author: JUSTICE TRIEWEILER JUSTICE GRAY

text:
    DARLENE M. VINCELETTE, Plaintiff and Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, and BILLINGS SHERATON HOTEL, Defendants and Respondents.
    No. 97-472.
    Submitted on Briefs August 13, 1998.
    Decided October 30, 1998.
    As modified on denial of rehearing December 3, 1998.
    1998 MT 259.
    55 St.Rep. 1071.
    291 Mont. 261.
    968 P.2d 275.

      For Appellant: Frank B. Morrison, Jr.; Morrisons, McCarthy & Baraban; Whitefish; Randy S. Laedeke, Laedeke Law Office, Billings.
    For Respondents: Calvin J. Stacey, Stacey & Walen, Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The plaintiff, Darlene M. Vincelette, commenced this action in the District Court for the Thirteenth Judicial District in Yellowstone County to recover damages for personal injuries sustained while a guest of the defendant, Billings Sheraton Hotel. Following a jury trial, a verdict was returned for the hotel. Darlene appeals from the judgment entered pursuant to that verdict and from the denial of her motion for a new trial. We reverse the judgment of the District Court and remand for further proceedings.

¶2 The issues presented on appeal are:

¶3 1. Did the District Court abuse its discretion when it allowed a witness to testify about out-of-court statements made by an unidentified declarant?

¶4 2. Did the District Court abuse its discretion when it refused to admit photographs offered as demonstrative evidence?

¶5 3. Did the District Court err when it denied plaintiff’s motion to compel discovery?

FACTUAL BACKGROUND

¶6 Around midnight on March 19 or 20, 1989, Darlene Vincelette fell while entering the Billings Sheraton Hotel. She and her companion had passed through the outer doors leading to the hotel lobby and were crossing over a carpeted entryway. Darlene took a step backward to allow her companion to open one of the inner doors. As she did so, she fell and injured her back.

¶7 Darlene asserts that the cause of the fall was either a defect in the carpeting or negligent maintenance of the carpeting. The hotel denied any defect or negligence. It alleged that Darlene was intoxicated and that her condition was the cause of her fall.

¶8 Darlene moved the District Court prior to trial for an order excluding testimony from hotel employees that they had been told Darlene was drunk. The District Court did not rule on the motion.

¶9 At trial, one of the hotel’s maintenance engineers was allowed to testify that he had received a radio call from another hotel employee, who stated that Darlene was drunk. Plaintiff’s counsel moved to strike the testimony as hearsay, but the motion was denied. The declarant was never identified nor produced as a witness.

¶10 The District Court also refused to allow Darlene to admit photographs of the entryway, taken seven years after the accident, which were offered to illustrate the testimony of several witnesses regarding the condition of the carpet.

ISSUE 1

¶11 Did the District Court abuse its discretion when it allowed a witness to testify about out-of-court statements made by an unidentified declarant?

¶12 We review evidentiary rulings for an abuse of discretion. The district court has broad discretion to determine whether or not evidence is relevant and admissible pursuant to the Montana Rules of Evidence. Absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. See State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citing State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054).

¶13 Darlene alleged that the cause of her fall was the condition of the hotel carpeting, caused by improper maintenance. As a defense, the hotel asserted that there was nothing wrong with the carpeting, but that Darlene’s intoxication was the cause of her fall. Prior to trial, Darlene filed a motion in limine to exclude testimony from hotel employees that they were told the plaintiff was drunk. The District Court did not rule on the motion, but stated that it would make a decision at trial, once a foundation for the testimony existed.

¶ 14 At trial, Darlene called Larry Vandenbosch, a maintenance engineer on duty at the hotel the night of her accident, as an adverse witness. On direct examination, Mr. Vandenbosch testified that he received a report by radio that a woman had fallen in the entryway. He then went to investigate, but the entryway and lobby were empty when he arrived. He further testified that upon his arrival he examined the entryway carpeting.

¶15 On cross-examination, counsel for the hotel asked Vandenbosch what “information” the radio caller gave him. Vandenbosch then testified that he was told a woman had fallen in the entry way and that she was drunk. He could not remember who placed the radio call, and the unidentified caller did not testify at trial.

¶16 Darlene moved to strike the statement that she was drunk on the basis that it was hearsay. The District Court allowed the statement on the basis that it was not offered for the truth of the matter asserted, but “merely to reflect what was said to him and therefore it’s not hearsay.”

¶17 Following the ruling, the hotel again elicited testimony from Vandenbosch that he had been told Darlene was drunk. Then, in closing argument, counsel for the hotel referred to the testimony.

¶ 18 On appeal, Darlene contends the out-of-court statement was offered to show that her fall resulted from intoxication rather than a defect in the carpeting. The hotel contends that the testimony was not hearsay because it was not offered to prove the truth of the matter asserted, but to show its effect on the witness’s state of mind and to show why he went to the entryway to investigate.

¶19 Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. See Rule 801(c), M.R.Evid. Hearsay is not admissible except as provided by the rules of evidence. See Rule 802, M.R.Evid. A statement does not fit within the definition of hearsay when it is not offered to prove the truth of the matter asserted, but to show the resulting effect on the witness’s state of mind. See Mannix v. Butte Water Co. (1993), 259 Mont. 79, 86, 854 P.2d 834, 838; Moats Trucking Co. v. Gallatin Dairies (1988), 231 Mont. 474, 479, 753 P.2d 883, 886.

¶20 In Moats, the plaintiff trucking firm brought an action for breach of contract and breach of the covenant of good faith and fair dealing when the defendant dairy company terminated a hauling contract with forty-eight days’ notice. The district court allowed one of the defendant’s employees to explain why notice was not given immediately when the decision was made to terminate the contract by relating an out-of-court conversation with another employee, who expressed concern that the plaintiff would terminate services immediately upon being advised that its contract was being terminated. The district court held that the out-of-court conversation was not admitted to prove that the plaintiff would actually have terminated services immediately, but to show the effect that it had on the state of mind of the defendant’s employee. Prior to allowing the testimony, the district court cautioned the jury that the party’s testimony was admitted only for the purpose of showing that the statements were made, not for proving that they were true. We affirmed the ruling of the district court on that basis. See Moats, 231 Mont. at 479, 753 P.2d at 886.

¶21 Here, there is no similar purpose for admitting an out-of-court statement about Darlene’s intoxication. The testimony that a woman had fallen, offered on direct examination, served to show why Vandenbosch went to the entryway and examined the carpeting. The specific statement that the woman was drunk had no bearing on his decision to investigate. The statement served no other purpose than to prove that Darlene fell because she was drunk, and is more analogous to the hearsay testimony offered in Mannix.

¶22 In Mannix, the plaintiff brought an action for wrongful termination of employment after he was discharged for his initial refusal to follow, and later criticism of, a company directive. He sought to introduce testimony from other employees of the same company regarding the transaction which led to his discharge. He argued that the out-of-court statements were offered to prove his state of mind and, therefore, were not hearsay pursuant to our decision in Moats. The district court disagreed, and we affirmed on the basis that the statements were, in fact, offered to prove his employer’s conduct and, therefore, for the truth of what was asserted. See Mannix, 259 Mont. at 86-87, 854 P.2d at 839.

¶23 Here, the hotel’s argument that Vandenbosch’s testimony was not offered to prove the truth of what was asserted is belied by the fact that the hotel’s defense was based on its contention that Darlene was intoxicated. The evidence the hotel sought to present, suggesting that Darlene was drunk, was an out-of-court statement offered to prove the truth of what was asserted, and was inadmissible hearsay pursuant to Rules 801(c) and 802, M.R.Evid. We conclude that the District Court erred when it allowed the hearsay testimony.

¶24 For error to be the basis for a new trial, it must affect the substantial rights of the appellant. See Rule 61, M.R.Civ.P. Because of the inflammatory nature of the evidence, and Darlene’s complete inability to test its reliability by cross-examination, we conclude that the evidence did affect Darlene’s substantial rights and was prejudicial. For this reason, we reverse the judgment of the District Court and remand for a new trial.

ISSUE 2

¶25 Did the District Court abuse its discretion when it refused to admit photographs offered as demonstrative evidence?

¶26 We review the admission of demonstrative evidence for a manifest abuse of discretion. See Cowles v. Sheeline (1993), 259 Mont. 1, 12-13, 855 P.2d 93, 100; Palmer by Diacon v. Farmers Ins. Exch. (1988), 233 Mont. 515, 522-23, 761 P.2d 401, 406.

¶27 At trial, Darlene sought several times to admit photographs of the hotel entryway taken seven years after the accident. The photos depicted missing strips of carpeting and corners of carpet tiles which were sticking up. The hotel objected to the admission of the photographs on the basis that due to the passage of time, wear and tear, and a change in ownership, the conditions they depicted were more prejudicial than probative. It also objected on the grounds that Darlene alleged her fall was caused by a hole in the carpeting, while the photos depicted other types of defects. Darlene contends the photographs were relevant because they served to demonstrate the effect of wear and tear and improper maintenance on the carpeting.

