author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART,

text:
    IN RE THE MARRIAGE OF MICHAEL W. WANG, Petitioner and Respondent, and LAURIE APRIL WANG, Respondent and Appellant.
    No. 95-068.
    Submitted on Briefs April 20, 1995.
    Decided June 1, 1995.
    52 St.Rep. 449.
    896 P.2d 450.
    271 Mont. 291.

      For Appellant: Kevin T. Sweeney, Sweeney & Healow, Billings.
    For Respondent: Christopher P. Thimsen, Attorney at Law, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Laurie April Wang (Laurie) appeals the decision of the Thirteenth Judicial District Court, Yellowstone County, appointing Michael W. Wang (Michael) primary residential custodian of their son Jesse. We affirm.

We find the following issues dispositive:

1. Did the District Court err in failing to address Michael’s religious beliefs and the effect those beliefs would have on Jesse when it determined what was in Jesse’s best interest?

2. Did the District Court err in determining that Laurie had previously denied Michael’s access to visitation?

Michael and Laurie were married in 1989, and had one child, Jesse, who was born in 1990. In 1993 the couple separated and Michael filed for divorce. While Michael and Laurie agreed that joint custody would be in Jesse’s best interest, they disagreed as to who should be the primary residential custodian. Both requested custody of Jesse during the school year, with the other having Jesse during the summers and alternating holidays.

Social workers conducted home evaluations of Michael and Laurie and concluded that both were suitable to be primary caretakers of Jesse. The District Court held a hearing in which Michael and Laurie presented evidence and arguments to support their respective positions. Laurie presented testimony that Michael was a member of the Cornerstone Community Church. She argued that the practices of this church, including the performance of exorcisms and the belief that a wife should be subservient to her husband, would be harmful to Jesse.

Following the hearing, the District Court issued its findings of fact, conclusions of law and order. The court granted Michael physical custody of Jesse during the school year. Laurie was granted physical custody of Jesse during the summer and alternating holidays. Laurie appeals the decision of the District Court.

Issue 1

Did the District Court err in failing to address Michael’s religious beliefs and the effect those beliefs would have on Jesse when it determined what was in Jesse’s best interest?

Laurie argues that the District Court should have made specific findings in relationship to Michael’s involvement with the Cornerstone Community Church and how this involvement affected the best interest of Jesse. We disagree.

In Lorenz v. Lorenz (1990), 242 Mont. 62, 788 P.2d 328, we stated, a district court need not make specific findings on each statutory factor in determining best interest of children under § 40-4-212, MCA, but need only express the ‘essential and determining’ facts upon which it rests its conclusion.

Lorenz, 788 P.2d at 332 (citing Cameron v. Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060).

It is true that the District Court did not make specific findings addressing Laurie’s allegations concerning Michael’s religious beliefs. However, the court likewise did not make specific findings concerning Michael’s allegations that reflected poorly on Laurie’s parenting abilities.

The court set forth the factors to be considered under § 40-4-212, MCA. Then, rather than making specific findings concerning each and every allegation raised by Michael and Laurie, the court summarized its observations of the evidence presented as follows:

There is no adequate evidence of physical, emotional, sexual, drug or alcohol abuse against either party. Both parties have provided care for Jesse and appear to be fit and proper custodians under the statutory joint custody provisions.
Jesse has been cared for by both parents at different times. The Father has been a primary caretaker of Jesse from the time of birth as well as during portions of these proceedings and no adequate challenge to his ability to do so has been made by the Mother or any other witness at the hearing.

The District Court heard Laurie’s allegations concerning Michael’s religious practices. Applying the statutory factors, the court found that there were no adequate challenges to Michael’s ability to care for Jesse. The court set forth the essential and determining facts upon which it based its conclusion. It is not bound to make a specific finding regarding every allegation by a party.

In Frazier v. Frazier (1984), 208 Mont. 150, 676 P.2d 217, the district court failed to make specific findings as to why it accepted one party’s property valuation rather than that of the other party. This Court stated:

It is not the lack of specific findings which constitutes reversible error, but the lack of substantial evidence to support the judgment. We look both to the District Court’s express reasoning and the evidence in the record to determine whether ample evidence exists.

Frazier, 676 P.2d at 219-20.

A review of the entire record, not merely Laurie’s allegations concerning Michael’s religious beliefs, reveals that the District Court’s findings were supported by substantial credible evidence. While both parties presented testimony that reflected negatively on the other’s parenting abilities, independent home evaluations found both Laurie and Michael to be suitable parents.

Sarah Seiler, the court-appointed social worker, performed a home evaluation of Michael. Seiler questioned Ken McCallum, the pastor of the Cornerstone Community Church. Seiler also made several home visits and observed Michael’s interaction with Jesse. Following her evaluation, she determined that there were no “bizarre activities going on” at the Cornerstone Community Church but rather it was merely a fundamentalist church. Seiler concluded that Michael was a suitable residential custodian for Jesse.

After a thorough review of the record, we conclude that the court did not err in its application of § 40-4-212, MCA, and that there is substantial credible evidence to support its findings.

Issue 2

Did the District Court err in determining that Laurie had previously denied Michael’s access to visitation?

In addition to the factors set out in § 40-4-212, MCA, a district court should consider which parent is more likely to allow frequent and continuing visitation when deciding custody matters. In re the Marriage of Converse (1992), 252 Mont. 67, 826 P.2d 937. The District Court stated, in its findings of fact,

[t]he Father also shows a greater ability to cooperate in his parental role, particularly as it relates to his ability to allow Jesse frequent and continuing contact with his Mother. The Mother’s previous demands upon Father regarding visitation has had the effect of denying visitation to Father and does not speak to her ability to cooperate as primary custodian.

The evidence presented at trial supports the court’s finding.

