Workers’ Compensation Court’s award to the claimant of $36,625.00;

(2) Whether the Workers’ Compensation Court erred in awarding the claimant $13,690.60 in attorney fees and $1,915.29 in costs.

Staley Continental, a company that sells food, paper products and other supplies to restaurants, hospitals and nursing homes, hired Donald J. Hartman, the claimant, in 1980 as a sales representative. Hartman’s responsibilities for Staley Continental include developing and servicing new accounts in the Hi-Line area. Hartman drives over 750 miles a week in the course of his employment and works 12 to 15 hours a day, four days a week. Half of his time is spent driving and seeing his clients and the other half is spent doing the necessary paper and computer work to ensure that the clients receive their orders.

Hartman’s starting salary with Staley Continental in 1980 was approximately $1,100 per month. His income has gradually increased, and in 1987 he made approximately $68,000 plus substantial fringe benefits. Hartman contributes the majority of his success to the Hi-Line area, stating that the area is sparsely populated and generally ignored by food service industry people and therefore he is not faced with competition. He also contributes his success to his relationship with his customers which he has developed over many years.

On September 22, 1980, while performing his duties for Staley Continental, Hartman was involved in an automobile accident. This accident resulted in lasting, but not disabling injuries. As a result of the 1980 accident, Hartman suffered injuries to his lower back and neck, but Hartman testified that the accident caused no problems “whatsoever” in his job performance for Staley Continental. Hartman filed a workers’ compensation claim for this accident. This claim has been settled and is not at issue in this appeal.

On October 28, 1985, Hartman was involved in a second automobile accident within the course and scope of his employment. This accident exacerbated Hartman’s previous existing neck injury. A physician, Dr. Swift, examined Hartman after the 1985 accident and found that Hartman sustained a musculoligamentous sprain to his neck. As a result of this 1985 accident, Hartman claims that he is entitled, under §§ 39-71-705 through -708, MCA (1985), to 500 weeks of permanent partial disability.

On May 10, 1988, the Workers’ Compensation Court issued its findings of fact and conclusions of law and concluded that Hartman was entitled to 250 weeks of permanent partial disability benefits at a rate of $146.50 per week, beginning on the date of injury. The court also concluded that Hartman was entitled to an award of reasonable costs and attorney fees pursuant to § 39-71-611, MCA (1985). On May 24, 1988, the court concluded that Hartman was entitled to reasonable attorney fees of $13,690.60 and $1,915.29 in costs. National Union Fire Insurance, the defendant, appeals.

The first issue raised on appeal is whether substantial, credible evidence supports the Workers’ Compensation Court’s award to Hartman of $36,625.00.

The courts’ findings, which are clearly set forth in the record, are based upon testimonies from Hartman, Dr. Swift, and two vocational rehabilitative counselors. At the October 13, 1987 proceedings, Hartman testified that as a result of the 1985 accident the pain in his neck has increased; his daily work schedule exacerbates his neck injury; his driving has been hampered to the point that it has become dangerous for him to drive at times; and he has practically given up his hobbies and recreational activities because of the pain that such activities cause. In an attempt to alleviate his neck condition, Hartman testified that he has taken several different medications, undergone cervical traction and chiropractic manipulations, and has gone weekly, when allowed by his work schedule, to a physical therapist.

None of the above treatments have been successful for Hartman in providing permanent relief for his neck condition. The physical therapist stated, in a letter to Dr. Swift, that “[progress has been slow and variable, and it appears to be related to his work and the inconsistency of his therapy attendance which is because of his work schedule as well.” Dr. Swift testified that, based on a reasonable degree of medical certainty, Hartman has one of three options if he is to get some relief: (1) quit his present job and take on new employment that might not exacerbate his condition; (2) cut down on the number of hours that he works and the physical driving distances that he is presently required to do; or (3) transfer to some other job within his current company that would not require driving. Hartman testified that as a result of the detrimental emotional and physical consequences he suffers from the 1985 accident, he is not going to continue working at his present job. He also testified that the reason he has continued working after this accident, despite his injuries, is because of his financial obligations and because he did not become half-vested in his company’s profit-sharing and retirement programs until May 20, 1988. In light of the above, the court found that Hartman cannot emotionally or physically continue with his present employment much longer.

The Workers’ Compensation Court appropriately applied the law in effect at the time of Hartman’s accident. Trusty v. Consolidated Freightways (1984), 210 Mont. 148, 151, 681 P.2d 1085, 1087. The court then determined, based upon the information above, that Hartman was entitled to an award of permanent partial disability benefits pursuant to §§ 39-71-705 through -708, MCA (1985). The court first noted that permanent partial disability is defined in § 39-71-116(12) as:

“a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.”

The court then noted that in Montana a partially disabled claimant, injured prior to the enactment of the 1987 amendments, may elect benefits under either § 39-71-703, MCA, to recover actual loss of earning capacity, or §§ 39-71-705 through -708, MCA, which purportedly indemnifies a claimant for possible loss of future earning capacity, regardless of whether an actual loss in earning capacity is demonstrable. McDanold v. B.N. Transport, Inc. (1984), 208 Mont. 470, 476-77, 679 P.2d 1188, 1191. The court recognized that in this case Hartman proceeded under §§ 39-71-705 through -708, MCA.

The specific statute pertaining to Hartman’s type of permanent partial injury is § 39-71-706, MCA (1985). This statute provides in pertinent part that

“[i]n all other cases of permanent injury less than total not included in the schedule provided for in 39-71-705, the compensation for partial disability shall bear such relation to the periods stated in the schedule provided for in 39-71-705 as the disabilities bear to those produced by the injuries named in the schedule or to partial disability (500 weeks).”

The court recognized that the maximum allowable entitlement that a claimant could receive under this section for an injury occurring on October 28, 1985 is $146.50 per week for 500 weeks which would total $73,250.

In determining the degree to which Hartman’s earning capacity has been impaired, the court appropriately considered Hartman’s age, education, work experience, pain and disability, actual wage loss and possible loss of future earning capacity. Holton v. F.H. Stoltze Land and Lumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12; Flake v. Aetna Life & Casualty Co. (1977), 175 Mont. 127, 129, 572 P.2d 907, 909. The court recognized that at the time of the trial, Hartman was 39 years of age and had been a traveling salesman since 1979 and continues to work in that capacity. The court also recognized that he has a high school diploma and two years of college.

The court then recognized that Hartman’s 1987 salary recorded on his W-2 form was $68,000 plus. The court relied upon the testimonies of the two rehabilitative vocational counselors — Mark Williams, who was called by Hartman, and Jeanne Dussault, who was called by National Union Fire Insurance — to determine Hartman’s possible loss of future earning capacity. Dussault testified that one business she contacted expressed a possible interest in hiring Hartman and that one salesman for that company had made in excess of $100,000 a year. Hartman was subsequently called as a rebuttal witness and testified that he was familiar with the company referred to by Dussault and that in his opinion, it would be an “absolute impossibility” for a sales representative to make over $100,000 for that company. In addition, Dussault testified on cross-exam that she has never placed an injured worker, with or without a college degree, in a position that pays over $60,000 a year. Dussault also testified that a management level position with Hartman’s current employer, a possible alternative to Hartman’s current position, has a base salary of $36,000 a year plus benefits or $45,000 a year if fringe benefits are included. Williams conducted an employers’ survey, and based upon the responses, he testified that the average salesman earned approximately $25,000 to $26,000 per year and that in a best case scenario this figure would equal $38,000. In light of the above, the court found that Hartman will likely take a fifty percent reduction in his current income upon leaving his present position.

When reviewing a decision by the Workers’ Compensation Court, this Court’s function is to determine whether substantial evidence exists to support the Workers’ Compensation Court’s findings of fact and conclusions of law. Coles v. Seven Eleven Stores (Mont. 1985), 217 Mont. 343, 704 P.2d 1048, 1050, 42 St.Rep. 1238, 1240, Davis v. Jones (Mont. 1985), 216 Mont. 300, 701 P.2d 351, 353, 42 St.Rep. 840, 843. In this case, the court found that although Hartman returned to work immediately after the 1985 accident and has not presently sustained actual loss of wages as a result of his injuries, he has nonetheless suffered pain and difficulties in his employment because of the accident. The court also found that Dr. Swift’s testimony and Hartman’s own testimony indicates that Hartman will have to make a change in his employment if he ever expects to be relieved of some of his pain and symptoms. Upon leaving his present position, the court found that Hartman will likely take a fifty percent reduction in his current income. The court then concluded that fifty percent was an appropriate disability factor on which to base Hartman’s benefits for possible loss of earning capacity. In applying this figure, the court awarded Hartman 250 weeks of permanent partial disability benefits at a weekly rate of $146.50, beginning from the date of Hartman’s 1985 accident. In view of the Workers’ Compensation Court’s findings of fact and conclusions of law, we hold that substantial credible evidence supports the Workers’ Compensation Court’s determination of Hartman’s permanent partial disability benefits.

