author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD DARRELL LINDEMAN, Defendant and Appellant.
    No. 97-022.
    Submitted on Briefs June 5, 1997.
    Decided November 4, 1997.
    54 St.Rep. 1156.
    948 P.2d 221.
    285 Mont. 292.

      For Appellant: John E. Smith, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Boh Slomski, Sanders County Attorney, Thompson Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Twentieth Judicial District Court, Sanders County. On September 25, 1996, the District Court entered judgment revoking Defendant Lindeman’s suspended sentence and imposing the full sentence of four concurrent ten-year terms in the Montana State Prison. From this judgment Defendant Lindeman appeals. We affirm in part, reverse in part, and remand.

We frame the issues raised on appeal as follows:

1. Was the District Court’s order modifying Lindeman’s condition of probation res judicata on its subsequent order revoking Lindeman’s suspended sentence?

2. Did the District Court abuse its discretion when it revoked Lindeman’s suspended sentence?

3. Did the District Court err in reserving its determination of Lindeman’s parole eligibility?

BACKGROUND

In September 1989, Richard Darrell Lindeman (Lindeman) was arrested and charged with two counts of felony sexual assault and two counts of felony incest of his two minor stepdaughters. On October 10, 1989, Lindeman pleaded guilty, and on December 19, 1989, the District Court sentenced him to four concurrent ten-year sentences. All but 30 days were suspended, provided Lindeman abided by certain terms and conditions of probation. Among those terms, Lindeman was prohibited from having unsupervised contact with minors and was required to complete an approved sex offender treatment program.

Lindeman began treatment in an approved program known as SABER (Sexual Abusive Behavior Evaluation and Recovery), which was run by Dr. Michael Scolatti in Missoula, Montana. Lindeman attended the weekly therapy sessions for about one and a half years.

In March 1991, Dr. Scolatti terminated Lindeman from the program, because Lindeman, who was approximately 40, had become sexually involved with a woman who was about 20 years his junior. The program had a rule that those undergoing treatment were not allowed to have a sexual relationship with anyone whose age differed by more than 5 years. Even though the woman was of legal age, Dr. Scolatti considered a sexual relationship to perpetuate the cycle of abuse. Dr. Scolatti testified that Lindeman had originally assured him that the relationship was platonic, but when the woman became pregnant, it was evident Lindeman had been lying. Dr. Scolatti refused to continue working with him. He did, however, recommend another treatment program rim by Andy Hudak, called the Northwest Family Recovery Program.

Lindeman eventually married the young woman, and they had a daughter. Instead of entering the treatment program recommended by Dr. Scolatti, he began counseling sessions in April 1991 with Dr. Jack Oakwright in Sandpoint, Idaho. Lindeman’s probation officer at that time was aware of those sessions.

Subsequently, Lindeman received a new probation officer, who also knew that Lindeman was receiving treatment from Dr. Oakwright. At no time did that second probation officer disapprove of the treatment. On January 6,1992, Dr. Oakwright wrote the probation officer a letter stating that Lindeman had “graduated,” although Lindeman’s wife and he were continuing with additional counseling sessions. The probation officer does not recall ever telling Lindeman that he had successfully completed the required sex offender treatment program. It was his opinion that because Lindeman was still receiving some counseling, he was still in the treatment mode. Additionally, the probation officer testified that at some point he had expected to receive a copy of an official graduation letter from Dr. Oakwright confirming that Lindeman had indeed successfully completed sex offender treatment. The written confirmation was never received.

In July 1992, Lindeman and his wife moved to Great Falls, Montana, and he again received a new probation officer. This third probation officer insisted that Lindeman either move out of his home or make arrangements for his daughter to live elsewhere. Lindeman’s wife was attending school, and the probation officer was concerned that Lindeman would be spending significant time alone with his daughter, in violation of the condition of probation that he not have unsupervised contact with minors.

Additionally, this probation officer reviewed Lindeman’s file and saw no evidence that Lindeman had completed any sex offender treatment program. He noticed that Lindeman had attended a few brief sessions with Dr. Oakwright, whom he contacted. Dr. Oakwright informed him that Lindeman had not completed treatment and recommended that Lindeman continue couples therapy with someone who was knowledgeable of sex offender issues. In Dr. Oakwright’s opinion, Lindeman had a “significant sexual addiction which ... survived throughout his treatment.”

Accordingly, Lindeman was referred to Ron Silvers at the Montana Sex Offenders Treatment Association. Silvers met with Lindeman in April 1993. After an evaluation, Silvers found he was not amenable to outpatient treatment. He testified that Lindeman had a poor attitude and refused to sign medical releases to enable him to obtain records from Dr. Scolatti. He also found Lindeman’s behavior to be alarming. Lindeman denied that he had a problem and did not want treatment. He sought an evaluation only because he wanted Silvers to certify that he posed no risk to his daughter or other minor children. Silvers refused to accept Lindeman into treatment.

Lindeman did not enter any treatment program and did not move out of his home to protect his daughter. Instead, in May 1993, just ten months after moving to Great Falls, he moved to Plains, Montana. His earlier second probation officer became his probation officer once again.

On August 19, 1993, Lindeman requested the District Court to modify his rules of probation to allow him unsupervised contact with minors. He represented to the District Court that he had successfully completed the required sex offender treatment program. Additionally, he had passed a polygraph examination with questions formulated to reveal any sex crimes committed since his conviction, any inappropriate contact with his daughter, or any thought processes common among offenders towards his infant daughter. At this point, his current probation officer apparently believed that Lindeman had successfully completed a sex offender treatment program and concurred with Lindeman’s request with one change. He requested that Lindeman be allowed unsupervised contact only with his two-year old daughter rather than all minors. On September 23, 1993, the District Court modified the condition to allow Lindeman unsupervised contact with his daughter. It further ordered that Lindeman be subjected to routine polygraph examinations. In all other respects, the original terms of the probation remained unchanged.

In August 1993, Lindeman moved again, this time to Kola, Montana. Once there, two or three probation officers were assigned to his case for various time periods. In October, 1995, he received his latest probation officer, who reviewed his file. She found no evidence that Lindeman had completed the required sex offender treatment program.

That probation officer also discovered that although Dr. Oakwright had provided Lindeman with some treatment, Dr. Oakwright was not certified to provide sex offender counseling as required by the terms of the probation. He was not a member of the National Association for Treatment of Sexual Abusers, the Montana Sex Offenders Treatment Association, or any other equivalent state program. Indeed, Dr. Oakwright admitted to the probation officer that he was not qualified to provide sex offender treatment services.

Additionally, the counseling Dr. Oakwright provided did not meet the standards of the state and national organizations. Lindeman had attended only ten one-hour sessions, and those were frequently accompanied by his wife. Lindeman had attended one or two additional treatment sessions. He attended no group therapy sessions.

The probation officer further discovered that Lindeman had not completed the treatment that even Dr. Oakwright had suggested. With regard to the 1992 letter stating that Lindeman had “graduated,” Dr. Oakwright explained that Lindeman had only completed an “educational treatment program” and nothing more. Lindeman had quit counseling without giving Dr. Oakwright any notice. It remained Dr. Oakwright’s opinion that Lindeman required further counseling.

Thus, on January 3, 1996, the probation officer held an intervention hearing to give Lindeman another chance to comply with the conditions of his probation. As a result of that hearing Lindeman was ordered to enter and successfully complete an approved sex offender treatment program. He was further ordered to contact an approved therapist by January 15, 1996. He once again was referred to Andy Hudak of the Northwest Family Recovery Program.

Lindeman contacted Hudak by January 15, as required. Hudak sent him an evaluation packet to complete and return. Hudak had agreed to allow Lindeman to pay a reduced fee of $150.00. Moreover, Hudak gave him several months, until April 1, 1996, to pay. In spite of this, Lindeman failed to complete and return the packet, and he failed to pay the fee. Hudak testified that if money was a problem, he would have worked out a solution with Lindeman. However, Lindeman never communicated to him that money was an issue, and Lindeman showed no motivation for treatment. By letter dated May 13, 1996, Hudak notified his probation officer that Lindeman had failed to follow through on the screening process for entering the treatment program.

On May 23, 1996, the State filed a petition to revoke Lindeman’s suspended sentence. On September 25, 1996, the District Court entered judgment finding that Lindeman had violated the condition of his suspended sentence by failing to complete sex offender treatment with a certified specialist approved by the probation office. It therefore revoked the suspended sentence and imposed the full four ten-year concurrent sentences at the Montana State Prison without eligibility for parole until he successfully completed the sex offender treatment program. On November 12,1996, the District Court denied Lindeman’s motion to reconsider. Lindeman now appeals.

ISSUE ONE

Was the District Court’s order modifying Lindeman’s condition of probation res judicata on its subsequent order revoking Lindeman’s suspended sentence?

On September 23, 1993, the District Court entered an order modifying the terms of Lindeman’s probation to allow him unsupervised contact with his minor daughter. In so doing, it stated that Lindeman had completed a sex offender treatment program. Specifically, the order provided:

The Court finding that the Defendant has successfully completed the sex offender treatment program, and thereafter passed a polygraph examination administered by Richard Stotts, and there being no objection from the State of Montana;
IT IS HEREBY ORDERED that Defendant’s condition of probation No. 3 contained in the Judgment of this Court, dated December 15, 1989, is stricken; and substituted in its place is the following condition:
The Defendant may have unsupervised contact with his minor child. The Defendant will be subject to polygraph examination at the request of his probation officer. If the polygraph examination results show any deception by Defendant regarding inappropriate conduct with minors, the Defendant shall not have any further unsupervised contact with his minor child and shall be subject to a revocation proceeding before this Court.
In all other respects, the Judgment of this Court, dated December 15, 1989 shall remain unchanged.

(Emphasis added.)