During cross-examination of Laurie, the following exchange took place regarding restrictions place on Michael’s visitation:

Q. Another restriction that you imposed is that he be away from work and spend time with Jesse if he was to have visitation?
A. I did. I thought if he was going to spend time with him, that that would be best for Jesse, but I didn’t want to be unreasonable.
Q. You were working while you had Jesse?
A. Yes.
Q. But imposed a condition of visitation that he not work; isn’t that right?
A. I guess I probably did. Maybe that wasn’t the best idea in the world. That is what I did, but the reason I thought that, he had only a month with him. I don’t know that I would have been so mean to hold him to it or anything like that.

The record evidences other restrictions imposed by Laurie on Michael’s visitation rights, including that he have nothing to do with the Cornerstone Community Church.

We conclude that there was substantial credible evidence to support the District Court’s finding that Laurie placed restrictions on Michael’s visitation rights during the separation. We affirm the decision of the District Court.

JUSTICES GRAY, TRIEWEILER and NELSON concur.

JUSTICE LEAPHART,

dissenting.

I dissent. I would reverse and remand for specific findings on Laurie’s allegations that Michael’s religious beliefs adversely affect Laurie’s relationship with Jesse. The Court cites Lorenz v. Lorenz (1990), 242 Mont. 62, 788 P.2d 328, for the proposition that a district court need not make specific findings on each statutory factor in determining best interest of children under § 40-4-212, MCA, but need only address the essential and determining facts upon which it rests its conclusion. I do not disagree with that proposition. However, I do believe that the district court must address the allegations which are at the heart of the dispute. In the case at bar, Laurie’s main contention is that if Michael exposes Jesse to the teachings of the Cornerstone Community Church, that exposure will adversely impact on Jesse’s relationship with his mother. Michael, on the other hand, contends that Laurie should not be designated the residential parent because she, in the past, restricted Michael’s access to visitation. The District Court chose to specifically make findings as to Michael’s contention but not to address Laurie’s contentions about religious upbringing.

It appears from the transcript that the District Court, although listening to Laurie’s testimony and proof on the question of religious teachings, took the position that religion is beyond the pale of the court’s scrutiny. I disagree. Considerable psychological and/or physical harm can be inflicted in the name of religion. When sufficient evidence is produced to raise questions as to whether particular religious practices are adversely affecting a child’s relationship with a parent, it is incumbent upon the district court to address those issues and make finding as to the allegations.

Montana law provides that the custodial parent may determine the child’s religious training “unless the court after hearing finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or his emotional development significantly impaired.” Section 40-4-218(1), MCA. This Court has recognized the right of parents to direct the religious upbringing of their children. In re Marriage of Gersovitz (1989), 238 Mont. 506, 509, 779 P.2d 883, 885; citing Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. However, the Court noted that, “courts will examine religious practices which interfere with the child’s general welfare. [Citing authority.] A question of religious education must be strictly limited to the context of the best interests of the minor child.” Marriage of Gersovitz, 779 P.2d at 885. In Marriage of Gersovitz, the child’s father was a practicing Jew while the mother was non-Jewish. The district court awarded residential custody to the mother and, in the interests of the philosophy of joint custody, provided that neither parent should have the exclusive right to determine the child’s religious education and affiliation. The father appealed contending that the child should be raised in the Jewish tradition and that custody with the non-Jewish mother prevents the development of that tradition. This Court rejected that argument and found that the district court’s order relating to religion was in the child’s best interests. The Court concluded that an award of custody to the father for the purposes of religious education should not dominate other elements which comprise the best interests of the child. Marriage of Gersovitz, 779 P.2d at 885.

The Supreme Court of North Dakota recently addressed a similar situation in Leppert v. Leppert (N.D. 1994), 519 N.W.2d 287, in which the mother belonged to a small religious sect run by her father, Winrod. Her husband, (the father of the children) was once a follower of Winrod but had ceased following his teachings. The district court had awarded custody of two of the minor children to the father and custody of the other three children to the mother. The father appealed the custody award of the three children to the mother. The North Dakota Supreme Court noted that there was testimony at trial supporting the father’s contention that the mother was poisoning the children’s relationship with the father and his family. The Supreme Court concluded that the district court erred in failing to consider the harmful impact of the mother’s beliefs when determining the best interests of the children. Holding that religious conduct which may harm the child, physically or emotionally, is subject to judicial scrutiny, the North Dakota court said:

Although we agree with the district court that Quinta [the mother] must not be discounted from consideration as a custodial parent simply because of her religious beliefs, this does not mean her religiously motivated actions, which are emotionally and physically harmful to the children, should be ignored when determining the children’s best interests. Such a holding would immunize from consideration all religiously motivated acts, no matter what their impact on the children. Carl E. Schneider, Religion and Child Custody, 25 U.Mich. J.L. Ref. 879, 888 (1992).

Leppert, 519 N.W.2d at 290.

The North Dakota court went on to point out that, consideration of the possible harmful impact of a parent’s religion when determining custody is not meant to punish the parent.

The only reason for any consideration of religious beliefs when determining the best interests of the child is to take into account any harmful impact the belief system may have on the child. The best interests factors enumerated in § 14-09-06.2 are secular in nature, and the court’s functions do not include determining the road to salvation. Although secular courts have no place deciding one religion is better than another, Schneider, supra, at 884, they do have the duty of objectively determining whether a belief system’s secular effects are likely to cause physical or emotional harm to children.

Leppert, 519 N.W.2d at 291.

In Leppert, the district court had ignored these factors because they were religiously motivated. The North Dakota Supreme Court reversed: “Applying the correct standard for considering the adverse impact that Quinta’s beliefs are likely to have on the children, it is in the best interests of all five children that their physical custody be with Joel.” Leppert, 519 N.W.2d at 291.

In the same vein, the Colorado Supreme Court has held: “While courts must remain sensitive to first amendment concerns, a court in a custody proceeding must not blind itself to evidence of religious beliefs or practices of a party seeking custody which may impair or endanger the child’s welfare.” In re Marriage of Short (Colo. 1985), 698 P.2d 1310, 1313.

Religious upbringing is clearly not beyond the scope of judicial scrutiny. Rather, it is a matter which the courts will (and should) examine to determine whether the religious practices interfere with the child’s welfare or significantly impair his/her emotional development.