The defendant, in an attempt to attack the basis of the court’s findings, argues that the court “erroneously relied” on the deposition testimony from Hartman’s two expert witnesses and then “misunderstood” oral testimony from its expert witness. We disagree. This Court is in as good a position as the Workers’ Compensation Court to assess the weight given to deposition testimony, Shupert v. Anaconda Aluminum Co. (1985), 215 Mont. 182, 696 P.2d 436, 439, 42 St.Rep. 277, 281-82, but this Court will defer to the Workers’ Compensation Court’s findings as to the weight and credibility of oral testimony. Frost v. Anaconda Co. (1985), 216 Mont. 387, 701 P.2d 987, 988 42 St.Rep. 889, 891. In light of the evidence presented at the trial and discussed above, we hold that the Workers’ Compensation Court did not erroneously rely on the deposition testimonies of Hartman’s two expert witnesses — Dr. Swift and Mark Williams, the rehabilitative vocational counselor, — nor did the court misunderstand the defendant’s expert witness’s oral testimony. We conclude that the court properly considered and weighed all of the testimonies in determining Hartman’s permanent partial disability benefits.

The defendant also argues that substantial credible evidence presented at the trial supports its contentions that Hartman’s salary will not decrease as a result of his 1985 accident. However, as previously stated, this Court’s function on review is to determine whether substantial credible evidence supports the lower court, and not, as the defendant argues, to determine whether substantial credible evidence exists to support contrary findings. Davis, 701 P.2d at 353, 42 St.Rep. at 843.

The second issue raised on appeal is whether the Workers’ Compensation Court erred in awarding Hartman $13,690.60 in attorney fees and $1,915.29 in costs.

On June 8,1988, the Workers’ Compensation Court issued an order awarding Hartman $13,690.60 in attorney fees and $1,915.29 in costs. In determining these amounts, the court relied upon § 39-71-611, MCA (1985), the law in effect at the time of Hartman’s accident.

In asserting that the Workers’ Compensation Court erred in awarding Hartman attorney fees, the defendant sets forth a series of novel “arguments.” The defendant recognizes that successful claimants are entitled to attorney fees but argues that Hartman was not a “successful” claimant. Specifically, the defendant argues that Hartman was not successful because Hartman contended he was entitled to $73,250.00 and the court awarded him only $36,625.00. The defendant further “supports” this “argument” by stating that its initial $5,000 settlement offer more closely approximated the court’s award of $36,625.00 than Hartman’s request of $73,250.00, and therefore indicates that Hartman was not successful.

We hold that defendant’s argument set forth above lacks merit. The statute applied by the Workers’ Compensation Court, § 39-71-611, MCA (1985), merely states that a claimant who is “adjudged compensable by the workers’ compensation judge or on appeal” is entitled to reasonable costs and attorney fees. In the present case, the Workers’ Compensation Court found that Hartman was entitled to compensation under § 39-71-706, MCA (1985), and therefore entitled to reasonable attorney fees and costs. In Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303, this Court stated that the “objective of the statutes allowing attorney fees in compensation cases [is] to preserve in tact the eventual award recovered by the claimant for his impairment, by assessing in addition his attorney fees and costs against the insurer or employer.” 204 Mont. at 108, 664 P.2d at 309. By engaging in subjective evaluations of whether a claimant, who was awarded benefits by the Workers’ Compensation Court, is “successful” according to defendant’s definition would go against the objective of preserving the eventual award the claimant recovers, regardless of actual amount recovered. We therefore disagree with defendant’s definition of “successful” and hold that the plain meaning of § 39-71-611, MCA (1985), clearly allows a claimant, who is “adjudged compensable by the workers’ compensation judge or on appeal,” to recover reasonable costs and attorney fees.

The defendant next argues that the Workers’ Compensation Court incorrectly applied § 39-71-611, MCA (1985), when assessing Hartman’s attorney fees and costs. Section 39-71-611, MCA (1985), applies when an insurer denies liability. The defendant argues that the appropriate statute in this case is § 39-71-612, MCA (1985), which applies when an insurer acknowledges liability but disputes the amount of compensation due the claimant. The defendant thus argues that they did not deny liability, but merely disputed the amount of compensation sought by Hartman and therefore the applicable statute in this case to determine attorney fees and costs is § 39-71-612, MCA (1985). The record does not support the defendant’s factual assertions. In both the pretrial order and the defendant’s proposed conclusions of law, the defendant asserts that the claimant is not entitled to any compensation. In addition, the defendant fails to argue how the application of § 39-71-612, MCA (1985), would cause a different assessment of attorney fees and costs in this case. We therefore hold that the Workers’ Compensation Court properly applied § 39-71-611, MCA (1985), in assessing Hartman’s attorney fees and costs.

The defendant also argues that the court should have used the contingency fee agreement between Hartman and his attorney to assess the attorney fees. In assessing the amount of reasonable attorney fees and costs, the court relied upon § 39-71-614, MCA (1985). This statute does not state that a contingency fee agreement between a claimant and the attorney limits a court’s determination of the amount of reasonable attorney fees awarded to a claimant. To the contrary, the statute requires that the attorney’s fee “must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought before the workers’ compensation judge.” Although the statute does not restrict the claimant and the attorney from entering into a contingency fee arrangement, the statute also does not tie a judge’s hand by stating that a contingency fee agreement determines the upper limit of what constitutes reasonable attorney fees in a workers’ compensation case.

The defendant also relies upon McKinley v. American Dental Manufacturing Co. (Mont. 1988), [232 Mont. 92,] 754 P.2d 831, 45 St.Rep. 892, to assert that a court must pay attorney fees based upon the difference between a settlement offer and the amount awarded by the court. The reliance by the defendant on McKinley is misplaced. In McKinley, this Court interpreted language in § 39-71-612, MCA (1983), that the legislature subsequently repealed in 1985. Hartman’s accident occurred in 1985, therefore, the 1985 amendments apply in this case. We therefore hold that the Workers’ Compensation Court properly assessed the attorney fees and costs awarded to Hartman.

We affirm and remand this case, pursuant to Hartman’s request and in accordance with § 39-71-611, MCA, to the Workers’ Compensation Court to award attorney fees and costs associated with this appeal.

MR. JUSTICES SHEEHY, HARRISON, WEBER and McDON-OUGH concur.

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

In my opinion, the permanent partial benefit award of $146.50 per week for 250 weeks is, at best, premature, and is based on a flawed computation methodology.

The record discloses that the claimant was injured on October 28, 1985, when he lost control of his car, received emergency medical treatment consisting of a muscle relaxant and a pain medication, was released from the hospital the same date, returned to work the following day, has had no wage loss, and has increased his gross wage income each year from $56,318.30 in 1985 to $68,000 in 1987.

The Workers’ Compensation Court Judge, in his Findings and Conclusions of Law, included the following:

“The Court finds that the medical testimony and credible vocational evidence indicates that Mr. Hartman has a potential loss of future earning capacity . . .

“This testimony clearly indicates that claimant is going to have to make a change in his employment if he ever expects to be relieved of some of his pain and symptoms.

“The question, then, is: Can claimant make a change in his employment without experiencing a decline in his income? . . .

“Given the above facts, this Court finds that should claimant leave his current employment, it is likely that it would be for a position paying $36,000.00 a year, or approximately 50 percent of his 1987 income of $68,000.00. Furthermore, this Court holds that fifty percent is an appropriate disability factor on which to base claimant’s benefits for potential loss of earning capacity. In applying this figure, claimant is entitled to 250 weeks of permanent partial disability benefits at a weekly rate of $146.50. These benefits are to be paid from the date of claimant’s industrial accident. (Emphasis added.)

In my opinion, based on the deposition testimony, uncontroverted facts and pertinent statutes, the above quoted excerpts from the Findings and Conclusions are not legally supportable.

The medical record, in deposition form, is replete with references to the failure of the claimant to comply with the medically recommended exercise regime, which was based upon the knowledge that claimant would be driving long distances and working long hours during his four day work week. Testimony at trial indicated that claimant had six to eight weeks of paid sick leave available to him which he did not utilize for physical therapy purposes. Further, evidence disclosed that claimant took extended vacations to Seattle, Washington and Edmonton, Canada by motor vehicle when less strenuous activity might have aided his recovery. I find erroneous the court’s conclusion that “Claimant is going to have to make a change in his employment if he ever expects to be relieved of some of his pain and symptoms.”

Regarding the possible change of jobs in the future, the claimant stated: “I’m just trying to delay it until my very expensive teenagers get out of the home, and then I’m going to do something else.”

The claimant having remained on the job for the past three years, with increased earnings each year, and with the possibility of the claimant remaining in that same position for the next several years, it could only be through conjecture and speculation that the court found a fifty percent disability factor “on which to base claimant’s benefits for potential loss of earning capacity.”

It is therefore my opinion that the award is premature and, as the court correctly stated: “Should claimant experience an actual diminution of his income for which he has not been compensated, he may withdraw his Section 705 election in favor of Section 703, for loss of actual wages.”

MR. CHIEF JUSTICE TURNAGE concurs in the foregoing dissent of MR. JUSTICE GULBRANDSON.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE HASWELL, Retired, MR. JUSTICE WEBER, MR. JUSTICE WEBER,

license: Public Domain

text:
    TAMMY PROUT, Plaintiff and Appellant, v. SEARS, ROEBUCK AND COMPANY and Terry McGinnis, Defendants and Respondents.
    No. 88-117.
    Submitted Nov. 28, 1988.
    Decided Feb. 16, 1989.
    Amendments to Dissent May 2, 1989.
    Rehearing Denied May 2, 1989.
    772 P.2d 288.