¶28 Generally, all relevant evidence is admissible and that which is not relevant is not admissible. See Rule 402, M.R.Evid. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative material. See Rule 403, M.R.Evid.

¶29 If relevant, demonstrative exhibits are admissible to supplement a witness’s spoken description of the event and to clarify some issue in the case, if they are more probative than prejudicial. See Cowles, 259 Mont. at 12, 855 P.2d at 100 (citing Palmer, 233 Mont. at 522-23, 761 P.2d at 406). By contrast, “they are inadmissible only when they do not illustrate or make clearer some issue in the case; that is, where they are irrelevant or immaterial, or where they are of such a character as to prejudice the jury.” Cowles, 259 Mont. at 13, 855 P.2d at 100 (citing Workman v. McIntyre Const. Co. (1980), 190 Mont. 5, 24, 617 P.2d 1281, 1291).

¶30 Here, the parties stipulated that the photos were taken seven years after the accident. The District Court heard testimony from a witness responsible for cleaning the carpeting at the time of the accident, through whom Darlene had attempted to introduce the photos, and concluded that the carpeting, as depicted, was sufficiently different from the time of the accident that the photos should not be admitted. The District Court also concluded that the photos were not relevant because they depicted defects of a different nature than those alleged by Darlene.

¶31 Given the length of time between the accident and the photographs, as well as the change in the condition of the carpeting, we conclude that the District Court did not abuse its discretion when it refused to admit the photographs.

ISSUE 3

¶32 Did the District Court err when it denied Plaintiff’s motion to compel discovery?

¶33 Because we have remanded this case for a new trial, we presume that a new discovery schedule will be established and that the parties will have the opportunity to complete any discovery they consider necessary. Therefore, we deem it unnecessary to decide the discovery issues presented on appeal.

¶34 We reverse the judgment of the District Court and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and LEAPHART concur.

JUSTICE GRAY

specially concurs and dissents.

¶35 I concur in the Court’s opinion on issue 2, which holds that the District Court did not abuse its discretion when it refused to admit photographs offered as demonstrative evidence. I dissent from the opinion on issue 1 and, for that reason, I would not remand for a new trial. As a further consequence of my dissent, I would address issue 3 and hold that the District Court did not abuse its discretion in denying Darlene’s motion to compel discovery.

¶36 With regard to issue 1,1 agree with the Court that the pertinent questions are 1) whether the District Court abused its discretion in admitting Vandenbosch’s testimony on cross-examination that the radio caller told him that the woman who had fallen was drunk; and 2) if so, whether the admission of that testimony materially affected Darlene’s substantial rights. I also agree with the Court’s conclusion that the District Court abused its discretion in admitting the hearsay testimony. It is my view, however, that the Court is wrong — and clearly wrong — in holding that Darlene’s substantial rights were affected, thereby entitling her to a new trial.

¶37 The Court’s conclusion that Darlene’s substantial rights were affected by admission of part of Vandenbosch’s testimony and by the reference to it in closing argument by defense counsel is based on far too limited a review of the record before us, a review which would lead the reader to conclude that Vandenbosch’s reference was the only testimony regarding whether Darlene had been drinking before her fall at the Sheraton. Nothing could be further from the truth.

¶38 The controlling pretrial order in this case reflects that Darlene contended the Sheraton and its insurer were negligent and that their negligence resulted in serious and permanent injury to her back and legs. The defendants contended, in turn, that they were not negligent in any fashion. They further contended that, assuming some negligence on their part was found, their negligence was not a cause of any damages and/or injuries sustained by Darlene. Finally, they contended that Darlene was negligent and that her negligence contributed to the cause of her damages and/or injuries. The case proceeded to trial on the basis of the pretrial order.

¶39 Darlene’s counsel’s opening statement to the jury was brief. The Sheraton’s opening statement tracked through most of the evidence it expected to be presented during the trial. It referenced Darlene’s and her companion’s coming testimony that they had been out dancing, socializing and having a few drinks on the evening in question. Counsel also noted that Darlene would testify that the total of 3 to 4 rum and Diet Cokes she consumed that night — without having any food — did not have anything to do with her fall. Counsel made no mention of any coming testimony by Vandenbosch that the radio caller said the woman who fell was drunk.

¶40 The 4-day trial proceeded much as outlined by the Sheraton’s counsel in his opening statement, including the testimony about Darlene and her companion having a number of drinks on the night of her fall. The testimony also included, of course, Vandenbosch’s inadmissible hearsay testimony referenced above.

¶41 In closing arguments, Darlene’s counsel recounted her testimony that she had been out dancing and socializing and having a few drinks on the evening in question. He argued that the Sheraton was negligent and that, if the hole had not existed in the carpet, she would not have fallen. Darlene’s counsel also argued,

That evening — if she was drunk, and she wasn’t — and she stepped in that hole and fell over backwards they would still be liable. If she was drunk, that’s not a defense [to the Sheraton’s negligence].

Thus, Darlene’s counsel addressed the matter of her drinking directly in his closing argument, no doubt recognizing that it was necessary to do so because of the testimony of Darlene and her companion regarding their activities that evening.

¶42 The closing argument by counsel for the Sheraton runs to nearly 30 pages of transcript. It centered primarily on the lack of proof advanced by Darlene as to any negligence, but also noted that the Sheraton had raised as a defense that Darlene was at fault in the fall. Counsel then made a 1-sentence reference to the portion of Vandenbosch’s testimony about which Darlene complains on appeal: “He had heard that there was some woman who had been drinking.” That was the extent of counsel’s reference to Darlene’s drinking on the night in question and, of course, Vandenbosch’s testimony aside, Darlene had admitted that she had, in fact, been drinking that night.

¶43 Finally, the record reflects that this case went to the jury on a Special Verdict form of a relatively common type. The first question thereon was “Were the defendants negligent?” The second question, “Was the negligence of the defendants a legal cause of Plaintiffs’ [sic] damages?” The third question, “Was the Plaintiff negligent?” As is usual in this type of special verdict form, the jury was instructed to answer yes or no to the first question and, if it answered “no,” to date and sign the Special Verdict. Indeed, that is what the jury did: it answered the first question — regarding whether the defendants were negligent — “No” and that was the end of the jury’s deliberations. In other words, the jury did not reach the causation question or the comparative negligence question.

¶44 I submit that, on this record, it is impossible to conclude that Darlene’s substantial rights were affected by Vandenbosch’s testimony about the remainder of the radio call he received. In the context of the other evidence, including Darlene’s own testimony about drinking that night, Vandenbosch’s testimony and defense counsel’s 1-sentence reference to it in a 30-page closing argument, simply was not — as the Court characterizes it— “inflammatory” and “prejudicial.”

¶45 Moreover, since the jury resolved the case by finding that the defendants were not negligent and did not reach the Special Verdict questions to which the extent of Darlene’s drinking were relevant — namely, causation and comparative negligence — it cannot be said that Darlene’s substantial rights were affected by the erroneous admission of a small part of Vandenbosch’s testimony. Indeed, we recently addressed a similar situation in Peschke v. Carroll College (1996), 280 Mont. 331, 929 P.2d 874. There, we concluded that the trial court had abused its discretion in admitting a videotape into evidence. We further concluded, however, that the plaintiffs substantial rights were not materially affected because the evidence went to the issue of causation which the jury had not reached because of its threshold finding that the college was not negligent, and held that the error was harmless. Peschke, 280 Mont. at 342-43, 929 P.2d at 881. Peschke clearly controls the proper resolution of issue 1 in the present case.

¶46 On issue 1,1 would hold that Darlene’s substantial rights were not materially affected by the erroneous admission of hearsay evidence and, as a result, that the error was harmless. Thus, I would affirm the District Court’s denial of Darlene’s motion for a new trial.

¶47 Finally, as noted above, I also would affirm the District Court’s denial of Darlene’s motion to compel discovery. Our cases holding that trial courts have broad discretion in discovery-related matters are legion and require no citation. Darlene simply has not established an abuse of discretion by the District Court in that regard.

¶48 I would affirm the District Court on all issues raised by Darlene on appeal and I dissent from the Court’s failure to do so.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HARVEY CALDWELL, Defendant and Appellant.
    No. 98-075.
    Ordered November 5, 1998.
    1998 MT 261.
    55 St.Rep. 1076.
    291 Mont. 272.
    968 P.2d 711.
   OPINION AND ORDER

Backgrouncl

¶1 On May 24,1997, Harvey Caldwell (Caldwell) pleaded guilty in Powell County Justice Court to driving under the influence of alcohol and was convicted of and sentenced for that offense. Caldwell reserved the right to appeal the Justice Court’s denial of his motion to dismiss the charge pursuant to § 46-12-204(3), MCA. In this motion, Caldwell argued that the charge should be dismissed for two reasons. First, Caldwell argued that the arresting officer did not have enough information prior to the arrest to form a particularized or reasonable suspicion that criminal activity was taking or had taken place. Second, Caldwell argued that the officer violated his right to gather exculpatory evidence when the officer refused to administer a blood test. The Justice Court stayed imposition of Caldwell’s sentence pending his appeal to District Court. Caldwell appealed the denial of his Motion to Dismiss to the District Court for the Third Judicial District, Powell County, pursuant to § 46-17-311(1), MCA.