Other than what I have read in this record, I have no knowledge of the beliefs and teachings of the Cornerstone Community Church. Furthermore, it is not my function to debate the merits of different religions or show preference to any particular faith. However, there is testimony in the record indicating that the church teaches that women are not allowed any authority, and that men must be allowed to make all the decisions. One witness, a ten-year member of the church, had to undergo an exorcism to rid herself of the “evil unsubmissive spirits” — the spirits which caused her to speak up for herself and to exercise authority rather than completely submit to her husband. Further, there is testimony that the church believed that Laurie Wang was possessed by demons and therefore subjected her to an exorcising ritual. The District Court did not determine whether, in its judgment, there was any truth or significance to this testimony. The court did, however, enter Findings of Fact and Conclusions of Law which provide:

Neither [parent] shall either directly or indirectly cause Jesse to loose respect for or alienate his affection to either parent. The parents shall cast each other in the most favorable light before the child and shall recognize the great importance of the parents/child relationship. Additionally, both parents shall:
c. Encourage the free and natural development of love and respect for both parents and do nothing which may estrange Jesse from the other parent, or injure the opinion of the child to the other parent; ....

If there is any validity to Laurie’s allegations that Michael is taking Jesse to a church which teaches Jesse that his mother is possessed by demons and that she, in contrast to the male of the species, is a lesser, subservient human being, then there is a very serious question as to whether those teachings are in direct contravention of the court’s directive that both parents will foster love and respect for the other parent and will do nothing which will estrange Jesse from the other parent or injure the child’s opinion of the other parent.

Whether under the guise of religion or not, any indoctrination of a minor child which undermines a child’s respect for his/her mother because she is a woman, subverts the child’s interaction and interrelationship with that parent, contrary to § 40-4-212(1)(c), MCA, and the best interests of the child.

In response to Michael’s allegations about Laurie’s uncooperativeness, the District Court did find that Michael shows a greater ability to cooperate in his parental role “particularly as it relates to his ability to allow Jesse frequent and continuing contact with his Mother.” Having addressed the issue of frequency of Jesse’s contacts with his mother, it is incongruous to then avoid the more substantive issue of whether Jesse, despite frequent contact with his mother, is being, taught to disrespect and fear his mother as a subservient and demon-possessed person. Given that the trial court required the parties to foster the child’s love and respect for the other parent, the court should have made specific findings as to whether the religious upbringing at the Cornerstone Community Church would be consistent with that directive.

I would reverse and remand for specific findings of fact on the question of what impact, if any, the religious training has on Jesse’s relationship with his mother.


source: Caselaw Access Project

author:
JUSTICE LEAJPHART
      JUSTICE WEBER

license: Public Domain

text:
    MARIA CONTRERAZ, LISA SCOTT, CARMEL ROMERO, ISABEL GAYLOR, JOHN CUELLAR, JOE CUELLAR, JESSE CUELLAR, MARIAN ESTRADA, and JOSEY GUTIERREZ, Plaintiffs and Appellants, v. MICHELOTTI-SAWYERS and NORDQUIST MORTUARY, INC., and DAHL FUNERAL CHAPELS, Defendants and Respondents.
    No. 94-370.
    Submitted March 9, 1995.
    Decided June 1, 1995.
    52 St.Rep. 454.
    896 P.2d 1118.
    271 Mont. 300.

      For Appellants: W. Scott Green; West Patten Bekkedahl & Green Billings (argued).
    For Respondents: Guy W. Rogers; Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings (argued for Michelotti-Sawyers); Rodney T. Hartman; Herndon, Hartman, Sweeney & Halverson, Billings (argued for Dahl Funeral Chapels).
    For Amicus Curiae: Joe Seifert; Keller, Reynolds, Drake, Johnson & Gillespie, Helena (argued for Montana Funeral Directors Association).
   JUSTICE LEAJPHART

delivered the Opinion of the Court.

Maria Contreraz (Maria) and eight family members (Appellants) appeal from an order of the Thirteenth Judicial District, Yellowstone County, granting Respondents’ motion for summary judgment. The District Court concluded (1) that Appellants are not entitled to emotional distress damages resulting from Respondents’ improper embalming of Appellants’ mother’s body; (2) that Appellants are not entitled to emotional distress damages for breach of contract; and (3) that Appellants are not entitled to recover damages for breach of contract. We reverse in part and affirm in part.

FACTS

The Parties

Basilia Cuellar (Cuellar) died on March 10, 1993. The Appellants are Cuellar’s children, Maria Contreraz, Lisa Scott, Carmel Romero, Isabel Gaylor, John Cuellar, Joe Cuellar, and Jesse Cuellar, and grandchildren Marian Estrada and Josey Gutierrez. Appellants had pooled money for three years to pay for Cuellar’s funeral expenses. Maria acted as spokesperson for Appellants, and on March 10,1993, Maria contacted Michelotti-Sawyers and Nordquist Mortuary, Inc. (Michelotti-Sawyers). Michelotti-Sawyers picked up and embalmed Cuellar’s body. Maria alleges a Michelotti-Sawyers employee offended her. On March 11,1993, Maria called Michelotti-Sawyers and allegedly was treated rudely by another employee while discussing funeral arrangements. On March 15, 1993, Michelotti-Sawyers sent Maria a letter apologizing for any perceived rudeness. MichelottiSawyers denies it treated Maria with disrespect.

Approximately thirty minutes after Maria’s conversation with Michelotti-Sawyers, Maria contacted Dahl Funeral Chapels (Dahl) to have it pick up Cuellar’s body. No contract was signed between Maria and Michelotti-Sawyers. Maria was the only Appellant to sign a contract with Dahl for Cuellar’s funeral.

Michelotti-Sawyers was aware that many of Cuellar’s children would contribute to Cuellar’s funeral expenses. Dahl employee John Dahl was also aware that Maria signed the contract with Dahl on behalf of other family members.