      Randy K. Dix argued, Helena, for plaintiff and appellant.
    John Sullivan argued, Hughes, Kellner, Sullivan & Alke, Helena, for defendants and respondents.
   MR. CHIEF JUSTICE HASWELL, Retired,

sitting for MR. JUSTICE HUNT, delivered the Opinion of the Court.

In this action for wrongful termination of employment, the underlying issue is whether there is a genuine issue of material fact precluding summary judgment. The District Court held there was none. We disagree.

Plaintiff Tammy Prout, an employee of the Sears catalogue store in Helena, Montana, was fired by Terry McGinnis, the store manager, on December 2, 1986. The reason for termination given by Sears to Tammy was falsification of her time sheets showing the hours she worked on two occasions. She sued Sears and McGinnis for wrongful termination of her employment, alleging breach of the implied covenant of good faith and fair dealing, negligent firing, estoppel and negligent infliction of emotional distress. The defendants answered claiming that Tammy was an employee at-will subject to termination for any reason deemed sufficient by Sears, without any reasonable expectation of job security; accordingly, the implied covenant of good faith and fair dealing did not exist in the employment relationship between Sears and Tammy and cannot be used as a basis for her claim of wrongful discharge.

Following pretrial discovery and entry of a pretrial order pursuant to Rule 16, M.R.Civ.P., the District Court of Lewis and Clark County granted the defendants’ motion for summary judgment holding there was no genuine issue of material fact presented and that defendants were entitled to judgment as a matter of law.

The undisputed facts disclose that plaintiff went to work at the Sears catalogue store in Helena on a part-time basis when she was a sixteen-year-old high school student. At that time she signed an employment application reading in pertinent part:

“ ‘In consideration of my employment, I agree to conform to the rules and regulations of Sears, Roebuck & Co. and my employment and compensation can be terminated with or without notice, at any time, at the option of either the company or myself. I understand that no unit manager or representative of Sears, Roebuck & Co. other than the president or vice president of the company, has any authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the foregoing.

“ ‘May 30, 1979. /s/ Tammy Sharpe [Prout]’ ”

When plaintiff was hired four days later she signed a personal record card containing the following language:

“ ‘In consideration of my employment, I agree to conform to the rules of Sears, Roebuck & Co. and my employment and compensation can be terminated, with or without cause and with or without notice, at any time, at the option of either the company or myself.

“ ‘June 4, 1979. /s/ Tammy Sharpe [Prout]’ ”

The agreed facts in the pretrial order further indicate that Tammy was initially hired as a sales person but a little over two years later, on August 10, 1981, she was promoted to the position of machine operator and given a twenty cent per hour increase in pay due to the higher technical skills required of the machine operator’s position. On January 2, 1983, Tammy was promoted to the position of Division Head A (supervisor) and received a pay increase of $1.50 per hour. The agreed facts further state that “Tammy Prout was given these promotions because her supervisors were generally satisfied with her job performance.” On December 2, 1986, Terry McGinnis advised Tammy that her employment with Sears was terminated effective that date.

During Tammy’s employment at the Helena Sears store Sears changed managers five times. At least three of these managers gave performance evaluations on Tammy reporting that she had difficulties with absenteeism and tardiness which needed attention and correction. These reports and other warnings given to Tammy were both written and verbal. The reason given by Sears to Tammy for her termination was falsification of two time sheets although Mc-Ginnis, the manager, also claimed he asserted absenteeism and tardiness.

At the heart of this dispute is Sears’s time-keeping and payment system. Sears paid its employees in the Helena store every Friday for the preceding week on the basis of time sheets due at the central payroll office each Thursday for the entire work week. Thus, if an employee was scheduled to work on Friday or Saturday, the employee would enter the scheduled hours for those days on the Thursday time sheet and be paid accordingly on Friday of the following week. If, in fact, the recorded Friday and Saturday hours were not worked as scheduled, the employee was supposed to teletype the correction of hours to the central payroll office the following Monday.

The weekly time sheets signed by Tammy contained this language:

“I have recorded my actual starting and quitting time each day. Any falsification will subject me to immediate dismissal.”

This was signed by Tammy each week as she sent in her weekly time sheet.

Tammy believed that it was an acceptable practice to make up the necessary hours during the next work week rather than to teletype the corrections into the central payroll office on the Monday following a missed day. Tammy and two former employees of the Helena Sears store testified by deposition this was an accepted store practice under two prior store managers. The existence of this practice was disputed by defendant McGinnis and several current employees.

During two pay periods in November, 1986, Tammy missed time at work which she had recorded on her time sheets as having worked. She did not teletype in the Monday corrections adjusting her pay. Tammy was paid for these hours which were missed. She was attempting to make up the hours missed on a compensatory time basis. Both of the two incorrect time sheets were observed by manager McGinnis, and he promptly fired Tammy for this reason when she returned to work after receiving the pay check under the second inaccurate time sheet.

The pretrial order lists the following issues of fact, among others, that remain to be litigated upon the trial:

1. Whether defendants acted unfairly and in bad faith toward plaintiff;

2. Whether defendants acted in a negligent manner;

3. Whether defendants negligently inflicted emotional distress upon plaintiff;

4. Whether defendants are equitably estopped from relying upon the language in the employment application and personal record card regarding termination without cause or notice;

5. Whether defendants led plaintiff to believe that her time-keeping procedures were acceptable to them, and, if so, whether defendants are equitably estopped from terminating plaintiff for allegedly falsifying her time sheets;

6. Whether plaintiff acted negligently concerning her termination.

One of the issues of law listed in the pretrial order is whether the provisions of plaintiff’s employment application and personal record card bar the claims asserted in this lawsuit. The pretrial order notes that this legal issue is the subject of a pending motion for summary judgment by defendants.

The gist of the District Court’s ruling on the motion for summary judgment is contained in the following language:

“The sole issue decided by the Court is that plaintiff’s claims are precluded as a matter of law by the language of plaintiff’s employment application and her personal record card. That language in clear and unequivocal terms notified plaintiff that her employment could be terminated at any time and for any reason, and defeats the claims plaintiff is attempting to assert in this case.”

At the outset, we note that this case is governed by the law that existed at the time of firing, December 1986, and is no way affected by legislation enacted by the 1987 legislature.

Montana’s at-will employment statute provides in pertinent part:

“TERMINATION AT WILL. An employment having no specified term may be terminated at the will of either party on notice to the other, except where otherwise provided by [statute].” Section 39-2-503, MCA

Notice prior to termination is not required. Gates v. Life of Montana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063 (Gates I). None of the statutory exceptions are applicable to this appeal.

Because of the harshness of this statute when applied literally and mechanically to all at-will employment terminations (Nye v. Dept. of Livestock (1982), 196 Mont. 222, 639 P.2d 498), and because of abuses inherent in employment relationships between parties of unequal bargaining power (Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015; Stark v. The Circle K Corporation (Mont. 1988), [230 Mont. 468,] 751 P.2d 162, 45 St.Rep. 377), courts in Montana and elsewhere, to achieve justice in a wide variety of employment situations, have established exceptions to the unlimited discretion of the at-will employer to discharge his employees. We need not concern ourselves here with a survey and exposition of the law in this area nationally or in other jurisdictions, as Montana has proven to be a fertile field for such litigation and has developed its own law and precedent accordingly.

Aside from statutory enactments, Montana courts have recognized four exceptions to the right of the at-will employer to discharge its employees:

1. When the discharge violates public policy: Keneally v. Orgain (1980), 186 Mont. 1, 606 P.2d 127; Staudohar v. Anaconda Co. (D. Mont. 1981), 527 F.Supp. 876; Nye v. Dept. of Livestock, supra.

2. When the discharge breaches an express or implied promise of job security: Gates I, supra; Dare v. Montana Petroleum Marketing Co., supra; Stark v. The Circle K Corporation, supra.

3. When the discharge breaches the implied covenant of good faith and fair dealing: Gates I, supra; Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213 (Gates II); Dare, supra; Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487; Malloy v. Judges Foster Home Program (Mont. 1987), 746 P.2d 1073, 44 St.Rep. 1996; Stark, supra.

4. Negligent discharge: Crenshaw, supra.

These four exceptions frequently overlap. For a good exposition of the Montana law in this area, see Hopkins and Robinson, Employment At-Will, Wrongful Discharge, and the Covenant of Good Faith and Fair Dealing in Montana, Past, Present, and Future, 46 Mont. L. Rev. 1 (1985).

In this case we have an express, written, at-will employment relationship between Sears and Tammy, giving Sears the right to terminate her employment, without notice, without cause and providing that any falsifications of time sheets would subject Tammy to immediate dismissal. We have a pretrial order approved both as to form and content by the attorneys for the respective parties, signed and entered by the district judge, and listing what the parties considered eight issues of fact remaining to be litigated at the trial. Fact issues listed include whether the defendants acted unfairly and in bad faith toward the plaintiff; whether defendants acted negligently concerning plaintiff’s termination; whether defendants led plaintiff to believe that her time-keeping procedures were acceptable to them, and, if so, whether defendants are equitably estopped from terminating plaintiff for allegedly falsifying her time sheets; and whether defendants are equitably estopped from relying upon the language in the employment application and personal record card regarding termination without cause or notice. At first blush it would appear that at least some of these fact issues are really issues of law and that some of them are mixed questions of fact and law. However, the parties treated them as issues of fact and, underlying all these listed issues, are numerous factual disputes concerning Tammy’s job performance, the reason for and manner in which she was discharged, the employer’s practice concerning time-keeping procedures, and related matters.