¶2 The District Court held an evidentiary hearing on October 30, 1997, wherein the State and Caldwell presented testimony and evidence concerning the issues raised in Caldwell’s Motion to Dismiss. On November 25,1997, the District Court issued an Opinion and Order denying Caldwell’s Motion to Dismiss and affirming the Justice Court. On December 18,1997, the Justice Court lifted the stay of imposition of sentence.

¶3 Five days later, on December 23,1997, Caldwell appealed to this Court from the District Court’s Opinion and Order denying his motion to dismiss. On July 8,1998, the State filed with this Court a motion to dismiss Caldwell’s appeal. The State argues that we should dismiss Caldwell’s appeal with prejudice because, under § 46-17-311(1), MCA, the District Court reviewed his appeal as an appellate court and not pursuant to its “de novo jurisdiction.” Thus, the State contends that Caldwell does not have the statutory right to appeal the Justice Court’s ruling a second time to this Court. Alternatively, the State argues that even if Caldwell is entitled to appeal to this Court, we should dismiss the appeal without prejudice on the basis that it is premature since the District Court did not enter a judgment of conviction against Caldwell or sentence him after it denied his Motion to Dismiss.

¶4 There are two issues before this Court. First, we are called upon to decide whether an appeal may be taken to this Court after a district court has ruled on an appeal from a justice court’s ruling on a pretrial motion pursuant to §§ 46-17-311(1) and 46-12-204(3), MCA. This is an issue of first impression. We hold that a defendant may appeal to this Court from a district court’s order on an issue reserved for appeal pursuant to §§ 46-17-311(1) and 46-12-204(3), MCA. Second, we are called upon to decide whether Caldwell may appeal from the District Court’s Opinion and Order even though the District Court did not enter a judgment of conviction against Caldwell or sentence him. We hold that Caldwell’s appeal to this Court is not premature because Caldwell is appealing from a district court order entered after final judgment of conviction that affects his substantial rights.

Discussion

¶5 [1] Montana’s district courts have both original and appellate jurisdiction. Section 3-5-301, MCA. The Montana Constitution provides that “[t]he district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law.” Art. VII, Sec. 4(2) Mont. Const. Likewise, we have stated that, as a general rule, district courts must try all appeals from justice courts as trials de novo and may not sit as courts of review. State ex rel. Wilson v. District Court (1995), 270 Mont. 449, 451, 893 P.2d 318, 319 (Wilson II) (citing City of Billings v. McCarvel (1993), 262 Mont. 96, 101, 863 P.2d 441, 444 and State v. Todd (1993), 262 Mont. 108, 113, 863 P.2d 423, 426). Moreover, we have stated that “[a] district court does not have appellate jurisdiction to review the correctness of legal conclusions made by a justice court.” Todd, 262 Mont. at 113, 863 P.2d at 426 (citing State v. Kesler (1987), 228 Mont. 242, 246, 741 P.2d 791, 793).

¶6 Notwithstanding, we have judicially recognized two limited exceptions to this general rule for cases in which the defendant appeals from an error at the justice court level that cannot be cured by a trial de novo in the district court. Wilson II, 270 Mont. at 451-52, 893 P.2d at 319-20. See also State v. Barker (1993), 260 Mont. 85, 858 P.2d 360. Under these exceptions, the district court limits the scope of its review to the alleged error that cannot be cured by a trial de novo. See Wilson II, 270 Mont. at 452, 893 P.2d at 320. See also Barker, 260 Mont. at 89-92, 858 P.2d at 363-64.

¶7 In Barker, the defendant appealed to district court because he had been charged with driving under the influence of alcohol but convicted of reckless driving. The defendant then filed a motion with the district court to dismiss the case arguing that a retrial on the original driving-under-the-influence charge would violate his constitutional protection against double jeopardy. We held that even though the statutory remedy for appealing a justice court decision is a trial de novo in district court, the district court could not conduct a trial de novo since the trial would have violated the defendant’s constitutional protection against double jeopardy. Barker, 260 Mont. at 90-92, 858 P.2d at 363-64. Implicit in our holding was that the district court had the appellate jurisdiction to consider the defendant’s motion to dismiss the case without conducting a trial de novo of the entire case.

¶8 In Wilson II, the defendant appealed to district court the justice court’s denial of her motion to dismiss for lack of speedy trial. We held that, since a trial de novo would not be an adequate remedy for a defendant who has appealed a justice court’s denial of a motion to dismiss for lack of speedy trial, the district court could, on appeal, rule on the justice court’s denial of the motion to dismiss. Wilson II, 270 Mont. at 452, 893 P.2d at 320.

¶9 Section 46-17-311(1), MCA, contains another exception to the general rule that district courts must try appeals from justice courts as trials de novo. This statute provides in pertinent part that “except for cases in which legal issues are preserved for appeal pursuant to 46-12-204, all cases on appeal from a justice’s or city court must be tried anew in district court....” Section 46-12-204(3), MCA, in turn, states in pertinent part that “[w]ith the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty, reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion.”

¶10 The State contends that, under the exception in § 46-17-311(1), MCA, the district court “assumes appellate jurisdiction of the preserved issues, not de novo jurisdiction of the entire case.” Because the right to appeal a criminal conviction from justice court is purely statutory, the State contends that Caldwell has already had his appeal on the reserved issue and that he has no statutory right to appeal the Justice Court’s ruling a second time in this Court.

¶11 In response, Caldwell argues that, on appeal, the district court tries de novo the issues that a defendant has reserved for appeal pursuant to § 46-12-204(3), MCA. Caldwell points out that justice courts are not courts of record and that, consequently, a district court does not have a record to review when a justice court ruling is appealed. Thus, Caldwell asserts that the district court must hold an evidentiary hearing to determine anew the facts concerning the issue raised in the defendant’s appeal. Caldwell argues that the district court, after considering the testimony and evidence presented at the evidentiary hearing, issues an order that is appealable to this Court. We agree.

¶12 Under the exception in § 46-17-311(1), MCA, it is clear that a district court does not try a defendant’s entire case de novo after a defendant pleads guilty injustice court and reserves the right to appeal a justice court’s ruling on a pretrial motion pursuant to § 46-12-204(3), MCA. See also § 46-17-203(2), MCA (“A plea of guilty in a justice’s court... waives the right of a trial de novo in district court.”). We agree with the State that the district court takes appellate jurisdiction when a defendant appeals pursuant to § 46-12-204(3), MCA. We disagree, however, with the State’s analysis that because the district court takes appellate jurisdiction over the issues raised in the defendant’s appeal that it does not review the appeal de novo. As Caldwell correctly points out, justice courts are not courts of record and, as such, there may not be a factual record for the district court to review on appeal. Consequently, the district court must conduct an evidentiary hearing to ascertain the facts concerning the issues reserved for appeal. Therefore, the exception in § 46-17-311(1), MCA, cannot be read to change the district court’s de novo standard of review. Instead, the exception must be read as limiting the scope of the district court’s appellate jurisdiction to a de novo review only of the reserved issue and not of the defendant’s entire case. Thus, the exception in § 46-17-311(1), MCA, is simply the statutory counterpart to the exception that we recognized in Barker and Wilson II. That is, while the district court does not have appellate jurisdiction to try the entire case de novo, it does have appellate jurisdiction to try the limited issues appealed de novo.

¶13 Finally, we reject the State’s argument that, in cases such as the one at bar, the district court provides final appellate review. Under Article VII, Section 2(1) of the Montana Constitution, this Court has the inherent power and obligation to interpret the constitution, to protect individual rights, and to review lower court decisions and actions for error. State v. Finley (1996), 276 Mont. 126, 135, 915 P.2d 208, 214. The Montana Supreme Court, as the highest appellate court in Montana, is “supreme in the exposition of the law of [the Montana] constitution.” Finley, 276 Mont. at 135, 915 P.2d at 214 (citing State v. Leslie (1935), 100 Mont. 449, 454, 50 P.2d 959, 962 and State v. Toomey (1958), 135 Mont. 35, 44, 335 P.2d 1051, 1056). Consequently, if this Court did not act as the final appellate court in cases such as the one sub judice, this Court would be deprived of its constitutional power and obligation of final appellate review under Article VII, Section 2 of the Montana Constitution.

¶14 In sum, the exception in § 46-17-311(1), MCA, limits the scope of the district court’s appellate jurisdiction to a de novo review only of the reserved issue and not of the defendant’s entire case. Once the district court issues a final order disposing of the reserved issue on appeal, the defendant may appeal the district court’s order to this Court.

¶ 15 The State’s second argument is that we should dismiss the instant appeal without prejudice because this Court lacks jurisdiction to consider it because it is premature. The State reaches this conclusion by arguing that the District Court did not enter a judgment of conviction or sentence Caldwell. The State cites State v. Diesen, 1998 MT 163, [290 Mont. 55], 964 P.2d 712, and State v. Wilson (1992), 252 Mont. 264, 827 P.2d 1286 (Wilson I) in support of its argument. These cases, however, are distinguishable from the case at bar.