On March 11,1993, during a family visitation with Cuellar’s body, Carmel, John, and Joe observed that clothes on the right side of the body had a red/rust stain, approximately 2-4 inches wide by 18 inches long. Family members alerted Dahl’s evening attendant who contacted Dahl’s mortician. The mortician arrived within approximately two minutes and informed family members that he would remedy the problem when family members left. Family members remained with the open casket for approximately two hours. The stain came from a surgical incision which was leaking embalming fluid. Although the incision was covered by a four-inch square bandage, it had gone unnoticed by both Michelotti-Sawyers and Dahl. Dahl employees repaired the leak site, placed clean clothes on the body, and cleaned the coffin.

The remainder of the funeral arrangements proceeded as planned and Appellants were satisfied with the funeral. The family, through Maria, paid Dahl’s bill in full, including the costs Michelotti-Sawyers charged for embalming. During a telephone conversation between Michelotti-Sawyers employee Mike Nordquist and and John Dahl, Nordquist conveyed that Michelotti-Sawyers would not charge for the embalming, and Dahl refunded to Maria the amount paid for embalming.

Appellants filed suit against Michelotti-Sawyers and Dahl alleging negligent preparation of Cuellar’s body, emotional distress damages, and breach of contract. Appellants filed a motion for partial summary judgment and Respondents filed a motion for summary judgment. Appellants, Michelotti-Sawyers, and Dahl submitted briefs and a hearing was conducted. In an order dated June 7, 1994, the District Court denied Appellants’ motion and granted Respondents’ motion. This appeal followed.

ISSUES

1. May damages for emotional distress be recovered for negligent conduct?

2. May emotional distress damages be recovered in a breach, of contract action?

3. May Appellants recover contract damages?

STANDARD OF REVIEW

When reviewing an order granting summary judgment, this Court applies the same standard of review as that utilized by the trial court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. McCracken, 788 P.2d at 894.

I

May damages for emotional distress be recovered for negligent conduct?

Negligent Conduct Causing Emotional Distress

The District Court applied what it concluded to be the majority view, that to recover damages for emotional distress, funeral home conduct in handling a dead body must be willful, wanton, or malicious. The District Court noted that it is undisputed that the funeral homes did not act with malicious or wanton conduct. Michelotti-Sawyers argues that in order to recover for negligent infliction of emotional distress, the distress must be accompanied by physical injury. We disagree.

We recently recognized the independent tort of negligent infliction of emotional distress in Sacco v. High Country Independent Press, Inc. (1995), [271 Mont. 209], 896 P.2d 411 (1995). In Sacco, we held that “[a] cause of action for negligent infliction of emotional distress will arise under circumstances where serious or severe emotional distress to the plaintiff was the reasonably foreseeable consequence of the defendant’s negligent act or omission.” Sacco, at_, 896 P.2d at_. In Sacco we adopted the definition of severe or serious emotional distress from the Restatement (Second) of Torts, § 46, comment j at 77-78. Sacco,at__, 896 P.2d at__That opinion further detailed the Montana case history regarding our establishment of the tort of negligent infliction of emotional distress. The question then becomes how to apply the rule established in Sacco to claims based on negligent handling of dead bodies. Other jurisdictions have considered this issue. In Washington, the Supreme Court rejected the physical injury requirement for mental distress injuries, in favor of measuring a defendant’s liability by:

strictures imposed by negligence theory, i.e., foreseeable risk, threatened danger, and unreasonable conduct measured in light of the danger. [Citation omitted.] Mental suffering, to be compensable, however, must at least be manifested by objective symptoms. [Citation omitted.]

Corrigal v. Ball & Dodd Funeral Home, Inc. (Wash. 1978), 577 P.2d 580, 582. Michigan has recognized a particular interest in “knowing that the deceased has been given a comfortable and dignified resting place.” Vogelaar v. United States (E.D. Mich. 1987), 665 F.Supp. 1295, 1306. We reject the conclusion adopted in some jurisdictions that misconduct by a funeral home warrants carving an exception to the “zone of danger” requirement (recovery for emotional distress resulting from viewing the serious injury or death of an immediate family member if the claimant was within the zone of danger). Kimelman v. City of Colorado Springs (Colo. App. 1988), 775 P.2d 51, 52.

In Versland v. Caron Transport (1983), 206 Mont. 313, 671 P.2d 583, we recognized the right to collect damages for negligent infliction of emotional distress when a plaintiff suffered direct emotional distress from witnessing the death or serious injury of a spouse even though not within the zone of danger. Similarly, in this case we recognize the right to damages for negligent infliction of emotional distress resulting from the mishandling of a corpse. Our holding here does not create a new cause of action. Rather, we are applying our decision in Sacco to include negligent infliction of emotional distress in situations where the emotional distress resulted from negligent treatment of a dead body.

Negligent infliction of emotional distress claims focus on impacts to the living which result from mistreatment of the decedent’s body. First, where the body is harmed and the decedent’s survivors are aware, they may be impacted (emotional or physical impact) by the indignity and/or mistreatment. See, e.g., State v. Powell (Fla. 1986), 497 So.2d 1188 (wrongful removal of corneas); Whitehair v. Highland Memory Gardens, Inc. (W.Va. 1985), 327 S.E.2d 438 (negligent disinterment). Secondly, when the body is harmed, the survivor’s plans for disposition of the body may be altered or made impossible. See, e.g., Courtney v. Saint Joseph Hospital (Ill. App. 1 Dist. 1986), 500 N.E.2d 703 (refrigerator malfunction leaves body unfit for open casket wake and funeral); Thompson v. Duncan Bros. Funeral Homes, Inc. (N.Y. Co. 1982), 455 N.Y.S.2d 324 (negligent embalming leaves body decomposing, leaking fluid, and odoriferous).