Lindeman argues that the foregoing constitutes a conclusive finding that he had completed the required sex offender treatment program, and that the order actually removed that condition of probation. He contends that in the subsequent revocation proceeding, the District Court was bound by this “finding.” According to his line of reasoning, the doctrine of res judicata prohibited the District Court from revoking his suspended sentence on the basis that he had failed to complete the treatment program.

“[R]es judicata is a final judgment which, when rendered on the merits, is an absolute bar to a subsequent action between the same parties or those in privity with them, upon the same claim or demand.” Scott v. Scott (1997), [283 Mont. 169], 939 P.2d 998, 1001 (citing Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197). It prevents a party from re-litigating a matter that the party has already had the opportunity to litigate. Hollister v. Forsythe (1996), 277 Mont. 23, 27, 918 P.2d 665, 667 (citing Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161). A claim is res judicata when four criteria are met: (1) the parties or their privies are the same; (2) the subject matter of the claim is the same; (3) the issues are the same and relate to the same subject matter; and (4) the capacities of the persons are the same in reference to the subject matter and the issues. Hollister, 918 P.2d at 667 (citing Loney, 905 P.2d at 161).

In this case, the issues in the two matters differed. The sole issue raised, litigated, and decided in the motion to modify the conditions of Lindeman’s suspended sentence was whether his third condition of probation should be altered to allow him unsupervised contact with minors. Whether or not he had completed a sex offender treatment program, in compliance with the second condition, was not before the court. Lindeman did not request the District Court to remove that condition, and the parties did not litigate whether that condition had been satisfied. The District Court heard no testimony regarding whether Lindeman ever completed treatment or whether Dr. Oakwright was a certified sex offender treatment specialist.

The District Court’s sole decision was to allow Lindeman unsupervised contact with his minor daughter so long as he passed polygraph examinations on the issue of his sexual conduct towards minors. The court did not remove the condition that he complete treatment. Indeed, it specifically held in the last sentence of its order that all other conditions of probation remained unchanged.

Although the District Court mistakenly stated that Lindeman had completed treatment, and Lindeman’s misrepresentations to the court in this regard must have carried influence, such a “finding” was not necessary to the court’s decision. Rather, the District Court had the authority to modify the condition to allow him unsupervised contact with his daughter “at any time” upon notice to the probation officer. Section 46-23-1011(4), MCA. In this case the District Court was apparently confident that a polygraph examination would adequately monitor Lindeman. In short, the District Court’s statement that he had completed treatment does not constitute a conclusive, litigated finding.

Lindeman cites State v. Black (1990), 245 Mont. 39, 798 P.2d 530 and State v. Perry (1988), 232 Mont. 455, 758 P.2d 268 in support of his argument. Both are distinguishable. In Black, this Court held that the issue of whether the defendant had been denied ineffective assistance of counsel was barred by the doctrines of res judicata and law of the case, because the District Court had already rendered a decision on that issue which we reviewed and affirmed. Black, 798 P.2d at 533. In Black, unlike this case, an evidentiary hearing had been held before the District Court, and the issue was fully litigated. Black, 798 P.2d at 533.

In Perry, the defendant had argued that he was entitled to a new trial because the State had failed to provide him with exculpatory evidence. This Court held that the issue was res judicata because the defendant could have, but failed, to raise the issue on his initial appeal. Perry, 758 P.2d at 274. Unlike Perry, the issue as to whether or not Lindeman’s sentence should be revoked for failing to complete a treatment program could not have been decided by the District Court when ruling on the earlier motion. Whether or not to modify the conditions of Lindeman’s probation was before the District Court solely by way of Lindeman’s motion, and the only issue Lindeman presented was whether he should be allowed unsupervised contact with minors. The only method by which the State could have challenged whether Lindeman had violated the condition of probation and request that his sentence be revoked was by filing a separate petition pursuant to § 46-18-203, MCA. In such a case, the defendant is entitled to a hearing, with two exceptions not relevant here. Section 46-18-203(5), MCA. The State could not have tacked those issues on to Lindeman’s earlier motion, which did not even require a full hearing under § 46-23-1011(4), MCA.

The State did subsequently file such a petition to revoke and the matter went to a hearing. The issue as to whether Lindeman had completed the treatment program was then litigated and decided for the first time. We hold that the prior order modifying Lindeman’s condition of probation was not res judicata on the District Court’s subsequent order revoking his suspended sentence.

ISSUE TWO

Did the District Court abuse its discretion when it revoked Lindeman’s suspended sentence?

It is within the District Court’s discretionary power to revoke a suspended sentence when a defendant has violated the terms and conditions of his suspended sentence. Section 46-18-203(7), MCA, provides:

If the court finds that the defendant has violated the terms and conditions of the suspended or deferred sentence, the court may:
(c) revoke the suspension of sentence and require the defendant to serve either the sentence imposed or any lesser sentence;

Section 46-23-1013(2), MCA, similarly provides:

If the violation [of a condition of probation] is established, the court may continue to revoke the probation or suspension of sentence and may require him to serve the sentence imposed or any lesser sentence and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.

The standard for revoking a suspended sentence requires that the District Court be reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. State v. Butler (1995), 272 Mont. 286, 289, 900 P.2d 908, 910 (citing State v. Lundquist (1992), 251 Mont. 329, 331, 825 P.2d 204, 206.) A violation of the terms and conditions of probation need only be proved by a preponderance of the evidence. Section 46-18-203(6), MCA. We review the District Court’s decision to determine whether it abused its discretion. Butler, 900 P.2d at 910 (citing Lundquist, 825 P.2d at 206.)

The District Court revoked Lindeman’s suspended sentence because it found that he failed to complete a sex offender treatment program with a certified specialist as required by the second condition of his probation:

2) The Defendant shall continue to participate in sex offender treatment approved by the Probation department, and that he continue in the same treatment until he has been satisfactorily discharged by a certified treatment specialist and approved by the Probation Department.

Lindeman argues that the District Court abused its discretion when it revoked his suspended sentence because it failed to consider several “unique factors” including the following: (1) he successfully completed a sex offender treatment program with the approval of his probation officers; (2) he cannot afford to complete another sex offender treatment program; (3) he has a terminal, rare form of asthma; (4) he is a benefit to the community because he has devoted himself to a men’s church group; (5) the State made no effort for over seven years after he left Dr. Scolatti’s program to have him removed from the community; and (6) he has consistently followed all other rules of his probation and has committed no crime subsequent to his conviction. We examine each of these in turn.

(1) Alleged Completion of Treatment Program

Although couched as merely the first “factor,” Lindeman is actually challenging the District Court’s finding that he failed to successfully complete the required sex offender treatment program. But the evidence in support of the court’s finding is overwhelming and, for the most part, uncontroverted.

First, Lindeman does not dispute the fact that he failed to complete the SABER program run by Dr. Scolatti. Dr. Scolatti terminated him when he violated the program’s rule regarding a sexual relationship with a younger person.

Second, although he received some treatment from Dr. Oakwright, Dr. Oakwright was not a certified treatment specialist as required by the condition of probation. He was not a member of the National Association for Treatment of Sexual Abusers, the Montana Sex Offenders Treatment Association, or any other equivalent state program. Indeed, Dr. Oakwright himself admitted to one of his probation officers that he was not qualified to treat sex offenders. Lindeman points to no evidence that Dr. Oakwright was a certified specialist or otherwise qualified to treat sex offenders.

Additionally, the treatment Dr. Oakwright actually provided was insufficient. It did not meet the standards of the state and national programs, and Dr. Oakwright had described the treatment as only “educational” in nature. Lindeman attended only ten to twelve couples counseling sessions with his wife, and he attended no group therapy sessions. The experts, including Dr. Scolatti, Andy Hudak and Ron Silvers testified that the only type of sex offender treatment that meets Montana and national standards involves group therapy with other sex offenders. Educational counseling in the presence of a wife does not qualify and is ineffective. Additionally, treatment can take years. For example, Silvers testified that his program lasts an average of three to five years. Lindeman points to no evidence that indicates that the treatment he received from Dr. Oakwright was sufficient.

Finally, Dr. Oakwright himself stated that Lindeman had not successfully completed even the treatment that he recommended. Although there was some confusion over a letter he had written stating that Lindeman had “graduated,” Dr. Oakwright explained to subsequent probation officers, that Lindeman had dropped out his program without notice and that he had not completed treatment. He had only completed a so-called educational treatment program and required more counseling. In his opinion, Lindeman had a “significant sexual addiction which ... survived throughout his treatment.”

Lindeman received no additional treatment from any other source. We hold that the District Court’s finding that Lindeman violated the condition of his probation is supported by the preponderance of the evidence.

(2) Alleged Inability To Pay For Treatment

Lindeman’s protests that he cannot afford treatment are equally without merit. At no time was he denied treatment for monetary reasons. Although he still owed some money to Dr. Scolatti when treatment was terminated, he was not terminated from the program for that reason. Similarly, Silvers denied him entrance to his program not for monetary reasons, but because Lindeman was uncooperative and unwilling to undergo treatment. Lindeman refused to even sign a medical release to enable Silvers to obtain records from Dr. Scolatti. Evidence in the record indicated that in the past Silver accepted patients who could not pay. In this case, however, Lindeman never approached him or anyone regarding an alleged inability to pay.

Finally, in January 1996, Hudak had agreed to allow Lindeman to undergo an evaluation for a reduced fee of $150.00. He also gave Lindeman three months to pay. Lindeman never indicated that paying this amount was out of his financial reach. The evidence suggests that Lindeman was simply unwilling to undergo treatment.

(3) Alleged Terminal Illness

Lindeman argues that the District Court failed to adequately consider the fact that he has a terminal form of asthma. Although there is some evidence that he has a medical condition which might shorten his life expectancy, there is no evidence in the record that the condition is terminal or that it prevented him from attending an approved sex offender therapy program.

(4) Alleged Membership In Prayer Group

Lindeman next contends that he belongs to a men’s prayer group and is therefore a benefit to his community. This, however, is no substitute for the required therapy. It does not excuse the requirement that he successfully complete an approved sex offender treatment program. It does not justify his failure to take steps to enter Hudak’s program in 1996.