The District Court held as a matter of law that the language of Tammy’s employment application and personal record card barred her claims in this action, thus rendering the fact issues listed in the pretrial order irrelevant.

In deciding this appeal we need not further detail the evidence developed in pretrial discovery. The parties concede the existence of numerous fact issues for litigation at trial by approving the content of the pretrial order. These must be resolved to determine whether plaintiff’s claims fall into any of the four exceptions to the right of the at-will employer to discharge its employees. This precludes summary judgment.

Our decision in this appeal turns on the facts peculiar to this case. It is not to be read as a carte blanche to the jury in every wrongful discharge case. The distinguishing characteristics in this case are the agreement by the attorneys that the listed fact issues in the pretrial order “remain to be litigated upon the trial”; the alleged conduct of the employer in discharging its employee for dishonesty consisting of a time-keeping practice that allegedly had been condoned on prior occasions and which allegedly made it difficult, if not impossible, for the discharged employee to secure further employment; and the alleged negligence of the employer. In this case we neither expand the exceptions to the at-will rule nor create jury issues out of thin air, but simply apply Montana precedent to this case.

At the same time we give effect to the employment application and record card. These give the employer the right to fire without cause. They do not give the employer the right to fire for a false cause. If the at-will employer who can fire without cause under the employment contract chooses instead to fire an employee for dishonesty, the discharged employee must be given the opportunity to prove the charge of dishonesty false.

The foregoing limitation on an employer’s right to fire without cause was recently stated by Justice Harrison:

“Employers can still terminate untenured employees at will and without notice. They simply may not do so in bad faith or unfairly without becoming liable for damages.” Crenshaw v. Bozeman Deaconess Hospital, 693 P.2d at 492.

We vacate the summary judgment, dismiss the claim for negligent infliction of emotional distress as having insufficient basis, and remand the balance of the case to the District Court for further proceedings.

MR. JUSTICES HARRISON, SHEEHY AND McDONOUGH concur.

MR. JUSTICE WEBER,

dissenting:

I

The majority has not addressed the key legal issue presented in this case. Where the Sears-Prout written contract is clear and unambiguous, can the covenant of good faith and fair dealing be implied in such a manner as to negate the express contractual terms and allow recovery of tort damages?

The District Court concluded that the plaintiffs claims were precluded as a matter of law because of the clear and unambiguous language of the employment application and personal record card. On appeal, the majority reverses the District Court, concluding that there are issues of fact which preclude the granting of summary judgment. To reach that conclusion, it is necessary to ignore the terms of the written contract because those terms would preclude a factual inquiry into Sears’ termination of Tammy Prout. The majority opinion implies that the terms of Sears’ employment contract can be disregarded by a court of law. The majority has also implied that the employment at-will statute has no significance here. I do not agree with such a result. For that reason, I believe that it is necessary to critically examine the Montana cases and to compare our analysis of the law with that of other jurisdictions.

II

In the 1500’s, the English common law presumed that an employment contract with an annual salary computation was for a one year term. In the early 19th century, American courts borrowed the English rule, concluding that the rule was consistent with the predominant master-servant employment relationships of that time.

Then, in apparent response to economic changes sweeping the country, American courts abandoned the English rule and adopted the employment-at-will doctrine. This became the common law doctrine generally followed in the United States. Under that doctrine an employer was free to fire an employee hired for an indefinite term for good cause, no cause, or even for cause morally wrong, without being guilty of legal wrong. See generally, Wagonseller v. Scottsdale Memorial Hospital (1985), 147 Ariz. 370, 710 P.2d 1025.

In 1895 Montana enacted its termination of at-will statute providing:

“An employment having no specified term may be terminated at the will of either party on notice to the other . . . [with exceptions not here applicable]”

That section was adopted from the Field Civil Code, and has remained essentially unchanged until the 1987 enactment of the Wrongful Discharge from Employment Act, codified as §§ 39-2-901 to 914, MCA. The facts here preceded the enactment of that Act, which therefore does not apply in this case.

As pointed out in Wagonseller, the trend in the United States has been to create exceptions to the at-will employment doctrine with the result that the employer’s unlimited discretion to discharge at will has been limited. As pointed out in the majority opinion, most jurisdictions including Montana recognize an exception based on the employer’s violation of public policy. Several jurisdictions have recognized an exception based on an implied-in-fact promise of employment for a specified term. Other jurisdictions have recognized an exception where there is an implied-in-law contract term known as the implied covenant of good faith and fair dealing.

California has been one of the leading jurisdictions recognizing both an implied-in-fact contract to discharge only for good cause (See, Pugh v. See’s Candies, Inc. (1981), 116 Cal.App.3d 311, 171 Cal.Rptr. 917), and the implied covenant of good faith and fair dealing in employment contracts (See, Cleary v. American Airlines, Inc. (1980), 111 Cal.App.3d 443, 168 Cal.Rptr. 722). The court in Cleary held that an employer’s breach of the covenant would support an employee’s action in either tort or contract. That theory was adopted in a number of other appellate court decisions of the state of California. California reversed that position by its Supreme Court decision dated December 19, 1988, Foley v. Interactive Data Corp., (1988), 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373.

In Foley the majority made a detailed review of cases in California and elsewhere. In a similar way the dissents carefully reviewed the contrary positions in detail. Foley is an excellent case through which to study the development of law in this entire area. The California Supreme Court concluded that an action based upon the implied covenant of good faith and fair dealing was an action upon contract and that tort damages were not recoverable. The Court considered the application of bad faith insurance cases to the employment context and stated:

“In our view, the underlying problem in the line of cases relied on by plaintiff lies in the decisions’ uncritical incorporation of the insurance model into the employment context, without careful consideration of the fundamental policies underlying the development of tort and contract law in general or of significant differences between the insurer/insured and employer/employee relationships. When a court enforces the implied covenant it is in essence acting to protect ‘the interest in having promises performed’ (Prosser, Law of Torts (4th ed. 1971) p. 613) — the traditional realm of a contract action — rather than to protect some general duty to society which the law places on an employer without regard to the substance of its contractual obligations to its employee . . . The covenant of good faith is read into contracts in order to protect the express covenants or promise of the contract, not to protect some general public policy interest not directly tied to the contract’s purposes. The insurance cases thus were a major departure from traditional principles of contract law.”

254 Cal.Rptr. at 231, 765 P.2d at 393. I agree with the foregoing analysis and with the conclusion reached by the Court:

“We therefore conclude that the employment relationship is not sufficiently similar to that of insurer and insured to warrant judicial extension of the proposed additional tort remedies in view of the countervailing concerns about economic policy and stability, the traditional separation of tort and contract law, and finally, the numerous protections against improper terminations already afforded employees.”

254 Cal.Rptr. at 234, 765 P.2d at 396. After its careful review of the numerous California appellate decisions holding to the contrary, the California Supreme Court then reached the following holding:

“. . . as to his cause of action for tortuous breach of the implied covenant of good faith and fair dealing, we hold that tort remedies are not available for breach of the implied covenant in an employment contract to employees who allege they have been discharged in violation of the covenant. (Emphasis supplied.)”

254 Cal.Rptr. at 239, 765 P.2d at 401. As will more fully appear in this dissent, I agree with the holding of the California Court. California joined the majority of jurisdictions in the United States which have either expressly rejected the notion of tort damages in such cases or impliedly done so by rejecting the covenant in employment at-will contracts. Under the majority opinion in this case, Montana remains one of the few, if not the only jurisdiction, which would allow recovery of tort damages for breach of implied covenant. I conclude that such a result is inconsistent with the general principles of contract law.

Ill

As I review the cases of other states and compare them to Montana’s cases, I believe it is essential to reanalyze our position in previous cases with regard to the covenant of good faith and fair dealing and the right of recovery in tort.

In Gates v. Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063, (Gates I) the majority concluded that the employee entered into an employment contract terminable at will; the employer later promulgated a handbook of personnel policies with termination procedures; the employer presumably sought to secure an orderly, cooperative and loyal work force by these uniform policies; the employee then developed the peace of mind associated with job security; and if the employer failed to follow its own policies, the peace of mind of its employees was shattered. We therefore said:

“We hold that a covenant of good faith and fair dealing was implied in the employment contract of the appellant. There remains a genuine issue of material fact which precludes summary judgment, i.e. whether the respondent failed to afford appellant the process required and if so, whether the respondent thereby breached the covenant of good faith and fair dealing.”

638 P.2d at 1067. The summary judgment was reversed and the case was remanded to the lower court.

As I review this case, I find some contradictions in the opinion. We stated that the employee handbook was not a part of the plaintiffs employment contract when she was hired and could not have been a modification of her contract because there was no new and independent consideration. We also stated that an employee handbook distributed after the employee is hired does not become a part of the employee’s contract. These statements seem inconsistent with the holding that “a covenant of good faith and fair dealing was implied in the employment contract.” We will further discuss the question of whether or not a covenant implied in the contract is in some manner contractual in nature.