Historically, courts have required that physical injury accompany mental disturbance in order to recover under negligence causes of action. Prosser and Keeton On the Law of Torts (W. Page Keeton et al., (5th Ed. 1984) § 54, page 361) (Prosser). Prosser concludes, however, that cases involving negligent mishandling of a corpse are special and that many dead body cases, including negligent embalming, are likely to involve “genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.” Prosser, § 54, page 362. The American Jurisprudence (2d) (Am.Jur.) provides that:

Courts have, to a great extent, based civil liability for wrongful acts with regard to a dead body on the interference with the right of burial. Thus, the courts have generally recognized that interference with the right of a person to bury the body of his spouse or kin is an actionable wrong ....

22A Am.Jur.2d Dead Bodies § 35 (1965). The decisions cited by the Am.Jur. involve physical manifestations or harm to the decedent’s body that directly affect the availability of an open casket viewing or funeral. These include mud and water damage to the body (Lamm v. Shingleton (N.C. 1949), 55 S.E.2d 810) and lack of refrigeration causing body decay (Courtney v. Saint Joseph Hospital (Ill. 1986), 500 N.E.2d 703). Many dead body cases fall into categories, such as improper delivery and transport of bodies (including loss); mutilation, dissection, and removal of body parts; unauthorized autopsies; wrongful interment and wrongful disinterment (and reinterment). See generally 22A Am.Jur.2d Dead Bodies §§ 37-39.

Based on our holding in Sacco and the foregoing discussion, we hold that one who negligently removes, withholds, mutilates, embalms, provides funeral, burial, or crematory services, or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to the deceased person’s close relatives for resulting emotional distress. This negligent infliction of emotional distress shall be appraised based on the test established in Sacco and adopted above. See Sacco, at___, 896 P.2d at___.

Standing to Sue

In the instant case, the District Court concluded that “[a] corpse is considered quasi-property and can not be owned by a family member.” 22 Am.Jur.2d Dead Bodies §§ 2 and 3. This quasi-property delineation has been used in other jurisdictions to establish standing to assert the cause of action for negligent mishandling of a corpse. We reject the quasi-property approach and general rule that standing is limited to the person who had the legal right to the disposition of the body. In Carney v. Knollwood Cemetery Assn. (Ohio App. 1986), 514 N.E.2d 430, 434-35, the Ohio court reasoned that plaintiffs in mistreated body cases do not seek to vindicate any “quasi property right” but rather sue because of mental anguish caused by “the realization that disrespect and indignities have been heaped upon the body of one who was close to [them] in life.” The Wisconsin Supreme Court has held that:

The basis for recovery of damages is found not in a property right in a dead body but in the personal right of the family of the deceased to bury the body. The mutilating or disturbing of the corpse is held to be an interference with this right and an actionable wrong.
The law is not primarily concerned with the extent of physical injury to the bodily remains but with whether there were any improper actions and whether such actions caused emotional or physical suffering to the living kin. The tort rarely involves pecuniary injury; the generally recognized basis of damages is mental suffering.

Scarpaci v. Milwaukee County (Wis. 1980), 292 N.W.2d 816, 820-21.

The Idaho Supreme Court has held that, after cremated remains were discovered not to be those of the decedent, the spouse was able to recover but the son could not recover because he was not the surviving spouse or next surviving kin. Brown v. Matthews Mortuary, Inc. (Idaho 1990), 801 P.2d 37, 45. In contrast to the Idaho court, the California Supreme Court concluded that mortuary services are performed for the benefit of family members other than the contracting party or person responsible for disposition of the decedent’s body. Christensen v. Superior Court (Cal. 1991), 820 P.2d 181, 191. The mortuary in Christensen “assumed a duty to the close relatives of the decedents for whose benefit they were to provide funeral and/or related services. They thereby created a special relationship obligating them to perform those services in the dignified and respectful manner the bereaved expect of [a mortuary].” Christensen, 820 P.2d at 193.

The court in Christensen stated:

The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm. [Citation omitted.]

Christensen, 820 P.2d at 194. In the instant case, the children and grandchildren of the decedent sued based on their emotional distress. The grandchildren testified that they had been raised as children by Cuellar. We hold that both the children and grandchildren, as “close relatives,” have standing to sue.

Michelotti-Sawyers further argues that only those parties who actually saw the stain on the body should be allowed to recover. This is an unreasonable and arbitrary limitation. Upholding such a rule would create an immunity that could protect mortuaries from their egregious conduct while barring recovery to those persons possibly suffering the greatest harm. Christensen, 820 P.2d at 191. It is reasonable that a family member would become emotionally distressed after learning of, but not seeing, a debasing, humiliating, or disrespectful act committed to the decedent’s body. Concluding otherwise would act as a shield to those mishandling or abusing the decedent’s body as part of the body’s preparation for burial, cremation, etc. Regarding seeing the misconduct to the body, the California Supreme Court stated:

When misconduct in the provision of funeral-related services occurs in secret and its consequences are not apparent to members of the decedent’s family, permitting recovery for the emotional distress suffered by all close family members for whom mortuary services are performed when the misconduct comes to light, regardless of which family member held the statutory right or actually contracted for the services, should be allowed.

Christensen, 820 P.2d at 193. In the instant case, only three of the Appellants actually saw the stain. We hold that a party need not necessarily see the actual injury to the decedent’s remains to maintain standing to sue for the resulting emotional distress. We further adopt the reasoning applied in Christensen that the decedent’s close family members, for whom the funeral services were intended, have standing to sue.

Applying this standard to the Appellants’ claims, we hold that the District Court improperly granted Respondents’ motion for summary judgment.

II

May emotional distress damages be recovered in a breach of contract action?

Appellants acknowledge that recovery for emotional distress damages is not normally permitted in a breach of contract action but argue that mortuary contracts are so unique as to warrant recovery for contracting parties and the decedent’s family. We disagree. Section 27-1-310, MCA, provides that:

Damages for emotional or mental distress prohibited in contract actions — exception. In an action for breach of an obligation or duty arising from contract, recovery is prohibited for emotional or mental distress, except in those actions involving actual physical injury to the plaintiff. Emotional or mental distress, as used in this section, includes mental anguish or suffering, sorrow, grief, fright, shame, embarrassment, humiliation, anger, chagrin, disappointment, or worry.