(5) State’s Delay In Filing Petition To Revoke Suspended Sentence

Lindeman complains that the State made no effort for over seven years after Dr. Scolatti terminated him from the SABER program to have him removed from the community. Dr. Scolatti terminated Lindeman from the program in March 1991, and it was not until January 1996 that the State held an intervention hearing and ordered Lindeman once again to seek treatment. In May 1996, the State filed the petition to revoke. Although it was thus five years, and not seven years as asserted by Lindeman, Lindeman is nonetheless correct in noting that the State delayed for several years before taking action.

There is no doubt but that Lindeman fell through the cracks in the system at nearly every turn. The first occurred when Lindeman began treatment with Dr. Oakwright. His probation officer at the time neither verified whether Dr. Oakwright was a certified treatment specialist as required by the condition of probation, nor ensured that the program was approved by the probation department. A second major mistake occurred when a different probation officer concurred with Lindeman’s request to modify the terms of probation to allow him unsupervised contact with his then two-year old daughter. The probation officer apparently failed to determine whether in fact Lindeman had actually completed an approved sex offender treatment program by a certified specialist. Although Lindeman went through a string of probation officers, only two picked up on the fact that he had not completed treatment. In 1993, one probation officer sought not only to protect Lindeman’s daughter from unsupervised contact with Lindeman, but attempted to get Lindeman back into treatment. But Lindeman once again slipped through the cracks when he moved. Either this information was not communicated to the next probation officer or the next probation officer did not follow through on the information. In either case, there again was a breakdown in the system. It was not until late 1995 that his latest probation officer again discovered Lindeman’s failure to complete treatment.

When the State finally discovered this fact, Lindeman’s suspended sentence was not immediately revoked. Rather, Lindeman was given yet one more chance to enter an approved treatment program. Despite this new opportunity, he failed to so much as complete the entrance evaluation, once again demonstrating his hostility and unwillingness to undergo treatment. This time, however, the State did not delay. It took immediate steps to have him removed from the community.

Regardless of the State’s original lengthy delay, the fact remains that Lindeman was an untreated sex offender who posed a danger to the community and in particular to his young daughter. He refused to get treatment in violation of the condition of his probation, in spite of being given a third chance in 1996. The District Court did not abuse its discretion by revoking his suspended sentence notwithstanding the State’s original delay.

(6) Allegedly Following All Other Conditions of Probation

Sixth, Lindeman argues that he has consistently followed all other rules of his probation and has committed no crime subsequent to his conviction. At the revocation hearing, the State presented evidence that Lindeman had violated other conditions of probation by possessing firearms in his basement and by allowing a teenage boy to live in his home. The District Court made no findings of fact regarding those two alleged violations. We need not address whether or not Lindeman in fact followed all other rules of his probation. The fact remains that he already violated one condition of probation when he refused to enter and complete a treatment program. We have held in the past that “no violation of a probation agreement is minor.” Butler, 900 P.2d at 911 (citing State v. Rogers (1989), 239 Mont. 327, 330, 779 P.2d 927, 929). We hold that even without other violations, the District Court did not abuse its discretion in revoking his suspended sentence based upon the one violation.

Lindeman nonetheless insists that the facts in his case are analogous to those in State v. Lundquist (1992), 251 Mont. 329, 825 P.2d 204, and that based upon that case this Court should reverse the District Court. In Lundquist, the defendant had been terminated from his sex offender treatment program because he had not paid the outstanding balance of $1,260.00 owed his therapist. Lundquist, 825 P.2d at 205. Six months after his termination from the program, the therapist provided a second reason for his termination and stated that the defendant had not participated in the written portion of the program. Lundquist, 825 P.2d at 206. At the revocation hearing, the therapist also testified that he originally wondered whether Lundquist was psychotic, because the defendant claimed to have undergone a religious metamorphosis and spoke to angels who guided him. Eventually the therapist concluded that Lundquist was not psychotic, but was simply following his system of religious beliefs. Lundquist, 825 P.2d at 206.

Other evidence, indicated that the defendant in Lundquist had attempted to comply with the condition of his suspended sentence. Prior to his termination from the program, the defendant had faithfully attended seventy-six group therapy sessions and thirteen individual sessions — each of which required a 150-mile round trip from Lundquist’s residence in Philipsburg, Montana, to the therapist in Missoula, Montana. Lundquist, 825 P.2d at 205. Although he had an outstanding balance for the counseling sessions, he had already paid the therapist a total of $2,450 in counseling fees. Lundquist, 825 P.2d at 205. Finally, the therapist testified that the defendant realized that child molestation is bad and that the defendant posed only a low to moderate probability of reoffending. Lundquist, 825 P.2d at 206.

Based upon the facts in that case, we held that the District Court abused its discretion in revoking the suspended sentence. To the extent the District Court based its decision on the defendant’s failure to pay fees, we held that it was unreasonable in light of his low income and the fees already paid. Lundquist, 825 P.2d at 206. We noted that the District Court could simply have required the defendant to offer a payment plan or to find another outpatient sex offender treatment program. Lundquist, 825 P.2d at 207. To the extent revocation was based upon the defendant’s religious beliefs, we held that the decision contravened his right to free exercise of religion. Lundquist, 825 P.2d at 206. We further noted that the defendant had complied fully with the terms of his probation and that the State waited six months before taking steps to remove him from the community. Lundquist, 825 P.2d at 206-07.

The facts in Lundquist differ significantly from those in this case. Unlike the defendant in Lundquist, Lindeman was not terminated from the SABER program for either financial or religious reasons. He was terminated because he failed to abide by the program’s rules. Moreover, the defendant in Lundquist posed a low to moderate risk in the community, whereas Dr. Scolatti characterized Lindeman as “one of the most dangerous men” with whom he had ever worked. Finally, in Lundquist, the defendant offered to make a payment plan for readmission to the program or to seek another treatment plan. In this case, Lindeman was unwilling and uncooperative. He insisted to Silvers in 1993 that he did not need treatment and refused to sign a medical release. In 1996 when he was given one last chance to seek treatment from Hudak, he refused. This is not a situation as in Lundquist where the defendant did everything he could to abide by the terms of probation but simply had difficulty paying.

The one fact in this case that is similar to the Lundquist case is the fact that the State waited a significant period of time after he was terminated from the SABER program before taking steps to remove him from the community. However, the State took immediate action in 1996 after Lindeman failed to enter treatment as ordered at his intervention hearing. As we elaborated earlier, the State’s original delay does not justify liberating an untreated sex offender, particularly when the State gave Lindeman yet another opportunity in 1996 to comply.

As we have stated in the past:

The inquiry at any probation revocation hearing is whether the purposes of rehabilitation are being achieved, and whether, by virtue of subsequent criminal conduct or evidence that the defendant’s behavior was not in compliance with the rules and objectives of his probation, the purposes of probation are best served by continued liberty or by incarceration.

State v. Robinson (1980), 190 Mont. 145, 148, 619 P.2d 813, 815 (citation omitted). In this case, the purposes of rehabilitation were not being achieved, and Lindeman had not complied with the rules of his probation. We hold that the District Court did not abuse its discretion when it revoked Lindeman’s suspended sentence.

ISSUE THREE

Did the District Court err in reserving its determination of Lindeman’s parole eligibility?

In its 1989 judgment, the District Court specifically reserved the right under § 46-18-202, MCA, to impose the restriction that Lindeman be ineligible for parole while serving his term, in the event that Lindeman ever violated a condition of probation that resulted in revocation of his suspended sentence. Subsequently, upon revoking Lindeman’s suspended sentence in 1996, the District Court ordered that Lindeman be ineligible for parole until he successfully completed the sex offender treatment program at the Montana State Prison.

Lindeman cites State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, and contends that the District Court lacked statutory authority to reserve the right to restrict his eligibility for parole and later impose the restriction upon revoking the suspended sentence. The State concedes that Finley controls and that the District Court had no such authority. We agree.

When a court revokes the suspended sentence, it has the authority to require the defendant to serve either the sentence imposed or a lesser sentence. It has no authority to impose additional restrictions. Section 46-18-203(7)(c), MCA. The restrictions of Lindeman’s parole eligibility exceed the authority of § 46-18-203(7), MCA.

Furthermore, § 46-18-202, MCA, the statutory provision relied upon by the District Court when reserving the right to impose the restriction, applies only to the original sentence under § 46-18-201, MCA. The District Court has no authority to reserve the right to impose such a restriction upon subsequently revoking the suspended sentence. For that very reason in Finley, we reversed the portion of the court’s judgment that reserved the right to restrict the defendant’s parole eligibility. Finley, 915 P.2d at 222. In this case too, we hold that the District Court erred in reserving its determination of Lindeman’s parole eligibility.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    RICHARD R. SAMSON, et al., Plaintiffs and Appellants, v. STATE OF MONTANA, et al., Defendants and Respondents.
    No. 97-066.
    Submitted on Briefs August 7, 1997.
    Decided November 4, 1997.
    54 St.Rep. 1165.
    948 P.2d 232.
    285 Mont. 310.

      For Appellants: Philip E. Roy, Attorney at Law, Great Falls.
    For Respondents: David W. Woodgerd and Brendan R. Beatty; Special Assistant Attorneys General; Office of Legal Affairs; Department of Revenue; Helena.
   JUSTICE REGNIER

delivered the Opinion of the Court.

In July 1996, plaintiff and appellant Richard Samson and several other Montana property owners and taxpayers (collectively referred to herein as “Taxpayers”) filed a declaratory judgment action with the First Judicial District Court in Lewis and Clark County, against the State of Montana, its Department of Revenue and Attorney General, and all fifty-six Montana Counties (collectively referred to herein as “Department”). The Taxpayers request class certification and seek various forms of relief, including a court-ordered reduction of certain real property appraisals, as well as a partial refund of their 1989, 1990, 1991, and 1992 real property taxes. The Department subsequently moved to dismiss the Taxpayers’ first amended complaint on the grounds that each of their claims is barred by the statute of limitations and on the basis that the complaint fails to state a claim for which relief may be granted. On December 6, 1996, the District Court issued an order granting the Department’s motion to dismiss. It is from that order that the Taxpayers now appeal. For the reasons discussed below, we affirm.