In Gates v. Life of Montana Ins. Co. (1983), 205 Mont. 304, 668 P.2d 213, (Gates II), the majority again considered the same case and concluded that the jury verdict in favor of the plaintiff for $1,891 in compensatory damages and $50,000 in punitive damages should be affirmed. The majority referred to Lipinski v. Title Insurance Co. (1982), 202 Mont. 1, 655 P.2d 970, in which this Court held that punitive damages could be assessed for a bad faith insurance practice in the absence of a statutory provision. The Gates II majority further explained that an action for breach of an implied covenant of fair dealing at first blush may sound both in contract and in tort, but that the duty arises out of the employment relationship and yet exists apart from and in addition to any terms agreed to by the parties. The majority stated that the duty is much like the duty to act in good faith in discharging insurance contractual obligations and that such a duty is imposed by operation of law and its breach should find a remedy in tort. The majority referred to a 1906 Indiana case as authority. Without other significant authority the majority concluded:

“We hold that § 27-1-221, MCA, [the section which provides that in any action ‘not arising from contract’ where the defendant has been guilty of oppression, fraud, or malice, the jury may give exemplary or punitive damages] only exempts breach of contract actions from its provisions. Breach of the duty owed to deal fairly and in good faith in the employment relationship is a tort for which punitive damages can be recovered if defendant’s conduct is sufficiently culpable.”

668 P.2d at 215.

This is a key holding which I believe should be reexamined. As pointed out by Justice Gulbrandson in his dissent to Gates II, by allowing punitive damages the majority approved an independent tort of bad faith in at-will employment contracts whereas all other jurisdictions do so only when the determination violates public policy. In my own dissent I pointed out that Gates II was an action for the breach of the covenant of good faith and fair dealing, arising from the contract from which that covenant is implied. I pointed out that § 27-1-221, MCA, allowed punitive damages in any action not arising from contract. I suggested that it seemed clear that the breach of the contractual obligation did not justify an award of punitive damages under the express terms of the statute.

It is not appropriate in dissent to review all of the cases which have considered these theories. However, I do refer to Stark v. Circle K Corp. (Mont. 1988), [230 Mont. 468,] 751 P.2d 162, 45 St.Rep. 371. While I joined in that opinion, as I again review the matter, I question the following conclusions reached in Stark: that the covenant is implied as a matter of law based on the public policy of this state; that it does not depend on contractual terms for its existence; that the covenant of good faith and fair dealing is not subject to contractual waiver, express or implied; and that the duty exists apart from and in addition to any terms agreed to by the parties. It is important to consider the evidence which was before the Court in Stark as compared to the present case. It is true that in Stark there was a provision by which the employee agreed that he could be dismissed with or without cause. However, there were extensive provisions adopted by the employer including a policy guide with regard to termination, which Stark’s supervisor admitted was the policy guide which applied to the termination of Stark. That guide, of course, contained many provisions with regard to the manner of termination and the just cause requirement. That should be distinguished from the present case where there is no evidence that Sears issued any similar employer provisions with regard to either just cause or termination.

As I review the cases from other states, and consider both Stark and the present case, I conclude that the type of action in both Montana cases more properly should be described as one for the breach of “an implied-in-fact contract” as described in detail in Foley. I approve of the California analysis in Foley which pointed out that such implied-in-fact contract terms ordinarily stand on equal footing with express terms; and concluded there is no analytical reason why an employee’s promises to render services or his actual rendition of services may not support an employer’s promise to refrain from arbitrary dismissal. The California court noted that permitting proof of and reliance on implied-in-fact contract terms does not nullify the at-will rule, it merely treats such contracts in a manner in keeping with general contract law. I agree with the conclusion of the California court which found no sound reason to exempt the employment relationship from the ordinary rules of contract interpretations which permit proof of implied terms. As a result, I conclude in both Stark and the present case that a more detailed analysis leads to a conclusion that the covenant of good faith is a part of the implied-in-fact contract and should be treated as are other contract cases. It then logically follows that tort damages are not recoverable.

In our analysis of the law, we should also consider the law previously adopted in Montana as it may apply to the present case. In Keith v. Kottas (1946), 119 Mont. 98, 172 P.2d 306, we quoted from 12 Am.Jur., p. 505, which stated that there cannot be an express and an implied contract for the same thing existing at the same time so that no agreement can be implied where there is an express one existing. The Keith case has been subsequently cited in Weston v. Montana State Highway Commission (1981), 186 Mont. 46, 606 P.2d 150 and McNulty v. Bewley Corporation (1979), 182 Mont. 260, 596 P.2d 474. This same theory is more clearly restated in 17 Am.Jur.2d 649 as follows:

“Intention or meaning in a contract may be manifested or conveyed either expressly or impliedly, and it is fundamental that that which is plainly or necessarily implied in the language of a contract is as much a part of it as that which is expressed .... Therefore, whatever may fairly be implied from the terms or nature of an instrument is, in the eyes of the law, contained in it.”

In addition, this authority states at 17 Am.Jur.2d 652:

“No meaning, terms, or conditions can be implied which are inconsistent with the expressed provisions. Expressed stipulations cannot, in general, be set aside or varied by implied promises. In other words, a promise or covenant is not implied where there is an express written contract provision covering it.”

Clearly this contradiction between the theory of an implied covenant and the existing written contract provision should be considered. Here we have a clear and unambiguous express contract which negatives the idea of an implied covenant. Both Foley and Wagon-seller point out that many jurisdictions in consideration of the Sears form of contract have refused to allow any form of implied covenant.

I would therefore conclude that the covenant of good faith and fair dealing in Montana is an implied-in-fact portion of the contract itself which is subject to general contract analysis under the law of Montana. I would also conclude that any violation of such an implied-in-fact covenant allows recovery only of contract damages and that punitive damages are not recoverable.

IV

In the present case, the District Court concluded that the plaintiffs claims were precluded as a matter of law by the language of the contract because that language in clear and unequivocal terms notified the plaintiff that her employment could be terminated at any time and for any reason, and therefore defeated the claims asserted by the plaintiff. The majority has chosen not to address this fundamental legal issue, instead returning the case to the lower court because of the claimed presence of material issues of fact precluding summary judgment. I disagree with that procedure.

Here we have facts which are significantly different from Gates I or Stark. In both of those cases there had been extensive conduct by the employer from which the covenant of good faith properly could be implied. Here, there is no evidence of conduct of that nature on the part of the employer. In addition, we have the specific contractual limitation which provides that no representative of Sears other than the president or vice president has any authority to modify the written contract which allows termination with or without notice, at any time. Neither Gates I nor Stark had a similar contract provision. Here Prout agrees that there was no modification of the written contract by the authorized officers of Sears. Under the facts presented for consideration at summary judgment, I do not conclude there is a material issue of ultimate fact which has been presented by the plaintiff.

In accordance with the Foley analysis, I would add that there has been no violation of public policy which justifies a tort theory of recovery. I would therefore conclude that the District Court should be affirmed because Prout’s claims are precluded as a matter of law by the language of the contract between the employer and the employee, and because of the absence of any violation of public policy.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON concur in the foregoing dissent.

AMENDMENT TO DISSENT WHICH IS PART OF OPINION IN ENTITLED CAUSE DATED AND FILED APRIL 27, 1989

MR. JUSTICE WEBER,

amending the dissent:

Subsequent to this opinion, Sears filed a petition for rehearing. In that petition, Sears argues that the majority’s emphasis on factual issues contained in the pretrial order is erroneous. This is because the interpretation of the pretrial order had not been suggested by either party, was not considered by the District Court in granting summary judgment, and is a matter which first appears in the majority opinion as the basis for reversal.

The basic issue presented to the District Court and to this Court on appeal was whether the language of the employment contract and the employee record card, without evidence of modification, precluded the plaintiffs claims as a matter of law so that summary judgment was proper? Based on the evidence before it, the District Court concluded that the plaintiff’s claims were precluded as a matter of law and that no material issues of fact existed which would render a granting of summary judgment improper. A review of the materials before the court reveals no facts alleged by the plaintiff that she had developed any sense of job security or that her at-will employment contract had been modified in any way, either expressly or impliedly. The contested facts regarding Tammy Prout’s conduct, her treatment, or Sears’ timekeeping policies were contained in the pretrial order and were expressly reserved pending the motion for summary judgment. I conclude that it was improper for this Court to have ignored the basic inquiry as to whether plaintiff’s claims were precluded as a matter of law, and to focus instead on factual issues in the pretrial order which were secondary to the pending motion. Whether Sears is entitled to a rehearing on the matter is governed by Rule 34, M.R.App.P.

Rule 34(2), M.R.App.P., provides that a party is entitled to a rehearing if it can show that the Court has overlooked any questions decisive of this case. By deciding the propriety of summary judgment based upon factual issues presented in the pretrial order which were understood to be reserved pending the motion, the majority has indeed overlooked the basic inquiry in this case: whether the plaintiff’s claims were precluded by the at-will employment contract which she signed, which remained unmodified, and to which there had been no factual allegations of job security. Had the majority squarely addressed this issue, I do not see how it could have reached the result in this opinion.

I would grant Sears’ petition for rehearing and allow consideration of this case without interpreting the pretrial order. The basic inquiry as to whether plaintiff’s claims are precluded as a matter of law should be addressed in deciding whether summary judgment was proper.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON join in the foregoing amendment to the dissent.


author: MR. JUSTICE SHEEHY

text:
    JON CONTWAY, Plaintiff and Appellant, v. SHERIFF MIKE CAMP, Sheriff of Phillips County; Deputy Sheriff Jim Maxi, a Deputy Sheriff of Phillips County; Sheriff Barry Michelotti, Sheriff of Cascade County; Antonia Marra, a former Deputy County Attorney of Cascade County; Cascade County; and Phillips County, Defendants and Respondents.
    No. 88-390.
    Submitted on Briefs Dec. 16, 1988.
    Decided Feb. 16, 1989.
    768 P.2d 1377.