This statutory language clearly prohibits the recovery Appellants seek. We have held that in computing damages resulting from breach of contract, “mental anguish is not, as a general rule, allowed .... the courts evidently believe that the mental suffering which accompanies a breach of contract is too remote for compensation.” Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 49, 776 P.2d 488, 505; citing 22 Am.Jur.2d Damages § 195 (1965). Citing § 27-1-310, MCA, we further noted that “Montana follows the general rule by prohibiting damages for emotional or mental distress in most contract actions.” Meech, 776 P.2d at 505. This issue is controlled by statute: We hold that Appellants may not recover for emotional distress in a pure contract claim.

Ill

May Appellants Recover Contract Damages?

Breach of Contract

Appellants argue that the failure to properly embalm and/or the presenting of the body for viewing in a stained condition was a breach of contract. In granting summary judgment against Appellants’ claim for contract damages, the District Court concluded that Maria was refunded the embalming costs, that Appellants were satisfied with the remainder of the funeral and burial, and that Appellants failed to present identifiable claims for economic damages arising from the incident. We hold that whether or not there was a breach of contract is a question properly decided by the finder of fact.

There is no dispute that Maria was the only family member to have contact with Michelotti-Sawyers and the only Appellant to sign a contract with Dahl. Respondents do not deny that Maria formed an oral contract with Michelotti-Sawyers and a proper written contract with Dahl. Further, Respondents refunded to Maria all embalming costs. Appellants, however, argue that the leak and stain were a detriment to the entire funeral and therefore the damages are not limited to the costs of embalming.

Section 27-1-311, MCA, defines breach of contract as follows:

For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom. Damages which are not clearly ascertainable in both their nature and origin cannot be recovered for a breach of contract.

The issue becomes whether the leak and resultant stain sufficiently “damaged” the funeral such that the contract was breached. It is for the trier of fact to determine whether or not the leak and stain resulted in an actual detriment compensable by damages, as established by § 27-1-311, MCA.

Standing for Breach of Contract Claims

Appellants argue that each Appellant established an individual contract with Respondents and therefore, each is entitled to recover damages for breach of contract. We disagree.

Appellants contend that Maria acted as an agent for the other Appellants when she contracted with each Respondent. Montana statute defines agency by the following relevant statutes:

28-10-101. Definitions of agent and agency. An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.
28-10-103. Actual versus ostensible agency. An agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him.
28-10-201. How agency may be created. An agency may be created and an authority may be conferred by a precedent authorization or a subsequent ratification.

By the nature of their claims, Appellants assert that Maria represented the other family members (principals) in dealing with the Respondents (third persons). Appellants do not allege an actual agency or a subsequent ratification.

“Where the undisputed evidence concerning the status of the parties defendant to each other is reasonably susceptible of but a single inference, the question of their legal relationship ... is one purely of law.” Estates of Milliron v. Francke (1990), 243 Mont. 200, 204, 793 P.2d 824, 827. Appellants failed to present sufficient evidence to give rise to a genuine issue of material fact regarding an agency relationship between Maria and the other Appellants. See Estates of Milliron, 793 P.2d at 827. Appellants cite evidence in the record that both Respondents were aware that the Appellants had pooled their funds to pay for the funeral. Respondents do not contest Appellants’ assertion that each Appellant contributed to the costs of funeral expenses. These facts, however, are not sufficient to establish an agency relationship. Because only Maria established a contract with Respondents, we hold that only Maria may maintain a claim for breach of contract.

THE LIABILITY OF DAHL FUNERAL CHAPELS

Dahl contends that since the allegedly negligent embalming was conducted by Michelotti-Sawyers, Dahl cannot be held liable under a negligence theory or breach of contract theory. Appellants, however, contend that Dahl assumed a duty to properly prepare the body for viewing during the funeral services and Dahl breached that duty when it negligently failed to inspect the body and discover the leaking surgical wound. We hold that both Dahl and Michelotti-Sawyers assumed a duty to perform embalming and/or funeral services in a dignified and respectful manner.

Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

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

JUSTICE WEBER

specially concurs and dissents as follows:

The problem area for me is raised by the following portion of Issue I of the opinion:

Based on our holding in Sacco and the foregoing discussion, we hold that one who negligently removes, withholds, mutilates, embalms, provides funeral, burial, or crematory services, or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to the deceased person’s close relatives for resulting emotional distress.

In the beginning of the holding, the opinion states that it is based on the foregoing discussion, which does refer to various authorities in connection with negligent treatment of a decedent’s body. The first of such references speaks of impacts to the living which result from mistreatment of decedent’s body, such as situs of harm to the body and the impact to the survivors who are aware of such harm. The cases cited are those involving wrongful removal of corneas, negligent disinterment, and also cases where the body has been harmed by interfering with the disposition of the body — such as refrigerator malfunction, negligent embalming, leaving body unfit for funeral service and burial because of body decomposition. None of such facts are present in this case.

Next reference is made to 22 Am.Jur.2d, Dead Bodies, § 37, which emphasizes that courts have based liability on wrongful acts with regard to a dead body on the interference with the right of burial— again in this case there has been no actual interference with the right of burial. The decisions cited by Am. Jur. involved harm to the body which directly affects the availability of open casket viewing, including mud and water damage to the body, lack of refrigeration causing body to decay, loss of body, mutilation, dissection, and removal of body parts, unauthorized autopsies, and wrongful interment and wrongful disinterment. Again, I emphasize that these cases involve physical manifestations or harm to the body which interfere with the right of burial. Such facts are not present in this case.

In the present case, there has been at most negligent embalming and negligent display of such negligently embalmed body. Those facts go beyond any of the authority upon which we state we are relying. I agree with the holding of the opinion to the extent that it does grant recovery under the specific facts of this case. However, I do not agree with the very broad holding as above quoted.