¶16 In Wilson I, the defendant appealed a justice court conviction to district court before the justice court had sentenced her. We held that, since a judgment is not final until the justice court sentences a defendant and because a defendant may not appeal until the justice court renders a final judgment, the district court was without subject matter jurisdiction to hear the case and, therefore, was obligated to dismiss the appeal. Wilson I, 252 Mont. at 266, 827 P.2d at 1287.

¶17 In Diesen, the defendant pleaded guilty in district court and reserved his right to appeal the court’s denial of his motion to dismiss for improper venue. Although the district court adjudged the defendant guilty, it deferred sentencing until the defendant’s appeal was decided. We cited § 46-20-104(1), MCA, which states that a defendant in a criminal case may appeal “only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.” In addition, we cited § 46-1-202(6), MCA, which defines “conviction” as a “judgment or sentence entered upon a guilty plea...” and § 46-1-202(10), MCA, which defines “judgment” as “an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court.” We concluded that, since the district court did not sentence the defendant, there had been no “final judgment of conviction.” Diesen, ¶ 4. We also noted that the defendant was not appealing from a post-judgment order of the district court. Diesen, ¶ 4. Thus, we held that this Court lacked jurisdiction at that time to consider the defendant’s appeal or to rule on the substantive legal issue that the defendant raised. Diesen, ¶ 4 (citing § 46-20-104, MCA, and State v. Hegeman (1991), 248 Mont. 49, 52, 808 P.2d 509, 511).

¶18 In the instant case, Caldwell is appealing from the District Court’s Opinion and Order denying his motion to dismiss the charge against him. Section 46-20-104(1), MCA, permits a defendant to appeal from “a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.” (Emphasis added.) Unlike the defendants in Wilson I and Diesen, Caldwell had a final judgment of conviction entered against him by the Justice Court. He can therefore appeal from any order after this final judgment that affects his substantial rights. Where the defendant has reserved legal issues for appeal to district court under § 46-17-311(1), MCA, the district court’s order or judgment disposing of those issues is final for purpose of appeal under § 46-20-104(1), MCA. Here, the District Court’s Opinion and Order denying Caldwell’s Motion to Dismiss is a final order that affects Caldwell’s substantial rights and was entered after a final judgment of conviction against him. Accordingly, Caldwell may appeal the District Court’s Opinion and Order to this Court pursuant to § 46-20-104(1), MCA. Therefore,

¶20 IT IS ORDERED that the State’s Motion to Dismiss Appeal should be and is, hereby, DENIED.

¶21 IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Opinion and Order by mail to counsel of record.

¶22 DATED this 5th day of November, 1998.

S/ J. A. TURNAGE, Chief Justice

/S/ JAMES C. NELSON, Justice

/S/ KARLA M. GRAY, Justice

/S/ WILLIAM E. HUNT, Justice

/S/ W. WILLIAM LEAPHART, Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/ JIM REGNIER, Justice

      . In the instant case, the District Court held a hearing at which it received testimony and evidence to determine anew whether the police officer had sufficient information prior to arrest to form a particularized or reasonable suspicion that criminal activity was taking or had taken place and whether Caldwell was denied his right to gather exculpatory evidence when the police refused to administer a blood test after he requested one.


author: JUSTICE LEAPHART

text:
    CHARLES FREDERICK UNMACK and LINDA J. UNMACK, Plaintiffs and Appellants, v. DEACONESS MEDICAL CENTER, BILLINGS CLINIC, B.R., P.C.,YELLOWSTONE EMERGENCY PHYSICIANS, a general partnership, MICHAEL BUSH, M.D., RICH COLE, M.D., BARBARA CURRY, M.D.,RICK LAMB, M.D., R. JAMES MAJXNER, M.D., JEAN ELLIS, M.D., JAMES R. HARRIS, M.D., J.D.W., M.D., JOHN DOES I-V as employees and agents of Deaconess Medical Center, and JOHN DOES VI-X as employees and agents of Billings Clinic, Defendants and Respondents.
    No. 97-429.
    Submitted on Briefs July 16 1998.
    Decided November 5, 1998.
    1998 MT 262.
    55 St.Rep. 1080.
    291 Mont. 280.
    967 P.2d 783.

      For Appellants: James P. O’Brien; O’Brien Law Office, Missoula; Mark E. Westveer; Westveer Law Office, Missoula
    For Respondents: John J. Russell; Brown, Gerbase, Cebull, Fulton, Harmon & Ross, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Plaintiffs, Charles and Linda Unmack (the Unmacks), appeal from the jury verdict and judgment of the Thirteenth Judicial District Court, Yellowstone County, dismissing their action with prejudice.

¶2 We reverse and remand for a new trial.

¶3 In determining whether the District Court erred, we consider the following issues:

¶4 1. Whether the District Court abused its discretion in admitting character evidence for purposes of impeachment concerning a disciplinary action taken against the Unmacks’ medical expert, Dr. Blaylock, for his conduct as a lawyer.

¶5 2. Whether the District Court showed bias toward the Unmacks.

Standard of Review

¶6 The standard of review for evidentiary rulings is whether a district court abused its discretion in admitting evidence. Seizure of $23,691.00 in U.S. Currency (1995), 273 Mont. 474, 905 P.2d 148.

Factual and Procedural Background

¶7 In December, 1995 the Unmacks brought a medical malpractice action against Defendants (Deaconess Medical Center). In their trial brief, Deaconess Medical Center requested that the District Court rule on the admissibility of evidence (the attorney character evidence) that a trial panel of the Oregon State Bar Association (the Oregon trial panel) took disciplinary action against an expert witness for the Unmacks, Dr. Paul Blaylock (Dr. Blaylock), for his conduct as a lawyer in soliciting clients for his law practice. Dr. Blaylock is a physician as well as a licensed attorney in Oregon. At an in-chambers hearing, the Unmacks objected that the attorney character evidence was not relevant, that it was extremely prejudicial, and that Rule 608, M.R.Evid., barred its admission. The District Court found that an expert witness has a special status, that the disciplinary proceeding was relevantto whether “the jury can accept [Dr. Blaylock’s] expertise in any area.” The District Court concluded that the proceeding went to “the obligations of attorneys in this day and age to bring to the Court experts that are honest,” and ruled that “it is important that [the jury] be informed” that disciplinary action was taken against Dr. Blaylock. The Unmacks called Dr. Blaylock as an expert witness during the trial. On cross-examination, Deaconess Medical Center questioned Dr. Blaylock regarding the disciplinary action taken by the Oregon trial panel, and the District Court admitted the decision of the Oregon trial panel into evidence. In May, 1997 the jury returned a verdict in favor of Deaconess Medical Center.

Discussion

¶8 1. Whether the District Court abused its discretion in admitting character evidence for purposes of impeachment concerning a disciplinary action taken against the Unmacks’ medical expert, Dr. Blaylock, for his conduct as a lawyer.

¶9 The Unmacks argue that the District Court erred in admitting character evidence that was unrelated to Dr. Blaylock’s credibility as an expert witness. The Unmacks contend that Dr. Blaylock’s status as a practicing attorney was not relevant to the credibility of his medical opinions. They argue further that the attorney character evidence was extremely prejudicial because of the low esteem in which the public holds lawyers, and they contend that Deaconess Medical Center exploited the low repute of lawyers to collaterally attack Dr. Blaylock. Finally, the Unmacks argue that Deaconess Medical Center’s impeachment of Dr. Blaylock was improper because the attorney character evidence had no bearing on his truthfulness or untruthfulness.

¶ 10 Deaconess Medical Center responds that the District Court did not err in admitting the attorney character evidence, because the attorney character evidence was probative of Dr. Blaylock’s truthfulness. Deaconess Medical Center also argues that the District Court had discretion under Rule 608, M.R.Evid., to admit evidence of the character and conduct of a witness. Deaconess Medical Center argues in the alternative that even if the District Court erred, the error did not affect any substantial right of the Unmacks under Rule 61, M.R.Civ.R Deaconess Medical Center contends that Dr. Blaylock was not deprived of an opportunity to give his expert opinions and that any error by the District Court was therefore harmless.

¶11 Rule 608 provides in pertinent part:

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness.

Rule 608, M.R.Evid. (emphasis added).

¶ 12 We conclude that neither the fact that a disciplinary action was taken against Dr. Blaylock for his conduct as a lawyer nor the specific findings of the Oregon trial panel were probative of Dr. Blaylock’s truthfulness or untruthfulness. Dr. Blaylock was charged with having improperly initiated contact with prospective clients in order to obtain professional employment as a lawyer. The Oregon trial panel considered whether Dr. Blaylock’s “mental state was one of intent, knowledge, negligence or an isolated instance of negligence,” and concluded that Dr. Blaylock’s mental state “was one of neglect... The record amply demonstrates that [Dr. Blaylock] has never previously or subsequently engaged in an improper initiation of contact with a potential client.” The Oregon trial panel found that Dr. Blaylock had initiated contact with a prospective client “for the purpose of obtaining professional employment in violation of DR 2-104(A).” The Oregon trial panel concluded:

We find numerous mitigating factors here primarily: (a) the absence of any prior disciplinary record... There was no dishonest or selfish motive; (b) the accused here sought to render assistance to one whom he believed had requested that he contact them. The accused enjoys an otherwise impeccable reputation and is of outstanding character.