The dispositive issue on appeal is whether the District Court erred in granting the Department’s motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

In 1989, the Montana Legislature modified the State’s real property appraisal system and enacted the stratified sales assessment ratio (SSAR) valuation adjustment, codified at § 15-7-111, MCA. Subsequently, in Department of Revenue v. Barron (1990), 245 Mont. 100, 114-15, 799 P.2d 533, 542, this Court held the SSAR appraisal method, pursuant to which assessments were derived from ratios comparing actual sales prices with existing appraised values, was unconstitutional as applied to residential property in downtown Great Falls. Specifically, we held application of the SSAR violated the Equal Protection requirements of the Fourteenth Amendment to the United States Constitution, and Article II, Section 4, of the Montana Constitution. Barron, 245 Mont. at 115, 799 P.2d at 542. We additionally held application of the SSAR violated the Due Process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Sections 17 and 29, of the Montana Constitution. Barron, 245 Mont. at 115, 799 P.2d at 542.

This Court delayed the effect of its decision in Barron, applying it prospectively after December 31, 1990, and additionally denied relief to those taxpayers who had not administratively appealed their property taxes prior to October 12, 1990. Barron, 245 Mont. at 115, 799 P.2d at 542; Woith v. Cascade County Treasurer (1993), 262 Mont. 170, 172, 864 P.2d 752, 753. In Woith, we clarified that our decision in Barron did not preclude taxpayers who had not filed timely administrative appeals from seeking refunds pursuant to alternative statutory remedies. Woith, 262 Mont. at 172, 864 P.2d at 753.

In 1991, in response to this Court’s decision in Barron, the Montana Legislature passed Senate Bill 412, by which it again amended § 15-7-111, MCA, and thereby altered the SSAR appraisal method and provided a right to appeal adjusted values. See Department of Revenue v. Sheehy (1993), 262 Mont. 104, 106, 862 P.2d 1181, 1183. In Sheehy, however, we held that the provisions of Senate Bill 412 failed to rid the SSAR appraisal system of the constitutional defects identified in Barron. Sheehy, 262 Mont. at 107, 862 P.2d at 1183.

In the instant case, the Taxpayers brought suit on July 3, 1996, alleging they paid real property taxes based on the unconstitutional SSAR method of assessment, but have since received no tax refunds or other relief. The Taxpayers filed their first amended complaint on July 19, 1996, seeking a declaratory judgment pursuant to various Montana statutes. Specifically, the Taxpayers challenge the legality of their property taxes and seek declaratory relief pursuant to §§ 15-1-406 and 27-8-101 through -313, MCA. They additionally attempt to challenge their property tax assessments pursuant to § 15-2-307, MCA (repealed in 1993), and the validity of certain administrative rules pursuant to § 2-4-506, MCA.

The Department responded to the Taxpayers’ amended complaint on August 9, 1996, by way of a motion to dismiss filed pursuant to Rule 12(b), M.R.Civ.R In a December 6, 1996, order, the District Court granted the Department’s motion to dismiss, concluding that each of the Taxpayers’ claims is barred by the applicable statute of limitations or otherwise fails as a matter of law.

STANDARD OF REVIEW

We review de novo a district court’s ruling on a motion to dismiss under Rule 12(b)(6), M.R.Civ.R Gerber v. Commissioner of Ins. of State of Montana (1990), 242 Mont. 369, 370, 786 P.2d 1199, 1200. This Court reviews an appeal from a district court’s order granting a motion to dismiss based on the sufficiency of the complaint. Busch v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339, 1340 (citing Conley v. Gibson (1957), 355 U.S. 41, 45, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84).

In Willson v. Taylor (1981), 194 Mont. 123, 634 P.2d 1180, we recognized that

[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.R, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

Willson, 194 Mont. at 126, 634 P.2d at 1182 (citations omitted).

Thus, “[i]n reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff and take the allegations of the complaint as true.” HKM Associates v. Northwest Pipe Fittings, Inc. (1995), 272 Mont. 187, 191, 900 P.2d 302, 304 (citing Goodman Realty, Inc. v. Monson (1994), 267 Mont. 228, 231, 883 P.2d 121, 123).

Pursuant to this standard of review, this Court will affirm the district court’s dismissal only if we “determine that plaintiff is not entitled to relief under any set of facts which could be proven in support of the claim.” Grove v. Montana Army Nat’l Guard (1994), 264 Mont. 498, 501, 872 P.2d 791, 793 (citing King v. State (1993), 259 Mont. 393, 396, 856 P.2d 954, 955).

The District Court’s determination that the Taxpayers’ complaint failed to state a claim is a conclusion of law. See Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762. This Court’s standard of review of a district court’s conclusion of law is whether the court’s interpretation of the law is correct. Boreen, 267 Mont. at 408, 884 P.2d at 762 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

DISCUSSION

Did the District Court err in granting the Department’s motion to dismiss?

Although the Taxpayers identify no fewer than seventeen claims, and seek eleven forms of relief in their first amended complaint, their central argument is that, for tax years 1989 through 1992, they paid property taxes which were illegally collected, but have yet to receive any refunds or other relief pursuant to our decisions in Barron, Sheehy, and Woith.

The Taxpayers seek declaratory relief pursuant to several Montana statutes, including §§ 15-1-406,27-8-101,15-2-307, and 2-4-506, MCA. In its December 6, 1996, order, the District Court addressed, and in turn dismissed, each of the Taxpayers’ claims, concluding the claims were either barred by the applicable statute of limitations, or otherwise deficient as a matter of law.

A. Declaratory judgment pursuant to § 15-1-406, MCA.

On July 3, 1996, the Taxpayers filed suit pursuant to § 15-1-406, MCA, which provides the method by which an aggrieved taxpayer may seek a declaratory judgment.

The statute pursuant to which the Taxpayers seek declaratory relief specifically states that:

An aggrieved taxpayer may bring a declaratory judgment action in the district court seeking a declaration that:
(a) an administrative rule or method or procedure of assessment or imposition of tax adopted or used by the department of revenue is illegal or improper; or
(b) a tax authorized by the state or one of its subdivisions was illegally or unlawfully imposed or exceeded the taxing authority of the entity imposing that tax.

Section 15-1-406(1), MCA.

In the present case, the Taxpayers have sought to avail themselves of this statute and thereby challenge the legality of real property taxes assessed against them in 1989, 1990, 1991, and 1992. Section 15-1-406(2), MCA, however, contains an express limitations period by which a party must initiate such a declaratory judgment action. Specifically, the statute requires that

[t]he action must be brought within 90 days of the date the notice of the tax due was sent to the taxpayer or, in the case of an assessment covered by the uniform tax review procedure set forth in 15-1-211, within 90 days of the date of the department director’s final decision.

Section 15-1-406(2), MCA.

The present version of § 15-1-406(3), MCA, additionally requires that the taxes subject to challenge “be paid under protest when due as a condition of continuing the action.”

Upon consideration of the Department’s motion to dismiss, the District Court concluded that the Taxpayers had neither brought their action within the applicable ninety-day limitations period, nor paid the challenged taxes under protest. The court thus held the Taxpayers had met neither of the conditions precedent necessary to maintain a declaratory judgment action pursuant to § 15-1-406, MCA, and ordered that claim dismissed.

On appeal, the Taxpayers first assert the District Court erred in applying the present version of § 15-1-406, MCA, rather than its 1991 predecessor. Section 15-1-406, MCA, as it existed in 1991, did not require that taxpayers seeking to avail themselves of the statute’s remedial provisions pay disputed taxes under protest. Not until 1995 did the Montana Legislature add that portion of § 15-1-406, MCA, which requires the payment of taxes under protest. See § 15-1-406(3), MCA.

Because they challenge the legality of taxes imposed upon them from 1989 through 1992, the Taxpayers assert the 1991 version of § 15-1-406, MCA, governs their claim. They accordingly contend the fact that they did not pay the property taxes in question under protest does not preclude them from seeking a declaratory judgment.

Although the 1991 statute did not require payment under protest, it did contain a limitations period similar to that included in the current statute. Specifically, § 15-1-406(2), MCA (1991), required a party challenging the legality of a tax to bring a declaratory judgment action “within 90 days of the imposition of the tax.”

In analyzing the Department’s motion to dismiss, the District Court first applied the current version of § 15-1-406, MCA, but additionally concluded that, even were the 1991 statute controlling, the Taxpayers had clearly failed to initiate their declaratory judgment action “within 90 days of the imposition of the tax.”

As noted above, the Taxpayers seek to challenge the legality of property taxes assessed against them in 1989,1990,1991, and 1992, but they did not initiate the present action until several years later, in July 1996. Whether the present or former version of § 15-1-406, MCA, controls is immaterial to the extent that, pursuant to either statute, the taxpayers had to bring their action within ninety days of “the imposition of the tax” or “the date the notice of the tax due was sent to the taxpayer.” Clearly, the Taxpayers did not initiate the present action until substantially more than ninety days had elapsed following either the imposition of the challenged taxes or the date the notice those taxes were due was sent. Thus, unless properly tolled, the limitations period codified in either the 1991 or 1995 version of § 15-1-406, MCA, effectively bars the Taxpayers’ present challenge.

Indeed, in an attempt to circumvent this obstacle, the Taxpayers argue the statute’s ninety-day limitations period should be tolled in the present case. First, the Taxpayers contend the Department, in collecting and holding their tax money, acted as their fiduciary, thereby tolling the statute of limitations until they received actual knowledge of their right to bring this action. In a related argument, the Taxpayers next assert the limitations period should be tolled because their alleged fiduciary, the Department, failed to notify them of the Barron, Sheehy, and Woith decisions, or to explain the impact of those decisions. Accordingly, they assert the statute of limitations should be tolled until they acquired actual knowledge of their right to bring the present action.