      Thomas P. Meissner, Lewistown, for plaintiff and appellant.
    John C. McKeon, Co. Atty., Malta, Patrick L. Paul, Co. Atty., Steven M. Hudspeth, Deputy Co. Atty., Grfeat Falls, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Jon Contway, appeals from an order of dismissal under Rule 12(b)(6), M.R.Civ.P., of the District Court of the Eighth Judicial District, County of Cascade, dismissing, with prejudice, his amended complaint against all respondents.

Jon Contway was married to Patricia Contway on January 6, 1978. On August 8, 1986, while going through dissolution proceedings, Contway signed a separation agreement with Patricia awarding her custody of their three minor children, subject to plaintiff’s right of visitation. The separation agreement was integrated into the final divorce decree of October 14, 1986.

On August 27, 1986, appellant took the children from the State of Montana, in violation of their separation agreement. On September 10, 1986, the State filed a criminal information against appellant on the ground of custodial interference, a felony. A warrant for his arrest was issued by the district judge and bail on the warrant was set at $10,000.

Approximately five months later, on January 15, 1987, appellant returned to Malta, Montana, and left the children at the local office of Family Services there. On that same day, defendant Sheriff Jim Maxie of Phillips County arrested the appellant pursuant to the outstanding warrant. Prior to and subsequent to arresting appellant, Sheriff Maxie consulted with Cascade County Sheriff’s Department to verify that a valid warrant was still in existence there. Sheriff Maxie made these inquiries to insure that his arrest of Contway was lawful. Contway had informed the sheriff that the arrest would be improper because he had transferred custody of his children to the Montana Department of Family Services. Cascade County refused to cancel the valid arrest warrant and appellant was arrested by Phillips County officials and placed in custody on January 15, 1987. On January 16,1987, Cascade County officials went to Malta, picked up the appellant, and brought him into custody in Cascade County. The appellant remained in custody there until January 22, 1987, when the criminal information against Contway was dismissed after the children had been returned to the lawful custody of their mother and appellant had written and signed a stipulation stating that the children had been “returned to the custody of Patricia Contway in accordance with 45-5-304 (1985).” Based on that stipulation and appellant’s motion to dismiss dated January 21, 1987, the felony charge was dismissed on January 22, 1987, and Contway was released from custody.

Contway then brought an action against the respondents alleging that his “arrest and false imprisonment were contrary to law.” In his amended complaint, appellant alleged that at the time of arrest and imprisonment, he was a candidate for legislative office for the State of Montana; and appellant alleged in his original complaint that such wrongful arrest and false imprisonment damaged his reputation and, as a consequence, damaged his political race. In addition, at the time of his arrest and imprisonment, appellant was starting a consulting business in Great Falls, Montana, and he alleged that due to the wrongful arrest and imprisonment his business opportunities were curtailed and the business never got started.

That action was dismissed at the District Court level on a Rule 12(b)(6), M.R.Civ.P. motion and he now appeals to this Court.

The issue on appeal is whether the District Court properly dismissed the plaintiff’s amended complaint.

Section 45-5-304, MCA, states:

“Custodial Interference. (1) A person commits the offense of custodial interference if, knowing that he has no legal right to do so:

“(a) he takes, entices, or withholds from lawful custody any child, incompetent person, or other person entrusted by authority of law to the custody of another person or institution;

“(b) prior to the entry of a court order determining custodial rights, he takes, entices or withholds any child from the other parent where the action manifests a purpose to substantially deprive that parent of parental rights; or

“(c) he is one of two persons who has joint custody of a child under a court order and he takes, entices, or withholds the child from the other where the action manifests a purpose to substantially deprive the other parent of parental rights.

“(2) A person convicted of the offense of custodial interference shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.

“(3) A person who has not left the state does not commit an offense under this section if he voluntarily returns such person to lawful custody prior to arraignment. A person who has left the state does not commit an offense under this section if he voluntarily returns such person to lawful custody prior to the arrest. (Emphasis added.)”

Appellant asserts that as a consequence of the language of § 45-5-304(3), MCA, he should not have been arrested after he returned the children to “lawful custody” of Family Services. Respondents insist that his arrest was valid under the statute because returning the children to the local office of Family Services (then SRS) was not a return to “lawful custody” as called for by the statute. They assert that “lawful custody” is custody awarded by the decree and Contway could only have avoided arrest by returning the children to the custody of their mother, to whom custody was awarded by the court.

Appellant argues that whether or not the warrant was legally and validly issued is irrelevant and that the validity of the warrant “makes no difference” because of the language found in § 45-5-304, MCA: “[a] person who has left the state does not commit an offense under this section [custodial interference] if he voluntarily returns such person to lawful custody prior to arrest.” Appellant argues that even if it is presumed that the warrant was validly issued, the respondents’ action in serving the warrant and arresting him constituted a basis for an action against the respondents because Contway had obeyed the statute by returning the children to the custody of Family Services. Contway argues that returning the children to Family Services is returning them to “lawful custody” before arrest as required by the statute.

The respondents argue that § 45-5-304(3), MCA, is a defense to a conviction for custodial interference if a criminal defendant raises and proves the defense as in any other affirmative defense. Respondents recognize that the statute does not state that subsection (3) is a defense to an arrest, as opposed to a conviction, but posit that “the Legislature could have stated as such,” and that the more reasonable construction of subsection (3) is that it is likely any other affirmative defense which imposes a burden of proof upon the defendant and not upon the state.

The words of this statute prohibit the taking of a child from “lawful custody” and permit a noncustodial parent who has left the state to be free of committing custodial interference if he voluntarily returns the child to “lawful custody” prior to arrest. The words “lawful custody” are of common usage and are sufficiently plain and precise to put any reasonable person on notice concerning what conduct is prohibited. Appellant attempted to thwart the court decree by turning the children over to Family Services which was not the lawful custodian named in the decree.

We hold that lawful custody in marital dissolution proceedings is that custody awarded by the court. A district court in the circumstances of this case has jurisdiction to make a child custody determination. Section 40-4-211, MCA; Wilson v. Wilson (1980), 186 Mont. 290, 607 P.2d 539. An individual cannot return children to the custody of a legal entity of his choice. He must return them to the entity granted lawful custody by the court in dissolution proceedings.

The legislature was cautious in providing a means by which a noncustodial parent may return children to the custodial parent and avoid penal sanctions. This statute was enacted to maintain parental custody against all unlawful interruption, even if a child is a willing, undeceived participant in the attack on the parental interest. Section 45-5-304, MCA, Criminal Law Commission comments.

As to the state’s argument that section (3) is a defense to a conviction rather than an arrest, we note that, the statute formerly allowed the conduct to be excused if the person taken was returned before trial for the offense commenced. In 1979 the legislature amended the statute and added subsection (3) which provides that a person does not commit the offense of custodial interference if he returns the individual taken to lawful custody prior to arraignment or, in the case of a person who has left the state, prior to arrest.

The district court judge properly applied the law in response to the respondents’ motion to dismiss under Rule 12(b)(6), M.R.Civ.P. On a motion to dismiss the court takes the allegations of the plaintiff to be true and construes the allegation in a light most favorable to the plaintiff. Mogan v. City of Harlem (Mont. 1987), [227 Mont. 435,] 739 P.2d 491, 44 St.Rep. 1212; Wilson v. Taylor (Mont. 1981), [___ Mont. ___,] 634 P.2d 1180, 38 St.Rep. 1040. The court will then grant the motion only if it appears beyond any doubt that the plaintiff can prove no set of facts which would entitle him to relief. Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324; Kinion v. Design Systems, Inc. (1982), 197 Mont. 177, 641 P.2d 472.

The respondents’ arrest of Contway was a valid arrest under a valid warrant as a result of Contway’s attempt to frustrate the directive of the divorce decree by releasing the children to the custody of a state agency rather than to the custody decreed by the court.

For the foregoing reasons, the District Court’s decision is affirmed as to all respondents.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.


author: MR. JUSTICE McDONOUGH

text:
    NORTHWEST POLYMERIC, INC., Deirdre Caughlin and Laura Lee Dunlap, Trustees of the Estate of Northwest Polymeric, Inc., Bankrupt; and Robert C. Kelly, Patrick Kelly and Shane Kelly, Plaintiffs and Appellants, v. FARMERS STATE BANK and First National Montana Bank of Missoula, and W.A. Groff and Ralph G. McCoy, and John Doe and Ralph Roe, Defendants and Respondents.
    No. 88-473.
    Submitted on Briefs Jan. 19, 1989.
    Decided Feb. 16, 1989.
    768 P.2d 873.

      R. Lewis Brown, Jr. and David L. Holland, Butte, for plaintiffs and appellants.
    Larry Persson, Hamilton, James A. Robischon, Kalispell, Garlington, Lohn & Robinson, Sherman V. Lohn, Missoula, for defendants and respondents.
   MR. JUSTICE McDONOUGH

This appeal from the Fourth Judicial District, Missoula County, involves the alleged breach of an agreement to provide financing. The lower court granted summary judgment to respondent, First National Bank of Missoula (First National), holding that appellant, Northwest Polymeric, Inc. (Northwest),'failed to come forward with facts establishing that First National could be held liable for damages from the alleged breach. We affirm.