The finding of the Oregon trial panel that Dr. Blaylock acted negligently as a lawyer on one occasion has no relevance to his credibility as an expert medical witness.

¶13 This Court has previously considered whether prior misconduct by a witness is admissible for purposes of impeachment under Rule 608(b), M.R.Evid. In State v. White, the district court admitted character evidence to impeach a defense witness on cross-examination. State v. White (1983), 202 Mont. 491, 658 P.2d 1111. Seeking to impeach a defense witness who had testified to what he saw of a fight outside a bar, the prosecution inquired whether the witness had ever been ejected from the bar. The Court in White held that the admissibility of the character evidence was controlled by Rule 608(b), M.R.Evid. White, 202 Mont. at 495, 658 P.2d at 1113. The White Court concluded that

testimony as to Phillips’ previous misconduct was wholly unrelated to the ability of Phillips to observe, recall or testify as to any relevant occurrences in the altercation between White and Pippin. It served only to create unfair prejudice against White, and confixsion of the issues for the jury, and as such should have been barred under Rule 403, M.R.Evid.

White, 202 Mont. at 496, 658 P.2d at 1113. The Court in White held that the district court erred in admitting “the interrogation of a witness, not a party to the suit, as to past instances of misconduct for the purpose of impeaching the witness.” White, 202 Mont. at 495, 658 P.2d at 1113.

¶14 In the present case, we hold that the District Court abused its discretion in admitting the attorney character evidence. Rule 608, M.R.Evid., allows the admission of specific instances of conduct that bear upon a witness’ credibility, provided that they are probative of truthfulness or untruthfulness. Because the attorney character evidence was not probative of Dr. Blaylock’s truthfulness as an expert witness, its admission was improper under Rule 608, M.R.Evid. Because the attorney character evidence was not relevant to Dr. Blaylock’s credibility as a medical expert witness, its admission was also improper under Rule 402, M.R.Evid., which provides that “[ejvidence which is not relevant is not admissible.” Finally, because the attorney character evidence was highly prejudicial and confusing, it should have been barred under Rule 403, M.R.Evid. Rule 403, M.R.Evid., provides in pertinent part that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

¶15 Deaconess Medical Center relies unpersuasively on two decisions in contending that the District Court did not abuse its discretion in admitting the attorney character evidence. In Navarro de Cosme v. Hospital Pavia, plaintiffs appealed a district court’s decision to allow the defendant to cross-examine an expert witness about the suspension of his license as a notary, his having been a defendant in three medical malpractice cases, and his testimony in another case that he had submitted an inflated invoice for his fees as an expert witness. Navarro de Cosme v. Hospital Pavia (1st Cir. 1991), 922 F.2d 926. The court in Navarro de Cosme concluded that a district court has “wide discretion under Rule 608(b)” in admitting specific instances of conduct to attack a witness’ credibility and that “it is clear that the matters under inquiry on the cross-examination of Dr. Hernandez Cibes all pertained to his credibility as a witness.”Navarro de Cosme, 922 F.2d at 933. Deaconess Medical Center argues that the evidence in Navarro de Cosme that the witness’ notary license was suspended is similar to the attorney character evidence in the present case and

that the District Court was therefore correct in admitting the attorney character evidence. The Navarro de Cosme court simply noted that the witness was cross-examined about “the suspension of his license as a notary for failure to submit the required reports.” Navarro de Cosme, 922 F.2d at 932. The Navarro de Cosme court did not explain, however, why or for what purpose the reports were required. Thus, it is unclear how the Navarro de Cosme court determined that the suspension of the witness’ notary license related to his credibility as an expert witness. The Navarro de Cosme decision consequently sheds no light upon the issues in the present case.

¶16 Deaconess Medical Center also relies on Jackson v. Ed’s Cab Company. Jackson v. Ed’s Cab Company (La. Ct. App. 1976), 333 So.2d 701. In Jackson, the court affirmed a district court’s admission of extracts from prior appellate opinions that considered an expert witness’ qualifications. Jackson, 333 So.2d at 703. The Jackson court concluded that “prior judicial pronouncements [concerning an expert witness may],..form a basis for cross-examination of that witness regarding his qualifications.” Jackson, 333 So.2d at 702. In Jackson, the prior judicial opinions were offered regarding the witness’ credibility and expertise as an expert witness. In the present case, however, the attorney character evidence concerned Dr. Blaylock not as an expert medical witness but as a lawyer, and Deaconess Medical Center’s reliance on Jackson is accordingly misplaced.

¶17 Finally, we hold that the District Court’s admission of the attorney character evidence was not harmless error and that it affected the substantial rights of the Unmacks. Rule 61 provides in pertinent part:

Harmless error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial...unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

Rule 61, M.R.Civ.P. In Zeke’s Distributing v. Brown-Forman (1989), 239 Mont. 272, 278, 779 P.2d 908, 912, this Court held that “[f]or error to be the basis for a new trial, it must be so significant as to materially affect the substantial rights of the complaining party.” The Unmacks contend, and Deaconess Medical Center does not dispute, that Dr. Blaylock was the only witness whom the Unmacks offered regarding the standard of care used by Deaconess Medical Center. Dr. Blaylock was an important witness for the Unmacks. There was a great danger that the jury would confuse the attorney character evidence with Dr. Blaylock’s credibility as an expert medical witness. The attorney character evidence lacked probative value: it was irrelevant, clearly prejudicial, and potentially misleading. We conclude that the District Court’s error was so significant that it materially affected the substantial right of the Unmacks to a fair trial and that the error was not harmless.

¶18 2. Whether the District Court showed bias toward the Unmacks.

¶ 19 The Unmacks contend that the District Court displayed bias toward them that resulted in prejudice. The Unmacks argue for example that the District Court, in asking questions of a witness for Deaconess Medical Center, unduly emphasized that the witness was born and raised in Billings, Montana, and that the District Court harshly treated the Unmack’s expert witness, Dr. Blaylock. Deaconess Medical Center responds that the Unmacks failed to preserve the issue for review. We agree. An objection raised on appeal for the first time is not timely. See Scofield v. Estate of Wood (1984), 211 Mont. 59, 63, 683 P.2d 1300, 1302. The Unmacks acknowledge that they did not preserve this issue for appellate review but argue that this Court should consider bias under the “plain error standard.” In State ex rel. Ins. Fund v. Berg, this Court concluded that “[ujnder very limited circumstances, the plain error doctrine permits review of errors not objected to at trial which result in substantial injustice by denying a party a fair trial.” State ex rel. Ins. Fund v. Berg (1996), 279 Mont. 161, 173, 927 P.2d 975, 982 (emphasis added) (citation omitted). We conclude that exercise of the plain error doctrine is not justified in the present case. Thus, because the Unmacks did not preserve this issue for review, we do not address whether the District Court showed bias towards the Unmacks.

¶20 Reversed and remanded for a new trial.

JUSTICES HUNT, NELSON, REGNIER and TRIEWEILER concur.


text:
    RAYMOND P. TIPP, THOMAS W. FRIZZELL and RICHARD R. BULEY, Plaintiffs and Appellants, v. DOUGLAS G. SKJELSET, Defendant and Respondent.
    No. 98-303.
    Submitted on Briefs September 3, 1998.
    Decided November 5, 1998.
    1998 MT 263.
    55 St.Rep. 1084.
    291 Mont. 288.
    967 P.2d 787.

      For Appellants: Richard R. Buley; Tipp & Buley, Missoula.
    For Respondent: John H. Gilliam; Skjelset & Gilliam, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 This is an appeal from the District Court of the Fourth Judicial District, County of Missoula. Raymond P. Tipp (Tipp), Thomas W. Frizzell, and Richard R. Buley (TFB) appeal the District Court’s order awarding Douglas G. Skjelset (Skjelset) interest on a money judgment against TFB. We affirm.

¶2 We restate the two issues on appeal:

¶3 (1.) Did the District Court err in awarding Skjelset postjudgment interest on his money judgment against TFB?

¶4 (2.) Should Skjelset be granted damages for a frivolous appeal by TFB?

Factual and Procedural Background

¶5 Tipp and Skjelset were formerly partners in a law firm. This case originated with a complaint filed by TFB in 1989 alleging that Skjelset had breached an agreement between the parties concerning the distribution of partnership assets upon its dissolution. The primary asset in dispute was a piece of real estate located in Missoula, which was jointly owned by Tipp and Skjelset. The case went to a mandatory settlement conference, from which a settlement agreement was derived in April of 1994. This agreement provided that Skjelset’s ownership interest in the real estate was to be purchased by the remaining partners (i.e., by TFB).