The Taxpayers first argue the Department is their fiduciary, and the statute of limitations codified at § 15-1-406, MCA, is thereby tolled until they received actual knowledge of their right to bring this action. In so arguing, the Taxpayers cite to a string of cases in which various courts have recognized that the existence of a fiduciary or trust relationship may toll the running of an applicable statute of limitations under certain circumstances. See, i.e., Town of Haxtun v. Wangnild (Colo. 1942), 127 P.2d 328, 330 (holding town a trustee of special assessment funds and statute of limitations thus did not begin to run until repudiation of trust); MacMullan v. Kelly (Cal. App. 1912), 124 P. 93, 95 (recognizing “statute of limitations does not begin to run in favor of a defendant chargeable as the trustee of an express trust during the life of the trust”). Although the existence of a fiduciary or trust relationship may toll the running of an applicable statute of limitations period, the District Court concluded that no such relationship exists in the present case.

In its order dismissing the Taxpayers’ complaint, the District Court concluded the Department does not act as a fiduciary of Montana’s taxpayers and, therefore, held the ninety-day statute of limitations codified at § 15-1-406, MCA, presents a valid bar to the present suit. The Taxpayers contend the court erred in so holding, and cite to a number of readily distinguishable cases in support of their proposition that the Department, in collecting and holding tax money, acts as a fiduciary or trustee of Montana’s taxpayers.

For example, the Taxpayers cite to Usibelli Coal Mine v. State of Alaska (Alaska 1996), 921 P.2d 1134, in which a coal lessee appealed a ruling by the Department of Natural Resources that the lessee owed back royalties to the state under noncompetitive coal leases. Usibelli, 921 P.2d at 1138-39. Once in its statement of facts, and once in a subsequent footnote, the court notes that Alaska’s Attorney General advised the Department of Natural Resources that, “pursuant to the state’s fiduciary responsibility under” a “Mental Health Settlement,” it could not forgive certain back royalties owed. Usibelli, 921 P.2d at 1141 and 1150. In Usibelli, the court’s passing reference to a fiduciary responsibility arising from an apparent “Mental Health Settlement” simply does not stand for the Taxpayers’ proposition that the Department in this case, in collecting and holding real property taxes, was acting as a fiduciary or trustee of Montana’s taxpayers.

Having reviewed the cases cited by the Taxpayers, but without embarking on an exhaustive discussion of each one, we conclude that neither Usibelli nor any of the remaining cases relied upon by the Taxpayers offers compelling authority establishing a trust relationship between the State and its taxpayers. Rather, these cases differ substantially from the present case and involve discussion of such varying topics as special improvement districts, municipal bonds, and statutorily prescribed fiduciary duties. See, i.e., In re City of Columbia Falls (Bankr. D. Mont. 1992), 143 B.R. 750, 762 (recognizing special improvement district funds are trust funds); State ex rel. Clark v. Bailey (1935), 99 Mont. 484, 497, 44 P.2d 740, 744 (holding “fund derived from a special levy or one created for a specific purpose is in the hands of municipal officials in trust”); Blackford v. City of Libby (1936), 103 Mont. 272, 282, 62 P.2d 216, 217-18 (holding city becomes trustee on behalf of warrant holders of special improvement district).

Further, as the District Court recognized, the Department may assume an adversarial role against individual taxpayers, contravening the notion that it acts as their fiduciary agent. See, i.e., § 15-8-115, MCA (directing the Department to defend property tax appeals). Thus, having reviewed the record, we hold the District Court correctly concluded the Department, in collecting the taxes at issue, was not acting as the Taxpayers’ fiduciary, and the ninety-day limitations period included in § 15-1-406, MCA, thus expressly precludes their present claim.

Concomitant with the Taxpayers’ assertion that the Department is their fiduciary is their contention that the Department failed to fulfill the obligations of that alleged fiduciary relationship by failing to notify them of the Barron, Sheehy, and Woith decisions or to explain any potential impact those decisions might have had on the Taxpayers’ rights. Accordingly, the Taxpayers contend, the statute of limitations should be tolled until they acquired actual knowledge of their right to bring the present action. In light of our holding that the Department is not in a fiduciary relationship with the taxpayers, we need not address the second prong of the Taxpayers’ argument to the extent it presupposes the existence of such a fiduciary relationship.

To the extent the Taxpayers assert the statute of limitations should be tolled until they acquired actual knowledge of their claim, regardless of any fiduciary relationship, their argument similarly fails. The general rule in Montana is that the statute of limitations begins to run when a party’s claim accrues. Section 27-2-102(2), MCA. Section 27-2-102(1), MCA, explains accrual as follows:

For the purposes of statutes relating to the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action;
(b) an action is commenced when the complaint is filed.

Section 27-2-102(1), MCA.

Section 27-2-102(2), MCA, expressly provides that “[1] ack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.” Even were this Court to determine that the Taxpayers’ claims in the present case accrued as late as 1993 following our decisions in Barron, Sheehy, and Woith, the ninety-day limitations period codified at § 15-1-406, MCA, would present a clear bar to the present action.

Thus, even construing the complaint in the light most favorable to the Taxpayers, and taking as true all allegations of fact, we hold the District Court did not err in concluding the statute of limitations included in § 15-1-406, MCA, bars the Taxpayers’ claim.

B. Declaratory judgment pursuant to § 27-8-101, MCA.

The Taxpayers additionally seek a declaratory judgment pursuant to the Uniform Declaratory Judgments Act, codified at § 27-8-101, MCA, and thereby attempt to challenge certain statutes and administrative rules. The Department moved to dismiss the Taxpayers’ claims brought under the Uniform Declaratory Judgments Act on the basis that § 15-1-406, MCA, specifically precludes use of the Act in actions such as this.

In its December 6, 1996, order, the District Court granted the Department’s motion, concluding that neither this Court’s decision in Woith v. Cascade County Treasurer (1993), 262 Mont. 170, 864 P.2d 752, nor the statutory framework of § 15-1-406, MCA, permits the Taxpayers to proceed under the Uniform Declaratory Judgments Act in the present case.

Section 15-1-406, MCA, pursuant to which the Taxpayers seek declaratory relief, explicitly provides that “[t]he remedy authorized by this section supersedes the Uniform Declaratory Judgments Act established in Title 27, chapter 8,” thereby precluding its use in an action such as this. Section 15-1-406(5), MCA. Nevertheless, the Taxpayers assert they are entitled to seek relief pursuant to the Act.

The Taxpayers argue that this Court’s decision in Woith authorizes them to proceed pursuant to § 27-8-101, MCA. In Woith, we recognized that taxpayers may contest taxes pursuant to alternative statutory remedies. Woith, 262 Mont. at 172, 864 P.2d at 753. Specifically, we held that taxpayers were not prohibited by our decision in Barron from contesting certain tax assessments through the alternative statutory remedies provided for by §§ 15-1-406 through -408 and 15-2-307 through -310, MCA (repealed 1993). Although we held in Woith that taxpayers may contest taxes by way of alternative statutory remedies, we did not dispense with the requirement that they do so in accordance with the requirements contained in those alternative statutes.

As noted above, § 15-1-406, MCA, which governs cases such as this one, specifically supersedes and, therefore, precludes use of the Uniform Declaratory Judgments Act. Section 15-1-406(5), MCA. Thus, the Taxpayers cannot proceed independently under the Uniform Declaratory Judgments Act. However, the Taxpayers argue they are nevertheless entitled to rely on the Act, because, pursuant to our decision in Woith, they may avail themselves of § 15-1-407, MCA, which statute in turn contemplates use of § 27-8-101, MCA. The Taxpayers point to that portion of § 15-1-407, MCA, which provides that “an action pursuant to § 15-1-406 is subject to the provisions of Title 27, chapter 8.”

Although § 15-1-407, MCA, provides that an action under § 15-1-406, MCA, is subject to the provisions of the Uniform Declaratory Judgments Act, it does not provide for an unlimited time within which to bring that action. Here, the Taxpayers missed the ninety-day statutory deadline for initiating their action, and they are accordingly precluded from availing themselves, by way of § 15-1-407, MCA, of the remedial provisions contained in § 27-8-101, MCA.

Based on the foregoing, we hold the District Court did not err in concluding Woith did not authorize the taxpayers to proceed independently under § 27-8-101, MCA, as an alternative statutory remedy in this case. We additionally hold the court correctly concluded that § 15-1-406, MCA, similarly prohibits the Taxpayers from seeking declaratory relief pursuant to the Act. Therefore, the District Court properly dismissed the Taxpayers’ claims brought pursuant to § 27-8-101, MCA.

C. Declaratory judgment pursuant to § 15-2-307, MCA.

The Taxpayers additionally attempt to bring this action for declaratory judgment pursuant to § 15-2-307 through-310, MCA (repealed in 1993). Even assuming the Taxpayers properly assert the present action pursuant to these repealed statutes, we conclude their claims otherwise fail as a matter of law.

Section 15-2-307, MCA, permitted a taxpayer to bring a declaratory judgment action to challenge assessment methods or procedures, and provided no statute of limitations within which such an action had to be commenced. However, the remedy provided for pursuant to § 15-2-309(2), MCA, applied only to those taxes imposed during or after the year of a challenge brought under § 15-2-307, MCA. Section 15-2-309(2), MCA, specifically provided that:

The remedy directed by the district court may apply only to taxes imposed during or after the year the rule or procedure is challenged. The remedy may not apply to the application or implementation of the rule or procedure as it applies to taxes imposed in years prior to the challenge under 15-2-307.