Northwest bid and received a Department of Defense (DOD) contract to manufacture combat helmets. The DOD required that Northwest submit a letter confirming credit for financing. Farmers State Bank of Victor (Farmers), provided the DOD a letter stating Farmers, with the participation of First National, would provide financing. Neither bank provided financing, and Northwest brought this suit seeking both tort and contract damages.

First National argued that the District Court should grant its motion for summary judgment because no contract existed between Northwest and First National. First National further argued that no agency relationship existed between Farmers and First National which bound First National for Farmers’ representations.

Northwest conceded that First National did not enter an explicit agreement to finance Northwest, but contended that Farmers acted as First National’s agent when it sent the letter to the DOD stating First National would participate in financing for the contract. No evidence from discovery disclosed that First National authorized the representation. However, discovery revealed that First National had considered participating, and that Robert Burke, President of First National, knew about the letter from Farmers. Burke deposed that he phoned W. A. Groff, President of Farmers, and informed Groff that First National would make no commitment to participate in the loan.

Northwest contends that the District Court erred in granting summary judgment for First National because: (1) Farmers’ letter bound First National, (2) Farmers had apparent authority to bind First National, (3) Montana law estops First National from denying its obligation to participate in the loan.

Northwest asserts that § 28-10-403, MCA, controls this case and mandates the conclusion that the District Court erred. The statute reads:

“Ostensible authority defined. Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.”

Section 28-10-403, MCA (emphasis added). Northwest cites several cases where lack of ordinary care on the part of the principal established the agent’s authority. See, Audit Services v. Elmo Road Corp. (1978), 175 Mont. 533, 575 P.2d 77; Coover v. Davis (1941), 112 Mont. 605, 121 P.2d 985; Lindblom v. Employers’ Liability Assurance Corporation (1930), 88 Mont. 488, 295 P. 1007.

The facts in this case distinguish it from the case law cited by Northwest. In Audit Services the alleged principal, a corporation, held out the alleged agent as its corporate manager, and thus the party claiming agency reasonably believed authority existed for the manager to enter agreements on behalf of the corporation. Audit Services, 575 P.2d at 81. The ostensible agency in Coover also sprung from the act of the principal in holding out the agent as having authority to contract for the principal. Coover, 121 P.2d at 988. Lindblom involved dealings between a claimant for workers’ compensation, a local insurance agency, and an employers’ insurance carrier. The carrier claimed the failure of the claimant to notify the carrier during the period required by statute barred the claim. The claimant responded that notification of the local agency estopped the carrier from claiming the defense. This Court held that evidence supported the conclusion that the carrier clothed the local agency with authority for acting on the claim, and thus Montana law es-topped the carrier from claiming lack of agency. Lindblom, 295 P. at 1011.

Here, Northwest can only claim that First National should have done more than notify Farmers they would not participate. The lower court concluded that the controlling law mandated summary judgment for First National because ostensible authority cannot be proved by the declarations of the agent whose statements are sought to be charged to the principal. Exchange State Bank v. Occident Elevator Co. (1933), 95 Mont. 78, 89 24 P.2d 126, 130. We agree with the lower court’s reasoning.

Cases exist where principals failed to exercise ordinary care in clarifying the lack of a grant of authority to non-employee middlemen in continuing dealings between the middlemen and the third party claiming ostensible agency. See, Butler Manufacturing v. J & L Implement (1975), 167 Mont. 519, 540 P.2d 962; Powers Manufacturing Leon Jacobs Enterprises (1985), 216 Mont. 407, 701 P.2d 1377. Generally, ostensible agency may be established by omissions as well as by commissions. 3 Am. Jur. 2d Agency § 79 (1986). However, the failure to disclaim authority asserted by an agent usually concerns cases where an agent attempts to extend existing authority by his or her representations to a third party. In such a case, the principal may fail to exercise ordinary care in disclaiming the authority claimed by the agent. 3 Am. Jur. 2d Agency § 79 (1986).

Northwest can claim no explicit or implicit grant of authority from First National to Farmers justifying reliance on statements by Farmers. Northwest fails to demonstrate any course of dealing between the parties where Farmers acted for First National. Under these circumstances, we agree with the District Court that no facts support an inference of any grant of authority from First National to Farmers.

Northwest also argues that First National’s silence estops it from denying that it agreed to finance Northwest. There exists here no silence amounting to a representation or concealment of material facts, and thus no estoppel claim. See, Sweet v. Colburn School Supply (1982), 196 Mont. 367, 639 P.2d 521; Northwest Potato Sales v. Beck (1984), 208 Mont. 310, 678 P.2d 1138.

District courts properly grant motions for summary judgment where no material fact questions exist, and in light of the substantive principles of law involved, the established facts entitle the movant to judgment as a matter of law. Fleming v. Fleming Farms Inc. (Mont. 1986), [231 Mont. 237,] 717 P.2d 1103, 1106, 43 St.Rep. 776, 779. The substantive principles of law concerning establishment of an ostensible agency and estoppel under the agreed facts mandated the lower court’s decision.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and GULBRANDSON concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JERRY R. WIMAN, Defendant and Appellant.
    No. 88-180.
    Submitted on Briefs Dec. 2, 1988.
    Decided Feb. 17, 1989.
    769 P.2d 1200.

      Larry Jent, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, Robert F.W. Smith, Asst. Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Marty Lambert, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Jerry Wiman, defendant, appeals from a judgment convicting him of felony sexual assault. Wiman was found guilty in a jury trial before the Eighteenth Judicial District Court, Gallatin County. We affirm.

Wiman raises the following two issues on appeal:

(1) whether Wiman was deprived of the right to a speedy trial; and,

(2) whether the prosecutor improperly commented on Wiman’s failure to testify.

On December 10, 1986, an information was filed charging the appellant with one count of sexual assault, a felony, in violation of § 45-5-502(1), MCA. A jury trial began on April 28, 1987, and concluded on April 30, 1987. The jury was unable to reach a verdict and the presiding judge declared a mistrial. The Gallatin County Attorney then asked that the case be reset for trial. Trial was reset for July 20, 1987, and continued until September 1, 1987. The reason for this continuance was the absence from the state of two key witnesses for the prosecution.

On August 13, 1987, District Judge Thomas Olson recused himself from presiding in this case and District Judge Douglas Harkin assumed jurisdiction of the case.

On August 25, 1987, appellant filed a motion for peremptory substitution of Judge Harkin.

On September 17, 1987, District Judge Roy Rodeghiero assumed jurisdiction of the case.

On November 17, 1987, a hearing was held on defendant’s motion to dismiss for denial of speedy trial. Evidence was presented to the court and attorneys argued the motion. The court, ruling from the bench, denied Wiman’s motion to dismiss.

On November 17, 1987, the second jury trial began. On November 19, 1987, the jury found Wiman guilty of felony sexual assault. On January 12, 1988, the court sentenced Wiman to ten years in the Montana State Prison. The Court then entered an order setting Wiman free on bail pending this appeal.

I

The first issue raised on appeal is whether the appellant was deprived of the right to a speedy trial.

Any person accused of a crime is guaranteed the fundamental right to a speedy trial by the Sixth Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365. “The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. ‘[T]he essential ingredient is orderly expedition and not mere speed.’” United States v. Marion (1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (citing Smith v. United States (1959), 360 U.S. 1, 10, 795 S.Ct. 991, 997, 3 L.Ed.2d 1041).

In speedy trial determinations, a factor to be considered is the length of the delay in getting to trial. State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341; State v. Harvey (1979), 184 Mont. 423, 603 P.2d 661. However, there is no need to examine other factors unless there has been some delay which is deemed presumptively prejudicial. The other factors we refer to are the factors enunciated in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. In analyzing the validity of a claim of lack of speedy trial, the Court investigates and balances the four factors set out in Barker:

“Length of delay, the reason for the delay, the defendant’s assertion of his right [to a speedy trial], and prejudice to the defendant.”

Length of delay is of primary importance. Unless it is sufficiently long to be deemed presumptively prejudicial to the defendant, there is no need to consider the other factors. What length will be deemed presumptively prejudicial depends on the facts in each individual case. State v. Robbins (1985), 218 Mont. 107, 708 P2d 227, 42 St.Rep. 1440; State v. Worden (1980), 188 Mont. 94, 611 P.2d 185. There is no need to determine other factors unless there has been some delay which is deemed presumptively prejudicial. Armstrong, 616 2d at 351.

When appellant’s second trial began on November 17, 1987, 201 days had passed since the conclusion of the first trial. The chronology is as follows:

Event Date

Information filed 12/10/86

First Jury Trial 4/28/81-4/30/87

Court resets trial for 7/20/87 5/28/87

State moves for Continuance, and Court resets trial for 9/1/87 7/13/87

Judge Olson excuses himself from presiding in this case, Judge Harkin assumes jurisdiction 8/13/87

Defendant moves for substitution of Judge Harkin 8/25/87

Judge Rodeghiero assumes jurisdiction & sets trial for 11/17/87 9/17/87

Defendant’s jury trial begins 11/17/87

Defendant’s jury trial concludes 11/19/87

The State of Montana asserts that it is responsible for 123 days of the delay, the time period between May 1, 1987 and September 1, 1987 and that the appellant is responsible for 78 days of the delay for the time period of September 1, 1987, when the trial was necessarily vacated by Wiman’s substitution of Judge Harkin, until November 17, 1987, the date the new district judge set for the trial.