¶6 Thereafter, a dispute arose as to the interpretation of the settlement agreement. Alleging that Skjelset had breached the agreement, TFB requested that the District Court enforce the parties’ rights under the settlement agreement. On March 3,1997, the court awarded Skjelset a 50% interest and Tipp the remaining 50% interest based on the deeds, practices and understandings in effect between the parties. Skjelset’s 50% ownership interest in the real estate was valued by the District Court at $158,300.03, which, after deducting $30,000 for the costs of settlement and the payment of outstanding taxes, amounted to a net judgment of $ 128,300.03. This net amount represented the value of Skjelset’s ownership interest in the real estate that TFB had promised to purchase from Skjelset upon dissolution of the partnership.

¶7 Further, the District Court concluded that because “Tipp ha[d] attempted to transfer [his interest in] the real estate outside of and contrary to the settlement agreement in an effort to limit the jurisdiction of the Court in effectuating the settlement agreement which he initially requested,” it was “appropriate... to closely control and manage the refinancing of the real estate” under the settlement agreement. Accordingly, the court directed that the parties investigate refinancing opportunities within the 45 days following the judgment and report back to the court on or before May 1,1997, for purposes of setting forth a specific time-line to allow Skjelset to be paid his interest in the real estate, while still allowing Tipp clear title to facilitate refinancing the amount of the payment to Skjelset. TFB appealed the District Court’s distribution of the partnership assets under the settlement agreement. This Court affirmed the District Court judgment in Tipp v. Skjelset (1997), 285 Mont. 274, 947 P.2d 480 (Tipp I).

¶8 After the affirmance, Skjelset’s counsel wrote TFB’s counsel requesting a certified check for $137,922.56, the principal amount of the judgment plus interest through December 3, 1997. Skjelset waited approximately two weeks without payment from TFB before filing a motion for enforcement of judgment with the District Court. Fifteen days after the filing of this motion, TFB deposited the principal amount of the judgment into trust with the District Court; Skj elset then delivered a quitclaim deed into trust with the court nine days later. In his motion, Skjelset requested that the court award him interest on the judgment amount from the date of entry of the District Court’s findings and conclusions to the date that the amount was paid into trust with the court.

¶9 On February 23,1998, the District Court entered its order, granting Skjelset “post- judgment interest” at the statutory rate of 10% from the date of the original findings and conclusions through the date the amount was paid into trust. This amounted to an award of $10,691.70 in postjudgment interest. The court further directed the clerk of court to disburse the $128,300.03 to Skjelset, but ordered that the quitclaim deed would not be released to TFB until it filed a satisfaction of judgment respecting the postjudgment interest with the court. TFB appeals from the District Court order.

Discussion

¶10 The first issue on appeal is whether the District Court erred in granting postjudgment interest to Skjelset on the monetary judgment against TFB.

¶11 TFB contends that the District Court erred in awarding interest to Skjelset under § 27-1-211, MCA. Statutory construction is a question of law. We review a district court’s conclusion of law to determine if the court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470,474-75,803 P.2d 601,603.

¶12 Section 27-1-211, MCA, states:

Right to Interest. Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day except during such time as the debtor is prevented by law or by the act of the creditor from paying the debt.

Section 27-1-211, MCA. According to TFB, § 27-1-211, MCA, cannot support the District Court’s grant of interest because the money judgment owed Skjelset by TFB is not an award of “damages” within the meaning of the statute. We agree that § 27-1-211, MCA, cannot support an award of postjudgment interest, but we disagree with TFB’s conclusion that the District Court’s reliance on § 27-1-211, MCA, necessarily voids an otherwise valid award of postjudgment interest.

¶13 As Skjelset makes clear, this Court has construed § 27-1-211, MCA, as mandating an award of “prejudgment interest” where three criteria are satisfied: “(1) [there exists] an underlying monetary obligation; (2) the amount of recovery is certain or capable of being made certain by calculation; and (3) the right to recover the obligation vests on a particular day.” Byrne v. Terry (1987), 228 Mont. 387, 390, 741 P.2d 1341, 1343 (emphasis added). Thus, § 27-1-211, MCA, is applicable only to an award of “prejudgment interest.” See also Martel Const., Inc. v. State (1991), 249 Mont. 507, 512, 817 P.2d 677, 680 (referring to § 27-1-211, MCA, as “the general prejudgment interest statute” of Montana); Price Bldg. Service, Inc. v. Holms (1985), 214 Mont. 456, 468, 693 P.2d 553, 559 (discussing the legislative intent underlying § 27-1-211, MCA, “[t]he prejudgment interest statute”). ¶14 This case is factually analogous to our decision in In re Marriage of Mannix (1990), 242 Mont. 137, 788 P.2d 1363. That case involved the appeal of an award of interest by the trial court on a debt created by the parties’ property settlement agreement. The language of the property settlement agreement, like here, required one party to purchase the other party’s interest in jointly owned real estate. We noted that even though the payment was to be made in the future (i.e., upon the sale of the real estate), the right to the money vested on the day the trial court entered its final decree. We thus held that postjudgment interest was properly awarded at the rate of 10% per annum from the date of the court’s entry of judgment to the day that the party owing the money tendered payment. Marriage ofMannix, 242 Mont, at 140, 788 P.2d at 1365.

¶ 15 In Marriage of Mannix, we rejected the petitioner’s arguments based upon § 27-1-211, MCA. Specifically, we stated that the petitioner’s “reliance on Sec. 27-1-211, MCA, is inappropriate in this case, since the issue here concerns ‘post judgment’ interest, rather than prejudgment interest under Sec. 27-1-211, MCA.” Marriage of Mannix, 242 Mont. at 140, 788 P.2d at 1366. In rejecting the arguments based on § 27-1-211, MCA, we affirmed the District Court’s award of postjudgment interest at a rate of 10% per annum as a proper result pursuant to § 25-9-205, MCA. Marriage of Mannix, 242 Mont. at 140, 788 P.2d at 1365. Similarly, TFB’s reliance on case law interpreting § 27-1-211, MCA, is inappropriate here because postjudgment interest, not prejudgment interest, is at issue.

¶16 Skjelset recognizes that “[t]he award of interest here was really an award ofpost- judgment interest-not pre-judgment interest.” Despite the District Court’s reliance on the wrong statute, he contends that the award of postjudgment interest was appropriate. We agree. In this case, the District Court reached the right result by awarding Skjelset postjudgment interest, but incorrectly based its conclusion on § 27-1-211, MCA. We conclude that the court’s judgment “can be sustained under the wrong-reason, right-result appellate rule.” Knutson v. State (1984), 211 Mont. 126, 129, 683 P.2d 488, 490 (citing Fergus County v. Osweiler (1938), 107 Mont. 466, 86 P.2d 410). A harmless error does not mandate that we reverse a district court judgment; an “error must cause substantial prejudice” to warrant reversal. Erickson v. State ex rel. Bd. of Med. Exam. (1997), 282 Mont. 367, 375, 938 P.2d 625, 630. The District Court’s error regarding the application of § 27-1-211, MCA, was harmless.

¶17 The statutory bases for an award of postjudgment interest in Montana are §§ 25-9-204 and 25-9-205, MCA. The District Court should have applied § 25-9-205, MCA, to support its award of postjudgment interest. See Marriage of Mannix, 242 Mont. at 140, 788 P.2d at 1365. Section 25-9-205, MCA, provides that, in cases where a postjudgment interest rate is not specified by contract, “interest is payable on judgments recovered in the courts of this state at the rate of 10% per annum and no greater rate.” Section 25-9-205(1), MCA. Indeed, the Montana Legislature has shown an intent to impose postjudgment interest on all valid judgments rendered in the courts of this state: Section 25-9-204, MCA, mandates that “[t]he clerk [of court] must include in the judgment entered up by him [or her] any interest on the verdict or decision of the court, from the time it was rendered or made.” Section 25-9-204, MCA.

¶18 We hold that the District Court reached the right result in assessing 10% per annum postjudgment interest against TFB from the date of judgment to the date that the amount due was paid into trust, but erred in basing its conclusion upon § 27-1-211, MCA, which only supports an award of prejudgment interest. In this case, since TFB and Skjelset disputed the amount of payment owed Skjelset under the settlement agreement, it was not until the District Court order fixed the money amount owed Skjelset by TFB that there was a clearly ascertainable amount due. The District Court decision affirmed in Ti.pp I was therefore a “judgment” because it was “a final determination of the rights of the parties” under the settlement agreement. Rule 54(a), M.R.Civ.P

¶ 19 “[0]nce a person is liable for a money judgment, and payment is not made, the person entitled to the judgment is further entitled to a fair rate of interest.” Knudson v. Knudson (1981), 191 Mont. 204, 208, 622 P.2d 1025, 1027. Thus, interest from the date of judgment at the legal rate of 10% per annum should have been assessed against TFB under § 25-9-204, MCA, or § 25-9-205, MCA. We hold that the District Court reached the right result in this case, but should have applied § 25-9-205, MCA, to support its award of postjudgment interest.

¶20 TFB also argues that interest was improperly awarded because Skjelset’s right to payment did not vest on a “particular day.” This argument, however, is premised upon the specific wording of § 27-1-211, MCA. Since we have concluded that § 27-1-211, MCA, is not the applicable statute for an award of postjudgment interest, we need not address this argument.