In the present case, the Taxpayers brought suit in 1996 to challenge assessment procedures and the imposition of property taxes in 1989, 1990, 1991, and 1992. Thus, we conclude, as did the District Court below, that § 15-2-309, MCA, clearly prohibited the retroactive relief sought by the Taxpayers in this case. Accordingly, we hold the District Court did not err in dismissing the Taxpayers’ claims for relief brought pursuant to § 15-2-307, MCA.

D. Declaratory judgment pursuant to § 2-4-506, MCA.

Finally, the Taxpayers bring their amended complaint pursuant to § 2-4-506, MCA, which provides for declaratory judgments on the validity or application of administrative rules. Section 2-4-506(1), MCA, specifically provides that:

A rule may be declared invalid or inapplicable in an action for declaratory judgment if it is found that the rule or its threatened application interferes with or impairs or threatens to interfere with or impair the legal rights or privileges of the plaintiff.

Upon consideration of the Department’s motion to dismiss, and following evaluation of the Taxpayers’ complaint, the District Court noted that the Taxpayers refer to administrative rules only three times in their complaint, and “at no time do [they] contend that any of the aforementioned rules are invalid or inapplicable.” Instead, the court observed, “the reference to the aforementioned administrative rules seems to be nothing more than a passing reference.”

Following review of the record, we similarly conclude that neither the facts nor the allegations contained in the Taxpayers’ first amended complaint provide a basis for application of this statute. Accordingly, we hold the District Court did not err in dismissing their complaint insofar as it was premised on § 2-4-506, MCA.

E. Class certification.

The Taxpayers additionally seek to bring this suit as a class action, and accordingly request class certification. Having held, however, that the District Court did not err in dismissing the Taxpayers’ complaint, we need not address the question of whether the Taxpayers are entitled to certification as a class.

Based on the foregoing, we hold the District Court did not err in granting the Department’s motion to dismiss on the basis that the Taxpayers’ claims were either barred by the applicable statutes of limitations, or otherwise deficient as a matter of law.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS C. RICHARDS, Defendant and Appellant.
    No. 97-215.
    Submitted on Briefs October 2, 1997.
    Decided November 4, 1997.
    54 St.Rep. 1172.
    948 P.2d 240.
    285 Mont. 322.

      For Appellant: Bethany F. Schendel, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Micheál S. Wellenstein, Assistant Attorney General; Helena; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Thomas C. Richards appeals from that portion of a sentence and judgment entered by the Eighth Judicial District Court, Cascade County, restricting his access to Cascade County, and from a subsequent order of the court mandating that he pay restitution in the amount of $10,438.05 for counseling costs incurred by one of his victims. We vacate the court’s order that Richards pay $10,438.05 in restitution, and hold we lack jurisdiction to review Richards’ original sentence.

We rephrase the issues presented on appeal as follows:

1. Did the District Court err in ordering that Richards pay restitution in the amount of $10,438.05 for counseling costs incurred by one of his victims?

2. Did the District Court err in restricting Richards from entering Cascade County as a condition of his suspended sentence?

FACTUAL AND PROCEDURAL BACKGROUND

By way of an information filed May 25, 1994, the State charged Richards with two counts of felony criminal endangerment to which he subsequently pled not guilty. On November 9, 1994, the State amended its information to charge Richards with one count of felony assault and one count of misdemeanor assault, in violation of § 45-5-201, MCA. Richards entered a plea of not guilty to each count at his November 21, 1994, arraignment. On February 10, 1995, Richards entered into a plea agreement with the State, and on April 10, 1995, he pled guilty to both counts contained in the amended information.

On May 9, 1995, District Court Judge Robert Goff sentenced Richards to five years in the Montana State Prison with all time suspended on the count of felony assault. With respect to the count of misdemeanor assault, Judge Goff sentenced Richards to six months in the Cascade County Jail, suspending all but the 225 days already served. Judge Goff gave Richards credit for the 225 days already served, and ordered the sentences to run consecutively.

The court imposed a number of conditions upon Richards’ suspended sentence, among which were the following:

1. Defendant shall be restricted from entering Cascade County, Montana. [Condition #9]
2. Defendant shall pay restitution to the Crime Victim’s Compensation Unit in the amount of $4,174.46. [Condition #13]
3. The Defendant shall pay for any future counseling costs of Timi Gilbreath and/or Amanda Gilbreath. [Condition #15]

On August 26,1996, the State filed a motion asking that the court order Richards to pay $10,438.05 in restitution. The amount requested represented the balance due on a bill from Deaconess Medical Center for inpatient psychiatric treatment received by Timi Gilbreath in October 1994. On January 23, 1997, following a hearing on the State’s motion, the court ordered that Richards pay restitution in the amount of $10,438.05, less any amounts previously reimbursed by worker’s compensation insurance by reason of a prior industrial injury to which portions of the bill may have related. On January 31, 1997, the court issued a supplemental order in which it directed that Richards remit his restitution payments to the Clerk of the District Court who was, in turn, to forward them to Deaconess Medical Center.

On February 10,1997, Richards filed his notice of appeal from the court’s January 23, 1997, restitution order and from its January 31, 1997, supplemental order. Richards additionally seeks, in effect, to appeal from that portion of the District Court’s May 9,1995, sentencing order which restricted Richards from entering Cascade County.

ISSUE 1

Did the District Court err in ordering that Richards pay restitution for counseling costs, in the amount of $10,438.05, incurred by one of his victims?

We review the imposition of a sentence “for legality only.” State v. Graves (1995), 272 Mont. 451, 463, 901 P.2d 549, 557. We have held that “[t]he standard of review on sentence legality is whether the district court abused its discretion. Graves, 272 Mont. at 463, 901 P.2d at 557.

On appeal, Richards presents three separate arguments in support of his contention that the District Court erred in ordering him to pay $10,438.05 in restitution. Richards first argues that, in ordering he make additional restitution, the court erroneously modified an otherwise valid sentence. Richards next argues the court erred in imposing the $10,438.05 of restitution because that amount did not reflect pecuniary loss suffered by the victim. Finally, Richards contends the court erred in ordering him to pay restitution to Deaconess Medical Center because it failed to consider his financial resources and future ability to pay.

As noted, Richards first argues the District Court erred in ordering him to pay $ 10,438.05 in restitution on the basis that, having imposed a valid sentence by way of its May 9, 1995, order, the court lacked jurisdiction to subsequently modify that sentence. Indeed, this Court has recognized that “[o]nce a valid sentence has been pronounced, the court imposing that sentence has no jurisdiction to modify it, except as provided by statute.” State v. Fertterer (1993), 260 Mont. 397, 400, 860 P.2d 151, 154. Pursuant to § 46-18-117, MCA, a court may modify or “correct an erroneous sentence or disposition at any time and may correct a sentence imposed in an illegal manner within 120 days after the sentence is imposed or after remand from an appellate court.”

The State, in fact, agrees that, pursuant to Montana law, once a district court pronounces a valid sentence and judgment, it has no jurisdiction to modify that sentence except as provided by law. The State does argue, however, that in ordering Richards to pay restitution to Deaconess Medical Center, the District Court was not modifying the previously imposed sentence, but rather, was adhering to the original intent of the sentencing court which was that Richards make full restitution to his victims.

In support of its argument that the court’s January 23,1997, order regarding restitution did not constitute a modification of Richards’ sentence, the State points to that portion of the presentence investigation report in which Richards stated that: “More than anything else, I wish to make amend[s] for what I’ve done, pay or make restitution, and rebuild my life on its present course.” The State additionally points to that portion of Richards’ testimony at the January 17,1997, hearing in whichhe acknowledged that, at the time of the original sentencing, he had agreed to pay all restitution in this case. Accordingly, the State argues it was the intent of both the sentencing court and Richards himself that he pay all restitution in this case.

The fact remains, however, that the court’s May 9,1995, sentencing order provided only that Richards “pay restitution to the Crime Victim’s Compensation Unit in the amount of $4,174.46” and that he “pay for any future counseling costs of Timi Gilbreath and/or Amanda Gilbreath.” The $10,438.05 bill from Deaconess Medical Center represented charges incurred during an inpatient stay by Timi Gilbreath in the hospital’s psychiatric ward in October 1994. Thus, because the bill was for medical care provided more than six months prior to the court’s May 9, 1995, sentencing order, it clearly did not represent “future counseling costs.” The court’s original sentencing order did not direct payment of the $10,438.05 medical bill, and did not order Richards to pay past, as well as future, counseling costs. Thus, by subsequently ordering Richards to pay that $10,438.05, the court in effect modified its original sentence in this case.

Although the State argues it did not learn of the $10,438.05 bill from Deaconess Medical Center until after the court originally sentenced Richards and was thus unable to submit the bill to the court, that omission does not authorize the court to modify its sentence. The sentence imposed by the court on May 9,1995, was neither erroneous nor imposed in an illegal manner, as contemplated by § 46-18-117, MCA, and the court was thus without jurisdiction to modify it. Accordingly, we hold that, in ordering Richards to pay $10,438.05 in restitution, the District Court erroneously modified its original sentence in this case. We thus vacate the District Court’s January 23, 1997 and January 31, 1997, orders requiring that Richards pay $10,438.05 in restitution.

Having so held, we need not address Richards’ additional arguments that the $10,438.05 of ordered restitution did not reflect pecuniary loss suffered by the victim, and that, in ordering the restitution, the court erroneously failed to consider Richards’ financial resources and future ability to pay.

ISSUE 2

Did the District Court err in restricting Richards from entering Cascade County as a condition of his suspended sentence?

On appeal, Richards argues the court erred in imposing, as a condition of his May 9, 1995, suspended sentence, that he “be restricted from entering Cascade County, Montana.” In response, the State argues this Court is without jurisdiction to address the merits of Richards’ claim on this issue due to his failure to file a timely notice of appeal from the May 1995 sentence and judgment. Although Richards does not dispute his failure to file a timely notice of appeal in 1995, he argues that when the court modified that sentence in January 1997 it thereby reimposed the original sentence’s remaining conditions. Therefore, Richards argues, his appeal from the January 1997 reimposed sentence is timely.