In substance, I believe we should hold that the party who negligently embalmed the body by failure to close a surgical incision and thereby prevent leaking of embalming fluid, and one who negligently displays such negligently embalmed body, are subject to liability to the deceased person’s close relatives for resulting emotional distress. I believe our holding should be limited to the specific facts present in this case as we are in fact going further than the cases upon which we rely.

I specifically dissent from the holding to the extent that it holds that one who negligently removes, withholds, mutilates, provides funeral, burial, or crematory services, or operates upon the body of a dead person or prevents its proper interment or cremation, is subject to liability. While I would agree that certain of these types of conduct are subject to liability under the foregoing authority, those facts are not presently before us and our statements are essentially dicta. In particular, I dissent from the key aspect of such holding which can be boiled down to a holding that one who negligently provides funeral services is subject to liability. At that point, all the rest of the standards are eliminated and we have gone far beyond any of the authority upon which we rely.

I would therefore limit the holding in this case as above specifically set forth. I concur with the remaining parts of the opinion.


author: CHIEF JUSTICE TURNAGE

text:
    HUGHIE F. STROOP, Plaintiff, Respondent and Cross-Appellant, v. JAMES C. DAY and COLLEEN M. DAY, Defendants, Appellants and Cross-Respondents.
    No. 94-277.
    Submitted on Briefs March 10, 1995.
    Decided June 1, 1995.
    52 St.Rep. 461.
    896 P.2d 439.
    271 Mont. 314.

      For Appellants: Lon T. Holden, Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondent: Jon S. McCarty, Scott & Tokerud, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Hughie E. Stroop filed a complaint in the Eighth Judicial District Court, Cascade County, against James C. Day and Colleen M. Day (the Days), alleging that they were liable for damages he sustained when he was bitten by their dog. Stroop’s complaint alleged negligence and violation of § 27-1-715, MCA. Following trial, the jury found that the Days were not negligent nor had they violated § 27-1-715, MCA. Stroop moved for a new trial on his statutory claim. The District Court granted his motion. The Days appeal the decision of the District Court granting Stroop’s motion for a new trial. Stroop cross-appeals the District Court’s denial of his motion in limine for an order ruling that contributory negligence does not apply to the liability of defendants under § 27-1-715, MCA. We affirm in part and reverse in part.

The issues are:

1. Did the District Court err in granting Stroop’s motion for a new trial?

2. Did the District Court err in denying Stroop’s motion in limine for an order ruling that contributory negligence does not apply to the liability of defendants under § 27-1-715, MCA?

Stroop and the Days lived across an alley from one another in Great Falls, Montana. On May 19, 1990, Stroop was working in his backyard. He observed James Day in his backyard. Stroop testified that he crossed the alley and approached the Days’ residence to tell Mr. Day about a suspicious looking vehicle he had seen near the Days’ house on the evening of a recent robbery.

The Days’ property was separated from the public alley by a “picket” type fence approximately forty-eight inches high. Stroop stood in the alley next to the Days’ fence. As Day and Stroop conversed, Stroop leaned on the fence, rested his arms on the top horizontal cross-board and extended his hands and forearms into the Days’ property. The Days’ dog, Stogie, ran at Stroop in an aggressive manner. Stroop pulled his hands back from the Days’ property.

Day testified that, after Stogie ran at Stroop, he cautioned Stroop about placing his hands over the fence. Stroop denied receiving any such warning.

Day and Stroop continued their conversation for several minutes. Sometime during their discussion, Stroop again leaned against the Days’ fence, placing his hands and forearms into the Days’ property. When Stroop extended his hands into the Days’ property a second time, Stogie jumped up and bit Stroop’s right hand. The parties dispute the severity of the bite and the extent of the damages suffered.

Stroop filed a complaint against the Days in the Eighth Judicial District Court, Cascade County. Stroop alleged negligence on the part of the Days as well as violation of § 27-1-715, MCA. Following trial, a jury found that the Days were not negligent nor had they violated § 27-1-715, MCA. Stroop moved for a new trial on his statutory claim. The District Court granted Stroop’s motion for a new trial, determining that there was insufficient evidence for the jury to conclude that the Days had not violated § 27-1-715, MCA. The Days appeal the District Court’s granting of a new trial. Stroop cross-appeals the District Court’s determination that contributory negligence is applicable to the statutory claim.

Issue 1

Did the District Court err in granting Stroop’s motion for a new trial?

Pursuant to § 25-11-102, MCA, the District Court determined that there was insufficient evidence to justify the jury’s verdict that the Days had not violated § 27-1-715, MCA. We review a district court’s decision to grant a new trial to determine whether there was a manifest abuse of discretion. Stanhope v. Lawrence (1990), 241 Mont. 468, 787 P.2d 1226. We review the evidence in a light most favorable to the prevailing party to determine whether there was sufficient evidence that reasonable minds might accept as adequate to support a conclusion. Gass v. Hilson (1990), 240 Mont. 459, 784 P.2d 931; Barrett v. Asarco (1990), 245 Mont. 196, 799 P.2d 1078. Section 27-1-715, MCA, reads:

(1) The owner of any dog which shall without provocation bite any person while such person is on or in a public place or lawfully on or in a private place, including the property of the owner of such dog, located within an incorporated city or town shall be liable for such damages as may be suffered by the person bitten regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.
(2) A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America or when he is on such property as an invitee or licensee of the person lawfully in possession of the property. [Emphasis added.] The Days alleged that: 1) Stroop provoked Stogie prior to the

incident or 2) Stroop was not lawfully on or in the Days’ private property at the time of the incident. They argue that if there was sufficient evidence of either of these statutory defenses, the District Court abused its discretion by granting a new trial. We address these arguments in turn.

The Days claim that there were three acts of provocation which led to the dog bite incident. First, approximately four to six weeks before the incident, Stroop chased Stogie out of Stroop’s yard with a steel fence post. Second, on the day of the dog bite, Stroop extended his hands and forearms over the Days’ fence and into “Stogie’s turf.” This led to Stogie’s initial aggressive behavior toward Stroop. Finally, immediately before Stogie bit Stroop, Stroop again extended his hands and forearms over the Days’ fence and into Stogie’s turf.