¶21 Lastly, Skjelset asks this Court to award interest on the $10,691.70 in postjudgment interest that the District Court awarded. However, § 25-9-205, MCA, states that “interest must not be compounded in any maimer or form.” Section 25-9-205(1), MCA. To grant Skjelset’s request would be in effect to grant him a compound interest rate on his judgment, contrary to § 25-9-205, MCA. Therefore, we decline to award Skjelset interest on interest.

¶22 The second issue on appeal is whether Skjelset should be granted damages for a frivolous appeal by TFB.

¶23 Skjelset contends that he is entitled to an award of damages against TFB for the costs and fees of defending this appeal, which he insists is frivolous. Rule 32, M.R.App.P, vests this Court with the authority to assess damages for an appeal in a civil case if we are satisfied from the record that the appeal “was taken without substantial or reasonable grounds.” Rule 32, M.R.App.P. Where a reasonable ground for appeal exists, we will decline to award sanctions under Rule 32, M.R.App.P. Tope v. Taylor (1988), 235 Mont. 124, 132, 768 P.2d 845, 850. In Tipp I, we considered whether to award Skjelset his costs and attorney fees for a meritless appeal. There, while stating that we did not condone the actions that Skjelset complained of, we declined to award sanctions against TFB for a frivolous appeal. Tipp I, 285 Mont, at-279, 947 P.2d at 483. This time around, however, we will not so hastily dismiss Skjelset’s request for sanctions under Rule 32, M.R.App.P.

¶24 Throughout the course of this lengthy and often petty dispute, TFB has displayed significant disdain for the integrity of the judicial process. As previously noted, Tipp attempted to transfer his ownership interest in the real estate out of his name in order to defeat the jurisdiction of the District Court, forcing the court to closely monitor the refinancing of the property. In this appeal, a close reading of the legal authorities cited by TFB in support of its position should have prompted the conclusion that § 27-1-211, MCA, could neither support nor defeat an award of postjudgment interest.

¶25 Furthermore, TFB’s contention that it should not have to pay interest because “Skjelset had not performed its part [under the District Court order by] ... preparing and depositing with the Court a deed,” is a mischaracterization of the court’s order. Nowhere did the court specifically order Skjelset to deposit the deed into trust as a condition precedent to payment. Indeed, the court’s monitoring of the refinancing of the real estate was prompted by TFB’s abuses in the first place.

¶26 After TFB’s defeat in its first appeal, Skjelset had to bring a motion with the District Court to compel enforcement of its judgment because of TFB’s refusal to tender payment. Only upon filing of this motion did TFB finally tender payment to the court — a full ten months after judgment. Due to Skjelset’s filing of the motion, he was properly awarded postjudgment interest by the District Court. With this appeal, it appears that TFB attempts to again avoid its obligations or at least suspend performance of them for as long as possible. We will not tolerate such dilatory tactics.

¶27 We assess sanctions when a litigant takes conflicting positions throughout a case, makes baseless claims on appeal, and uses inaccurate citations in its appellate brief. Federated Mut. Ins. Co. v. Anderson (1996), 277 Mont. 134, 145, 920 P.2d 97, 104. We also assess sanctions when an appeal is entirely unfounded and is brought for the purpose of causing delay. Reilly v. Farm Credit Bank of Spokane (1993), 261 Mont. 532, 535, 863 P.2d 420, 422 (citing Hock v. Lienco Cedar Products (1981), 194 Mont. 131, 140, 634 P.2d 1174, 1179). Lastly, we assess sanctions where a litigant’s actions constitute an abuse of the judicial system. Bickler v. Racquet Club Heights Assoc. (1993), 258 Mont. 19, 25, 850 P.2d 967, 971; see also Thomas v. Hale (1990), 246 Mont. 64, 69, 802 P.2d 1255, 1258.

¶28 “ ‘It is important for the sake of the litigants and for the judicial system that litigation will at some time be finally ended.’ ” South Gallatin Land Corp. v. Yetter (1990), 245 Mont. 320, 326, 801 P.2d 575, 578, quoting Lussy v. Dye (1985), 215 Mont. 91, 93, 695 P.2d 465, 466. This case is replete with a history of dilatory tactics by TFB, including this appeal. We conclude that this appeal was taken without substantial or reasonable grounds, and we therefore award damages to Skjelset for a frivolous appeal by TFB. On remand, the District Court shall award Skjelset’s reasonable costs and attorney’s fees for defending this appeal.

¶29 In sum, we hold that the District Court erred in awarding postjudgment interest on the basis of §27-1-211, MCA, which only applies to an award of prejudgment interest. However, we conclude that the error was harmless as the District Court reached the right result for the wrong reason. Therefore, we affirm the award of postjudgment interest against TFB under the proper standard of § 25-9-205, MCA. Lastly, we impose sanctions on TFB for a frivolous appeal pursuant to Rule 32, M.R.App.P, and remand to the District Court for a determination of Skjelset’s reasonable costs and attorney’s fees.

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


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE CUSTODY AND PARENTAL RIGHTS OF P.M., A Youth in Need of Care.
    No. 98-246.
    Submitted on Briefs September 10, 1998.
    Decided November 5, 1998.
    1998 MT 264.
    55 St.Rep. 1089.
    291 Mont. 297.
    967 P.2d 792.

      For Appellant: Jeremy Gersovitz, Public Defender’s Office, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Mark Mattioli, Assistant Attorney General, Helena; Mike McGrath, County Attorney; Carolyn A. Clemens, Deputy County Attorney, Helena; Randi M. Hood, Public Defender’s Office (Guardian Ad Litem), Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶ 1 This is an appeal by S.P., the mother of P.M., from the judgment of the First Judicial District Court, Lewis and Clark County, terminating her parental rights. We affirm the judgment of the District Court.

ISSUE

¶2 Did the District Court err in terminating the parental rights of S.P. with regard to her minor son, P.M.?

BACKGROUND

¶3 P.M. was born on November 21,1990, to R.M., his biological father, and S.P., his biological mother. For most of his life P.M. has been raised solely by his mother, S.P., and it is only with regard to her rights that this appeal is concerned.

¶4 P.M. is a little boy with big emotional problems. He has been diagnosed with a pervasive development disorder, not otherwise specified, within the autistic spectrum. This disorder is manifested by retreat into a fantasy world whenever outward stimulation becomes too stressful or overwhelming, an inability to form reciprocal social interactions, echolalia, odd repetitive behavior, and noncommunicative speech patterns. PM. has also exhibited episodic aggressiveness and intractable tantrums. Although P.M. is currently seven years of age, he functions at the emotionally developed stage of a two or three year old. Over the last eighteen months, P.M. has been a patient at the Intermountain Children’s Home (hereinafter Intermountain) in Helena, Montana, where he is receiving treatment for his emotional disorder. The prognosis for P.M. indicates that he requires a long-term, stable, structured living environment if he is ever going to achieve a normal level of emotional development.

¶5 P.M.’s biological mother, S.P, has been diagnosed with a number of emotional problems of her own, including recurrent, severe depression with psychotic features, Post Traumatic Stress Disorder, alcohol dependence and poly-substance abuse. Symptoms of S.P.’s depression include sleeping for days at a time and going several days without eating. The psychotic features related to her diagnosis include disassociation, disorientation, loss of time of day and hearing voices. She also exhibits short-term memory loss and has a history of abusive relationships involving battery by a male companion. S.P. has a history of suicidalization and at least one known suicide attempt in April 1996 for which she was hospitalized.

¶6 S.P. admitted P.M. into Intermountain in April 1996 when none of the local schools were willing to enroll him and she could no longer control him on her own. The Department of Public Health and Human Services (hereinafter DPHHS), was not involved in the decision to place P.M. into inpatient care, although it had been involved with S.P. and P.M. for several years.

¶7 After P.M. had been admitted to Intermountain for several months, DPHHS filed a petition seeking protective services and temporary custody of P.M., along with temporary investigative authority and adjudication of P.M. as a youth in need of care. S.P. signed a stipulation granting temporary investigative authority and agreeing that P.M. was a youth in need of care. S.P. and the DPHHS also entered into a treatment plan for S.P. which was approved by and filed with the District Court in June 1997.

¶8 This treatment plan required S.P:

To deal with her mental health issues with professionals approved by DPHHS. [S.P.] has a multitude of professionals involved in her life which need to be case managed by the Adult Services Worker at the program run through Mental Health. This would include the monitoring of medication as prescribed by her psychiatrist.
To deal with her drug and/or alcohol issues with [a] professional approved by DPHHS. [S.P.’s] use of alcohol in the past has [prevented] her from dealing successfully with her mental health issues. [S.P.] will agree to drug testing to ensure her prescribed medications are at the appropriate level and the use of illicit drugs and/or alcohol are not interfering with her treatment.
To attend and participate in on-going counseling with a therapist approved by DPHHS.
To authorize the professionals to make written reports as well as frequent updates available to DPHHS indicating progress made in treatment and any further recommendations they may have.
To cooperate with the professionals involved with her son [P.M.] at the Intermountain Home. This would include consistent visits with [her] son, as set up by the home, as well as cooperating with the staff, to ensure the best possible consistent treatment for her son.
To cooperate and follow through with suggestions by the counselors [and] DPHHS Social Worker relating to the emotional, psychological and physical well being of [P.M.].