Having reviewed the record and considered the parties’ respective arguments, we conclude we are without jurisdiction to consider Richards’ claim that the lower court erred in restricting his access to Cascade County. Rule 5(b), M.R.App.P., requires that, “[i]n criminal cases an appeal from a judgment must be taken within 60 days.” Here, Richards first filed a notice of appeal on February 10, 1997, more than one and one-half years after the imposition of his May 9, 1995, sentence. Although Richards argues the District Court reimposed the original conditions of his suspended sentence in January of 1997, in effect creating a new sentence from which he may now appeal, we disagree.

Neither the District Court’s January 22, 1997, order nor its January 31, 1997, order directs reimposition of the remaining conditions present in the original May 9,1995, sentence and judgment. Rather, the two January 1997 orders exclusively address the issue of restitution. In ordering additional restitution, the court did not impose a new séntence upon Richards, or even reimpose the previous sentence which remained valid. Instead, it simply added a modification to the original May 9, 1995, sentence and judgment. As Richards failed to timely file a notice of appeal from that May 1995 sentence, he is precluded from now contesting that portion of the sentence which ordered he be restricted from entering Cascade County.

Having held we lack jurisdiction to address this issue, we need not consider the State’s argument that Richards failed to first raise the issue in district court, thereby precluding its consideration by this Court.

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


author: JUSTICE LEAPHART

text:
    GERALD KULM, Plaintiff and Appellant, v. MONTANA STATE UNIVERSITY-BOZEMAN and ELISABETH CHARRON, Defendants and Respondents.
    No. 97-299.
    Submitted on Briefs October 2, 1997.
    Decided November 4, 1997.
    54 St.Rep. 1175.
    948 P.2d 243.
    285 Mont. 328.

      For Appellant: Charles F. Angel; Angel Law Firm, Bozeman.
    For Respondents: Leroy H. Schramm, Attorney at Law, Montana University System, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant Gerald Kulm (Kulm) appeals from the March 26, 1997 order of the Eighteenth Judicial District Court granting summary judgment for Respondents Montana State University-Bozeman (MSU) and Dr. Elisabeth Charron (Charron) and dismissing his complaint with prejudice. We affirm.

Kulm raises the following issues:

1) Whether the District Court erred in granting summary judgment;

2) Whether Kulm’s claims are preempted by the Wrongful Discharge from Employment Act (WDEA);

3) Whether Kulm’s claims are barred by the Statute of Frauds;

4) Whether Charron is immune from suit under § 2-9-305(5), MCA; and

5) Whether the District Court lacked jurisdiction because Kulm did not file a claim with the Department of Administration.

We hold that all of Kulm’s claims are preempted by the WDEA, and thus we will not address the remaining issues.

Factual and Procedural Background

Kulm is a nationally recognized professor of mathematics and education. In the fall of 1993, he responded to an add in the Chronicle of Higher Education for a position as a visiting professor at MSU. MSU sought a professor to serve as an evaluator for the Step Project, a project designed to prepare teachers and courses in mathematics and science that was being funded for up to five years by the National Sciences Foundation.

Kulm was invited to MSU and interviewed by Drs. Lyle Anderson and Charron, the co-directors of the Step Project. About two weeks later, Charron contacted Kulm and offered him a position as one of two Directors of Evaluation and Assessment for the Step Project at a salary of $72,000 per year. Kulm accepted the position, resigned as a professor of mathematics education at Texas A&M, and moved his family to Bozeman. The parties did not sign a written contract for employment.

Kulm began working part time in March of 1994 and full time in June of 1994. That fall, following a meeting of the National Science Foundation’s Visiting Committee, Drs. Charron and Anderson advised Kulm that his contract would not be renewed beyond April 30, 1995. They never contended that Kulm’s performance was deficient, but rather informed him that this decision was made on recommendation of the Visiting Committee, which believed that the National Science Foundation would be more likely to continue funding the Step Project if money were not being spent on two full-time evaluators. Kulm was removed from his position as Director of Evaluation and Assessment in January 1995, but performed other duties for the Step Project through April, 1995.

On May 5,1995, Kulm filed suit in the Eighteenth Judicial District Court, naming MSU and Charron, individually, as defendants. Kulm alleged that MSU and Charron were guilty of fraud and negligent misrepresentation for inducing him to resign his position at Texas A&M and for representing that his position at MSU would be renewed annually for up to four years, depending on his performance and the project’s funding. Kulm asserted that Charron had required him to commit to the position for at least two years and that had she informed him that the position was only for one year, he would not have accepted. Kulm also alleged that MSU and Charron should be estopped from claiming that they had no duty to extend his employment beyond one year. Lastly, Kulm claimed that MSU and Charron breached their implied duty of good faith and fair dealing by soliciting a commitment from him that he would stay in the position for at least two years.

MSU and Charron filed a motion for summary judgment, arguing that Kulm’s claims were barred by the WDEA, that the fraud claim was void as it involved an alleged promise of future employment, that all claims were barred by the Statute of Frauds, and that Charron, as an employee of MSU, was immune from suit. The District Court agreed and dismissed Kulm’s complaint with prejudice.

Standard of Review

We review a district court’s grant of summary judgment de novo, thus applying the same standard as the district court pursuant to Rule 56, M.R.Civ.P. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. In Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903 (citations omitted), we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Discussion

By its own terms, the WDEA “sets forth certain rights and remedies with respect to wrongful discharge... [and] provides the exclusive remedy for a wrongful discharge from employment.” Section 39-2-902, MCA. The WDEA explicitly preempts all common law remedies, providing that “no claim for discharge may arise from tort or express or implied contract.” Section 39-2-913, MCA. Further, under the WDEA, “[t]here is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in [the Act].” Section 39-2-905, MCA.

We have held that the WDEA does not bar all tort or contract claims arising in the employment context. Beasley v. Semitool, Inc. (1993), 258 Mont. 258, 261, 853 P.2d 84, 86. In Beasley, the plaintiff was hired by Semitool as a product marketing manager and claimed that Semitool’s offer of employment included oral promises of stock options, bonuses, and opportunities for advancement. Beasley, 853 P.2d at 84. After the plaintiff did not receive the benefits that he claimed he had been promised, he resigned and sued Semitool for breach of express and implied contract, breach of the covenant of good faith and fair dealing, and wrongful discharge. Beasley, 853 P.2d at 84-85. The district court granted summary judgment for Semitool, holding that the plaintiff’s claims were barred by the WDEA. This Court, looking to the plain language of § 39-2-913, MCA, held that “[t]he usual and ordinary meaning of‘claim for discharge’ does not encompass any and all claims an employee may have against the employer, but only those claims for damages caused by an asserted wrongful discharge.” Beasley, 853 P.2d at 86.

Kulm argues that this case does not fall within the preemptive scope of the WDEA, but rather is analogous to Beasley. Kulm argues that, like Beasley’s claims, his claims arise out of the employer’s breach of contract. In his complaint, Kulm alleges MSU and Charron are guilty of fraud and negligent misrepresentation for bringing him to Bozeman with false representations that his employment would be for more than one year. Kulm further alleges they should be estopped from claiming he was only hired for one year and that they breached the implied covenant of good faith and fair dealing by requiring him to commit to staying more than one year. Kulm contends that these claims arose in December, when MSU and Charron breached their contract by notifying Kulm that his contract would not be renewed. Because the alleged breach occurred several months before his actual discharge in April, Kulm urges us to hold that his claims are not “claims for discharge” and, thus, not preempted by the WDEA.

The District Court rejected Kulm’s argument that this case is analogous to Beasley and looked instead to Dagel v. Great Falls (1991), 250 Mont. 224, 819 P.2d 186. In Dagel, the plaintiff brought claims for breach of the implied covenant of good faith and fair dealing and for infliction of emotional distress based on “an implied promise by the City that Plaintiff’s employment would not be terminated and she would not be discharged except for just cause.” Dagel, 819 P.2d at 194. The Dagel Court held that the claims were preempted by the WDEA, 819 P.2d at 196. In Beasley, the Court expressly distinguished Dagel, stating, “it is clear both the tort and implied contract claim in Dagel are completely and inextricably intertwined with and based on Dagel’s termination and discharge.” Beasley, 853 P.2d at 87. In the present case, the District Court held that each of Kulm’s claims was based on “MSU’s promise of continued employment, which was allegedly broken when the employment was terminated. Kulm, like Dagel, would have no conceivable cause of action if he were still employed.”

We agree with the District Court that Kulm’s claims are inextricably intertwined with and based upon his termination from employment. In Beasley, the breach of contract claims were based on the employer’s failure to provide Beasley with stock options, bonuses, and other promised benefits. Beasley, 853 P.2d at 84. Beasley’s claims were not contingent upon termination and, although Beasley did in fact resign prior to filing the action, his claim could have been brought regardless of whether he were still employed. In contrast, if MSU had not acted on its decision to terminate Kulm after one year, he would have no grievance. Kulm contends that he could have filed suit in the months before his termination. However, Kulm’s claims, regardless ofwhen they were filed, are premised upon his early termination from employment and are thus preempted by the WDEA.

Based on the foregoing, we affirm the decision of the District Court.

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


text:
    CYNTHIA DeMARS, Plaintiff and Appellant, v. CONNIE CARLSTROM, Defendant and Respondent.
    No. 97-316.
    Submitted on Briefs September 17, 1997.
    Decided November 4, 1997.
    54 St.Rep. 1178.
    948 P.2d 246.
    285 Mont. 334.

      For Appellant: Thomas J. Murphy; Conklin, Nybo, LeVeque & Murphy, P.C.; Great Falls.
    For Respondent: Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, PC.; Great Falls.
   JUSTICE REGNIER

delivered the Opinion of the Court.