Wiman asserts that the delay is 342 days by computing the delay from the date of the arraignment December 16, 1986, to the second trial date set for November 17, 1987. We do not agree. In State v. Sanders (1973), 163 Mont. 209, 214, 516 P.2d 372, 375, this Court adopted the rule from the American Bar Association Project on Minimum Standards for Criminal Justice:

“The time for trial should commence running . . .

“(c) if the defendant is to be tried again following a mistrial, . . . from the date of the mistrial, order granting a new trial, or remand.” Therefore, in calculating the delay in this appeal we begin by counting the day after the first trial.

We agree with the State that the length of the delay caused by the State is not sufficiently long to trigger further inquiry. Therefore, this Court will not consider the other factors set out in Barker.

The appellant’s second trial began 201 days after the conclusion of his first two-day trial on April 30, 1987, but the date was reset for September 1, 1987, when the Gallatin County Attorney moved for a continuance because two key state witnesses would be out of the state at the time set for trial. These witnesses were to give vital testimony attesting to the credibility of the nine-year-old assault victim in this case. Since defendant’s counsel had put the victim’s credibility in question, the date became impracticable for the State’s case without these witnesses.

On August 13, 1987, two weeks before the second trial was to begin, Judge Olson excused himself from presiding in this case and Judge Harkin immediately assumed jurisdiction for the trial that was to begin on September 1, 1987. However, a further delay resulted when on August 25, 1987, six days before the trial date, the defendant moved for a substitution of Judge Harkin. On August 31, 1987, Judge Olson signed the order calling in Honorable Roy C. Rodeghiero and sent out an invitation to him to assume jurisdiction. On September 17, 1987, Judge Rodeghiero signed and mailed the assumption of jurisdiction which arrived at the Gallatin County Clerk and Recorder’s Office on September 18, 1987, District Judge Rodeghiero put the stalled legal machinery back into motion by setting a trial for November 17, 1987. This gave the district judge two months to acquaint himself with the record and issues of the Wiman case, and give the parties time to reschedule briefs and witnesses. Therefore, the two months between the assumption of jurisdiction by Judge Rodeghiero and the date set for the new trial is reasonable under the circumstances.

The defendant is responsible for the time between August 25,1987, when he moved for a substitution of Judge Harkin, and November 17, 1987, when the new trial, set by Judge Rodeghiero began. The trial date of September 1, 1987, would have been adhered to but for the substitution of Judge Harkin at defendant’s request. Defendant’s motions caused 82 days of a 201 day delay. The State caused 119 days of delay because of unavailability of key witnesses.

We have focused our decision on this 119 days. This amount of time is not long enough to be deemed presumptively prejudicial.

Wiman was free on bail during this time and the length of his delay was much shorter than in Armstrong, where the delay was three and one-half years from the time of Armstrong’s original conviction to his second conviction. In addition, Armstrong was incarcerated during this delay. Wiman was not.

The length of delay is the “trigger” factor to the speedy trial inquiry. There is no need to examine other factors unless some delay presumptively prejudicial has occurred. Chavez, 691 P.2d at 1369; Harvey, 603 P.2d at 667. The delay here, 119 days, is not enough to trigger the speedy trial inquiry. Compare, Armstrong, three and one-half year delay, 108 days attributable to the state, with Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322 (seven-month delay).

The speedy trial right is primarily designed to protect the accused from oppressive tactics of the prosecution. Barker, 407 U.S. at 529, 92 S.Ct. at 2191. The 119-day delay in this cause is not sufficiently long to be deemed presumptively prejudicial, nor was the delay caused by oppressive tactics by the State. There is no showing by defendant that the State intentionally delayed to gain some tactical advantage over appellants or to harass them. Vacation of this order would be required if it were shown that, “the pre-indictment delay in this case caused substantial prejudice to appellant's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Marion, 404 U.S. at 324, 92 S.Ct. at 465. We, therefore, hold that the appellant’s right to a speedy trial was not violated.

II

The second issue before this Court is whether the prosecutor improperly commented in jury argument on the defendant’s failure to testify.

Appellant contends that the Gallatin County Attorney’s summation contained several comments on the appellant’s failure to testify and requires a new trial. It is a settled rule that the prosecutor may not direct attention to the failure of a defendant charged with a criminal offense to testify. State v. Gladue (1984), 208 Mont. 134, 677 P.2d 1028; United States v. Republic Steel Corp. (67th Cir. 1974), 491 F.2d 315; Knowles v. United States (10th Cir. 1955), 224 F.2d 168. However, in Republic Steel, the Court explains that Knowles held:

“It is concedely improper and reversible error to comment on the failure of a defendant to testify in his own behalf, and the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. 224 F.2d 168, 170.”

Republic Steel also directs:

“That Government counsel may direct the jury’s attention to the fact that the evidence against the defendant is uncontradicted, especially when the facts in issue could be controverted by persons other than the defendant.”

491 F.2d at 315. (citing Doty v. United States (10th Cir. 1968), 416 F.2d 887, vacated on other grounds sub nom., Epps v. United States (1971), 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542).

In the course of argument to the jury, the deputy county attorney made the following argument:

. . Detective Lessley asks, ‘How does she learn all these things?’ And here is what the defendant told Detective Lessley on October 3: ‘She learned them from the neighbor’s kids, one of whom is five and one of whom is eight and the mother, their mother, who lives next door, she learned them from seven-year-olds at school; she learned them from Playboy magazine; she learned them from watching R-rated movies; she learned them from watching X-rated movies; and she learned them from her own brother.’ Then he says — quoted by Detective Lessley — ‘Most of what I say is true’ not all of it, ‘Most of what I say is true, but that’s one thing I wouldn’t lie about.’

“Did defendant say he thought she was coached, thought that maybe somebody’s telling her to say these things? (Whereon Mr. Lambert indicates in the negative.)

“(Defense counsel) Objection, Your Honor, comment on non-testimony by Defendant.

“THE COURT: Alright, Mr. Lambert, stay away from that area.

“MR. LAMBERT; Yes, Your Honor.”

In the defendant’s brief on appeal, defendant’s counsel points to several other instances in the jury argument by the prosecuting attorney, where the statement was made that the evidence was uncontradicted. It is difficult to tell from the record whether the possibility of contradiction would come from other witnesses, or from the defendant himself. At any rate, when those arguments were being made, no objection was made by defense counsel and the District Court was not given an opportunity, if the necessity existed to admonish the jury to ignore the argument, or to give a curative instruction nor was any motion made for mistrial.

There is no showing by appellant here that there is a reasonable possibility that the comments complained of might have contributed to the conviction. There was no objection made at trial, no request for an in-chambers objection to the language used in prosecutor’s summation and no motion for a mistrial. Section 46-20-104, MCA, provides that failure to make a timely objection during trial constitutes a waiver of the objection.

It is significant that defendant made only one objection during the prosecutor’s summation. That objection was about prosecutor’s reference to the defendant’s accusation during the second trial that the victim had been coached. The prosecutor reminded the jury that the defendant did not say the victim had been coached when defendant was initially interrogated by Detective Lessley of the Bozeman Police Department. We believe that this was not a comment on defendant’s refusal to take the stand.

Although use against a criminal defendant of silence maintained after receipt of governmental assurances is barred by Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 224, 49 L.Ed.2d 91, this directive does not apply to language that merely inquires into prior inconsistent statements. Such comment makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. Anderson v. Charles (1980), 447 U.S. 404, 408, 100 S.Ct. 2180, 2188, 65 L.Ed.2d 222, 226. As to the subject matter of his statements the defendant has not remained silent at all. Wiman was given the Miranda warnings and he did waive his rights and chose not to remain silent when interrogated by Detective Lessley. What he said may be and was used against him in the prosecutor’s summation. Prosecutor’s objected to remark does not refer to Wiman’s exercise of his right to remain silent. Rather, it asks appellant’s counsel, who impeached the young victim with her testimony in the first trial, and alleged that she was being coached by comparing her testimony with her inconsistent statements in the second trial, why the appellant didn’t tell Detective Lessley that in the initial interrogation the girl was coached as his counsel was now asserting. Prosecutor’s summation remarks were not designed to draw attention to appellant’s silence, but to remind the jury that appellant voluntarily spoke to Detective Lessley after receiving Miranda warnings and that his counsel’s present assertion about coaching was inconsistent with defendant’s prior statements.

After reading the entire closing statement, we find only this one objection. We find no objection to any other comments made by the prosecution. Therefore, we find no error in regard to the prosecutor’s comments in light of the fact that the trial judge did all that he was asked to do when he sustained objection and warned the prosecutor to “stay away from that area.” Read in context, it is clear that those comments were not intended to comment on defendant’s failure to testify in his own behalf.

If defendant’s counsel believed that these comments were directed at the defendant’s failure to testify it was incumbent upon him to make an objection to the comments. As a general rule, this Court will not entertain issues not raised at trial. State v. Wilkins (Mont. 1987), [229 Mont. 78,] 746 P.2d 588, 44 St.Rep. 1794; State v. [St.]Goddard (Mont. 1987), [226 Mont. 158,] 734 P.2d 680, 44 St.Rep. 551.

Finding no error, we conclude that the conviction of Jerry Wiman should be and is affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, McDONOUGH and WEBER concur.