The treatment plan also required S.P. to remain a law-abiding citizen and stipulated that the failure to comply with the goals set forth in the plan would be grounds for considering alternate living arrangements for P.M., including the possibility of foster care.

¶9 On October 22,1997, DPHHS filed its petition seeking the termination of S.P.’s parental rights with regard to P.M. A hearing was held in December 1997, and in February 1998 the District Court issued its order terminating S.P.’s parental rights and transferring permanent legal custody of P.M. to the DPHHS. It is from this order that S.P. appeals.

STANDARD OF REVIEW

¶10 Our standard of review of a district court’s decision to terminate parental rights is whether the court’s factual findings are clearly erroneous and whether the court’s conclusions of law are correct. In re A.W.M., 1998 MT 157, ¶ 8, [289 Mont. 333 ¶8], 960 P.2d 779, ¶ 8; Matter of D.H. and F.H. (1994), 264 Mont. 521, 524-25, 872 P.2d 803, 805. Factual findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Interstate Prod. Credit Ass’n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

DISCUSSION

¶11 The District Court’s authority over this matter is derived from the Parent-Child Legal Relationship Termination Act of 1981. The criteria for termination of a parent’s rights is found in § 41-3-609, MCA, which reads in pertinent part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(e) the child is an adjudicated youth in need of care and both of the following exist:
(1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or
(f) the parent has substantially failed to successfully complete or meet the goals of a treatment plan approved by the court and the child has been in an out-of-home placement for a cumulative total period of 1 year or longer.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child;
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child ....

¶ 12 This Court has recognized that “a natural parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” In re R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. Accordingly, prior to terminating an individual’s parental rights, the district court must adequately address each applicable statutory requirement to determine if it has been established, and the burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In re E.W., 1998 MT 135, ¶ 12, [289 Mont. 190, ¶12], 959 P.2d 951, ¶ 12. “In the context of parental rights termination cases, we have defined clear and convincing evidence as ‘simply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of the proof.’ ” In re E. W., ¶ 13 (quoting In re J.L., D.L., and A.G. (1996), 277 Mont. 284, 289, 922 P.2d 459, 462).

¶ 13 Although the District Court did not specify upon which of the alternate provisions of § 41-3-609, MCA, it was relying in terminating the parental rights of S.R, the findings of fact and conclusions of law set forth in the February 6,1998 order indicate that the District Court found the provisions of both § 41-3-609(e), MCA, and § 41-3-609(f), MCA, satisfied under the facts of this case. Because S.R had previously stipulated that P.M. was a youth in need of care, that issue is not in dispute. The District Court found that a valid treatment plan had been approved by and filed with the court, the terms of that treatment plan had not been complied with, the conditions rendering S.P. unfit to parent P.M. were not likely to change within a reasonable time, P.M. had been in an out-of-home placement for the preceding 18 months, and termination of S.P.’s parental rights was in the best interest of P.M. S.P. contests these findings, arguing that the terms of the treatment plan were substantially complied with and that with continued therapy her own condition is likely to improve within a time frame in which P.M. could reasonably and safely be returned to her care.

¶14 The argument asserted by S.P. on appeal is unsupported by the evidence in the record. Two of the goals of S.P.’s treatment plan were that she deal with her mental health issues and attend on-going counseling with an approved therapist. Evidence in the record reveals that from November 1995 to April 1996, S.P. maintained a regular therapy schedule with a clinical social worker; however, because of difficulties with her Medicaid coverage, S.P. terminated these sessions around the same time that P.M. was placed in Intermountain. ¶15 It was the suggestion of S.P.’s therapist that S.P. apply for SSI to assist her with her financial difficulties and that she continue therapy. The therapist also offered to continue S.P.’s sessions without cost until the application for SSI went through, at which time the sessions could be paid for retroactively. S.P. declined the suggestion of her therapist to continue her sessions and apply for SSI at that time. S.P. contacted her therapist in May 1996 to request a session but could not get an appointment until July 18,1996. She attended the counseling session on July 18, but participated in only two additional sessions between July 1996 and December 1996.

¶ 16 Another goal of the treatment plan was that S.P. deal with her alcohol and substance abuse problems. S.P.’s therapist testified before the District Court that S.P.’s chemical dependency problems were a major barrier to the resolution of her mental health issues, and that because of the severity of S.P.’s dual diagnoses, S.P. would probably need inpatient treatment to effectively deal with her substance abuse problem. S.P. declined to follow this suggestion on the grounds that such a program would require her to be away from P.M. for 30 days and that she had previously tried an inpatient detoxification program but had been unsuccessful. S.P. indicated that she preferred trying to deal with her chemical dependency problems on her own. ¶17 Between the time that the treatment plan was filed in June 1996 to the time the DPHHS commenced these proceedings to terminate S.P.’s parental rights in October 1996, the DPHHS had only requested one urinalysis test of S.P. The results of this test were positive for the presence of alcohol and THC. S.P. also had one of her scheduled visits to P.M. at Intermountain canceled by the hospital staff because she was intoxicated when she arrived for the visit. There is no evidence in the record that S.P. was seeking any form of treatment apart from her occasional therapy sessions to address her alcoholism and drug abuse problems from the time her treatment plan was first formulated until the District Court terminated her parental rights.

¶18 S.P.’s treatment plan also required her to cooperate with the professionals at Intermountain to provide the best possible treatment for her son. Encompassed within the need for cooperation was the necessity of regular, consistent visits between S.P. and P.M. at the Intermountain facility. From April 1996 to March 1997, S.P. missed 17 out of 33 scheduled visits and 31 of 68 telephone calls with P.M. The effect of these missed visits on P.M. was severe, and the staff at Intermountain indefinitely suspended visits from S.P. in March 1997, because P.M. became aggressive with the staff, his teachers, and other students whenever S.P. failed to make her appointed visits.

¶ 19 The staff at Intermountain reiterated to S.P. the need for her to be consistent and regular in her attendance at these meetings, but when they recommenced the visits between S.P. and P.M. beginning May 8,1997, S.P. missed the visit scheduled for that day. On July 17, 1997, S.P. missed a visit in which she and P.M. were supposed to go to Marysville to visit with P.M.’s grandparents, because S.P. had been badly beaten by her boyfriend the night before and did not want P.M. to see her in her battered condition. On September 25, 1997, S.P. missed a visit with P.M. when the Intermountain staff sent her home for being intoxicated.

¶20 On October 2,1997, S.P. and P.M. had a very emotional meeting in which P.M. confronted S.P. with his feelings about her lying, drinking, gambling, and abusive relationships. The visit was very hard on both S.P. and P.M., and the staff at Intermountain decided to postpone the next week’s meeting. However, S.P. did not show up for the next visit, and her social worker and the staff at Intermountain later learned that she had left the state for some period of time. The October 2, 1997 visit was the last time S.P. visited P.M. at Intermountain.

¶21 Another of S.P.’s treatment goals was to cooperate and follow through with suggestions by counselors and social workers in relation to the well-being of P.M. Included among these suggestions was the need for S.P. to keep herself safe, and this included avoiding abusive relationships with male companions who had battered her in the past. However, despite the constant admonitions of her caseworker and others, S.P. continued to maintain her relationship with her abusive boyfriend and was beaten by him on at least one occasion subsequent to the formulation of her treatment plan.

¶22 The last goal set forth in the treatment plan was that S.P. should remain law-abiding. However, in December 1997, S.P. was arrested and jailed on two felony charges of forgery and issuing bad checks. S.P. had indicated to her case worker that her reason for writing the checks was to obtain money for gambling.

¶23 The testimony of S.P.’s therapist indicates that S.P. is in need of a long-term treatment program in order to effectively address her emotional, mental and drug-dependency problems. Even if S.P. were to work diligently and consistently toward resolving these issues, an outpatient program would likely take at least three years to bring S.P. to a level of satisfactory emotional and mental health.

¶24 It is not in the best interests of P.M. to wait that long for his mother to reorganize her chaotic world. P.M. is a child who needs order, structure, consistency and reliability in a parent. Although there is clearly a consensus among all of the health care professionals who have dealt with S.P. and P.M. that S.P. dearly loves her child, there is an equally unanimous belief that S.P. is not fit to parent this child at this time and will not be fit to do so at anytime in the foreseeable future.

¶25 Because there is clear and convincing evidence in the record that P.M. is a youth in need of care, that S.P. has not fulfilled the terms of her treatment plan, that the conditions which render S.P. unfit to parent are not likely to change within a reasonable period of time, and that P.M. has been in out-of-home placement for longer than one year, we conclude that the District Court did not err in terminating the parental rights of S.P. under the provisions of either § 41-3-609(e), MCA, or § 41-3-609(f), MCA.

¶26 Affirmed.

JUSTICES HUNT, GRAY, TRIEWEILER and REGNIER concur.