In May 1996, plaintiff and appellant, Cynthia DeMars, filed an action in the District Court for the Tenth Judicial District in Fergus County against Connie Carlstrom to recover damages she incurred as a result of a single vehicle automobile accident allegedly caused by Carlstrom’s negligence. Following trial, the jury returned a verdict finding DeMars comparatively negligent, and apportioning liability between the two parties. DeMars subsequently filed a motion for judgment notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P, on the issue of liability. In the alternative, DeMars moved for a new trial on the issue of comparative negligence pursuant to § 25-11-102(7), MCA. On April 21, 1997, the District Court issued an order denying DeMars’ alternative motions for judgment notwithstanding the verdict and for a new trial. For the reasons discussed below, we affirm.

The sole issue on appeal is whether the District Court erred by denying DeMars’ motion for judgment notwithstanding the verdict or for a new trial on the basis that Carlstrom’s testimony at trial did not constitute a judicial admission which would have precluded the jury from considering comparative negligence and apportioning liability between the parties.

FACTUAL BACKGROUND

On March 13, 1995, DeMars was injured in a single-vehicle automobile accident which occurred on a county road, commonly known as “Thrill Hills Road,” just south of Winifred, Montana. At the time of the accident, Carlstrom was driving and DeMars was a passenger, as were the parties’two teenaged daughters and a mutual friend. The accident occurred when Carlstrom lost control of the vehicle, which rolled and landed on its top in a ditch near the side of the road.

DeMars filed suit on May 29, 1996, to recover her damages, alleging the accident was caused by Carlstrom’s negligence. Carlstrom admitted that her negligence was a cause of the accident, but alleged comparative negligence as an affirmative defense. On February 12, 1997, the case went to trial before a jury on issues of comparative negligence and damages.

Following testimony by Carlstrom, DeMars moved for a directed verdict on the issue of comparative negligence. The court denied DeMars’ motion, and the case went to the jury on issues of comparative negligence and damages. On February 14, 1997, the jury rendered a verdict setting damages at $45,000, but finding DeMars contributorily negligent in causing the accident. The jury apportioned 40 percent liability to DeMars and 60 percent liability to Carlstrom.

On March 12, 1997, DeMars filed a motion for judgment notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., on the issue of liability. In the alternative, DeMars moved for a new trial pursuant to § 25-11-102, MCA, which provides that the court may order a new trial where there was an “error in law occurring at the trial and excepted to by the party making the application” and which “materially affected the substantial rights” of the aggrieved party. Section 25-11-102(7), MCA. In an order dated April 21, 1997, the District Court denied DeMars’ post-trial motions. It is from this order that DeMars appeals.

DISCUSSION

Did the District Court err by denying DeMars’ motion for judgment notwithstanding the verdict or for a new trial on the basis that Carlstrom’s testimony at trial did not constitute a judicial admission which would have precluded the jury from considering comparative negligence and apportioning liability between the parties?

A. Motion for judgment notwithstanding the verdict.

We have held that, in evaluating a motion for judgment notwithstanding the verdict, “the court must view all of the evidence in a light most favorable to the non-moving party.” Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 271-72, 824 P.2d 263, 265. Further, we have recognized that a motion for judgment notwithstanding the verdict is appropriate “only where there is a complete absence of any evidence to warrant submission to a jury.” Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229-30 (citing Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325). The District Court should not grant a motion for judgment notwithstanding the verdict “[unless thére is a complete absence of any credible evidence in support of the verdict.” Ryan, 279 Mont. at 510, 928 P.2d at 230 (citing Barmeyer v. Montana Power Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds by Martel v. Montana Power Co. (1988), 231 Mont. 96, 752 P.2d 140)). Here, DeMars argues that Carlstrom, while testifying at trial, admitted the accident was entirely her fault and thereby made a binding judicial admission which should have prevented her from thereafter contesting liability. Specifically, DeMars points to the following testimony rendered by Carlstrom while under cross-examination:

Q: [By DeMars’ counsel] At any rate, at one point, and actually for several months, you said that [the accident] was all your fault. Isn’t that true?
A: [By Carlstrom] I don’t believe I have ever changed it, how guilty and how responsible I feel about that car wreck.
Q: And I am not trying to make you feel bad, but I need to ask you questions. Is it true that you have said it was all your fault?
A: Yes, it is.
Q: And you said that for a number of months on a number of different occasions. Isn’t that correct?
A: Yes, and I believe I have also said that here today.

DeMars contends that this portion of Carlstrom’s testimony constitutes a binding judicial admission with respect to the issue of liability and, therefore, argues the District Court erred in permitting the jury to consider the issue of comparative fault and in permitting it to apportion liability for the accident. In support of her contention that Carlstrom made a binding judicial admission, DeMars points to our decision in Rasmussen v. State Fund (1995), 270 Mont. 492, 893 P.2d 337.

In Rasmussen, we described a judicial admission as “an express waiver made in court by a party or his attorney conceding the truth of an alleged fact.” Rasmussen, 270 Mont. at 497, 893 P.2d at 340. We noted that such an admission has a conclusive effect upon the party who makes it, and prevents that party from introducing further evidence to “prove, disprove, or contradict the admitted fact.” Rasmussen, 270 Mont. at 497, 893 P.2d at 340 (citing Kohne v. Yost (1991), 250 Mont. 109, 112, 818 P.2d 360, 362). In Kohne, we recognized that “[flor a judicial admission to be binding, it must be an unequivocal statement of fact.” Kohne, 250 Mont. at 113, 818 P.2d at 362. DeMars contends that Carlstrom, by agreeing the accident was all her fault, made just such an unequivocal statement of fact and that the court consequently erred in permitting the jury to consider the issue of comparative negligence.

Carlstrom, however, argues her testimony did not constitute a binding judicial admission because it was made under pressure of cross-examination by a party to the litigation, rather than by an attorney, and because the alleged admission of liability was by no means unequivocal in light of conflicting evidence of record. Carlstrom additionally argues the statements she made on the stand do not qualify as judicial admissions because they were not statements of fact, but were rather expressions of opinion or legal conclusions.

Having considered the record on appeal, we conclude, as did the District Court below, that Carlstrom did not make a binding judicial admission as contemplated by our decisions in the Rasmussen and Kohne cases. Although we recognized in both Rasmussen and Kohne that a litigant may, under certain circumstances, render a judicial admission, Carlstrom did not do so in the present case.

For a judicial admission to be binding upon a party, the admission must be one of fact rather than a conclusion of law or the expression of an opinion. Larson v. A.T.S.I. (Colo. App. 1993), 859 P.2d 273, 275-76. See also Kohne, 250 Mont. at 113, 818 P.2d at 362 (citing Childs v. Franco (E.D. Pa. 1983), 563 F. Supp. 290, 292). Black’s Law Dictionary, 6th Edition, distinguishes facts and law as follows:

A “fact,” as distinguished from the “law,” may be taken as that out of which the point of law arises, that which is asserted to be or not to be, and is to be presumed or proved to be or not to be for the purpose of applying or refusing to apply a rule of law. Law is principle; fact is an event. Law is conceived; fact is actual. Law is rule of duty; fact is that which has been according to or in contravention of the rule.

Black’s Law Dictionary 592 (6th ed. 1990) (citation omitted).

Similarly, Black’s defines opinion evidence or testimony as “[e]vidence of what the witness thinks, believes, or infers in regard to fact in dispute, as distinguished from his personal knowledge of the facts themselves.” Black’s Law Dictionary 1093 (6th ed. 1990).

As the foregoing definitions clearly demonstrate, Carlstrom’s testimony that the automobile accident was all her fault was either her legal conclusion based upon her understanding of the facts as she knew them, or was, in the alternative, the expression of her personal opinion. Accordingly, because Carlstrom’s statements that she was at fault were not statements of fact, we conclude they were not judicial admissions.

Having held that Carlstrom’s statements regarding fault for the accident do not qualify as judicial admissions because they were not statements of fact, we need not address Carlstrom’s alternative arguments that her testimony did not constitute a binding judicial admission because it was not unequivocal, and was made under pressure of cross-examination by a party to the litigation, rather than by an attorney.

As noted above, we have previously held that a motion for judgment notwithstanding the verdict is properly granted only where the record displays “a complete absence of any evidence to warrant submission to a jury.” Ryan, 279 Mont. at 510, 928 P.2d at 230. Further, the District Court should deny such a motion “[ujnless there is a complete absence of any credible evidence in support of the verdict.” Ryan, 279 Mont. at 510, 928 P.2d at 230. Here, the District Court concluded, and the parties do not dispute, that the record contained evidence upon which the jury could have based its decision that DeMars bore partial responsibility for the accident. Having held that Carlstrom did not render a judicial admission, and in light of the conflicting evidence of record regarding the issue of liability for the accident, we conclude the District Court properly permitted the issue of contributory negligence to go before the jury. Thus, we hold the District Court did not abuse its discretion in denying DeMars’ motion for judgment notwithstanding the verdict.

B. Motion for new trial.

DeMars alternatively moved for a new trial on the issue of liability pursuant to § 25-11-102(7), MCA, which provides that the court may order a new trial where there was an “error in law occurring at the trial and excepted to by the party making the application” and which “materially affected the substantial rights” of the aggrieved party.

We review a district court’s denial of a motion for a new trial for an abuse of discretion. Werre v. David (1996), 275 Mont. 376, 395, 913 P.2d 625, 637; Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 149, 900 P.2d 281, 283. See also Tope v. Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50 (reviewing denial of motion for new trial pursuant to § 25-11-102(7), MCA, for manifest abuse of discretion).

For the reasons discussed above, we hold the District Court did not err in permitting the question of comparative negligence to go before the jury. Accordingly, we hold the court did not abuse its discretion in denying DeMars’ alternative motion for a new trial.

In summary, we conclude, as did the District Court below, that Carlstrom’s testimony did not constitute a binding judicial admission because it did not constitute an unequivocal statement of fact. Therefore, we hold the District Court properly permitted the question of comparative negligence to go before the jury and did not abuse its discretion in denying DeMars’ motion for judgment notwithstanding the verdict or her alternative motion for a new trial.

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