The Days argue that, absent a defining statute or clear legislative intent, this Court should adopt the plain meaning of the term “provocation.” The Days suggest several dictionary definitions of provocation which include any act that aroused, stimulated or incited a dog to bite an individual. Pursuant to this interpretation of provocation, the Days claim that Stroop’s three acts provoked Stogie into biting.

Stroop argued, and the District Court agreed, that these acts were insufficient, as a matter of law, to satisfy the provocation defense in § 27-1-715, MCA. Stroop claims that under the Days’interpretation of “provocation,” any act or occurrence that caused a dog to bite an individual would become a defense under § 27-1-715, MCA. Thus, only a completely spontaneous attack would violate this section. The “without provocation” defense would thus overshadow the law and would render the statute virtually useless. See Robinson v. Meadows (Ill. Ct. App. 1990), 561 N.E.2d 111.

Stroop suggests that, to further the reasonable intent of the statute, provocation must be more narrowly defined. He argues that a more appropriate definition of provocation would require the victim to intentionally tease, torment or torture the dog.

After reviewing case law from various jurisdictions, we do not believe that either of the parties’ proposed definitions are entirely correct, but rather this issue must be analyzed on a case-by-case basis. Clearly not every occurrence that stimulates a dog to bite an individual should be a defense under § 27-1-715, MCA. Conversely, provocation should not be required to rise to the level of intentional torture to be a valid defense.

In Robinson, the Illinois Court of Appeals addressed this particular concern. In its discussion, the court stated:

Where, as here, the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings, but the words must also be construed with reference to the purposes and objectives of the statute. [Citation omitted.] Where literal enforcement of a statute will result in great injustice which was not contemplated, we will construe the statute to give effect to what must have been reasonably intended by the legislature. [Citation omitted.]
As commonly understood, provocation means an act or process of provoking, stimulation or excitement. ... These definitions are so expansive, however, that, if taken literally, [the Illinois dog-bite statute] could be interpreted to mean that provocation exists whenever any external stimulus has precipitated the attack or injury by an animal, i.e., whenever the animal’s actions are not completely spontaneous.... [W]e believe that so literal an interpretation would render the statute largely meaningless, and yield unjust and absurd results.

Robinson, 561 N.E.2d at 114. The court went on to conclude that the determination of what constituted provocation has generally “proceeded on a case-by-case basis.” Robinson, 561 N.E.2d at 115. Under such an analysis, provocation may include unintentional acts, provided that the attack that followed was not grossly out of proportion to the act of provocation. Wade v. Rich (Ill. Ct. App. 1993), 618 N.E.2d 1314.

We do not dispute the Days’ claim that a dog is capable of remembering specific instances from its past. We nevertheless conclude, as a matter of law, that Stroop’s act of chasing Stogie with a fence post four to six weeks prior to being bitten was not provocation under § 27-1-715, MCA. An incident so remote in time cannot be considered provocation under the terms of this statute.

Similarly, Stroop’s extending his hands and forearms into the Days’ property was not provocation. There was no testimony that Stroop thrust his hands toward the dog or made any quick or threatening gestures. As discussed below, Stroop’s hands were lawfully on the Days’property. Mere presence on the property of another does not amount to provocation. See Smith v. Pitchford (Ill. Ct. App. 1991), 579 N.E.2d 24. Conduct such as Stroop resting his arms on the fence and allowing his hands and forearms to dangle over the Days’ property cannot be considered provocation under any reasonable interpretation of that term.

The Days’ second argument is that Stroop was not lawfully on or in the Days’ property at the time of the bite. The Days argue that, while Stroop may have initially been lawfully on the Days’ property, Day’s warning Stroop to remove his hands from over the fence and Stogie’s aggressive behavior converted Stroop’s permissive presence to nonpermissive presence. The Days claim that, because Stroop was a “trespasser” at the time of the incident, he is barred from recovery under § 27-1-715, MCA.

Stroop argues that he was not a trespasser at the time of the incident. Stroop claims that he was standing in a public alley, with only his hands over the Days’ property. He claims any encroachment onto the Days’ private property was made as either an invitee or a licensee. Therefore, he was in a public place or lawfully in a private place pursuant to the terms of § 27-1-715, MCA.

The jury was instructed as follows:

One who enters upon the premises of another at the express or implied invitation of the owner of the premises is called in law an invitee. An invitation is implied where there is some common interest or mutual advantage gained by the property owner as a result of the individual’s presence.
One who enters upon the premises of another for his own purpose, but with the permission or sufferance of the owner, is called in law a licensee. A license is implied where the object or purpose of the individual’s presence upon the property is the pleasure, convenience or benefit of the individual.

State ex. rel. Burlington Northern, Inc. v. District Court (1972), 159 Mont. 295, 496 P.2d 1152. The jury was properly instructed concerning Stroop’s status as either an invitee or a licensee. The Days presented no facts by which the jury could have concluded that Stroop was not either a licensee or an invitee at the time of the incident. Any admonishment that Stroop should remove his hands from the fence or Stogie’s display of aggressive behavior in the backyard did not revoke Stroop’s status as an invitee or licensee. There was no evidence that Day revoked Stroop’s status as a licensee or invitee. By ignoring Day’s warning and Stogie’s aggressive behavior, Stroop has not barred his claim.

We conclude that the District Court did not err in granting Stroop a new trial. Insufficient evidence was presented at trial that Stroop provoked Stogie. Likewise, there was insufficient evidence that Stroop was not in a public place or lawfully in a private place at the time of the incident. Therefore, there was not a manifest abuse of discretion by the District Court.

Issue 2

Did the District Court err in denying Stroop’s motion in limine for an order ruling that contributory negligence does not apply to the liability of defendants under § 27-1-715, MCA?

The Days argue that this issue is not ripe for decision by this Court because the jury did not reach the issue of contributory negligence at the trial below. Alternatively, the Days claim that contributory negligence is applicable because Stroop pled his statutory claim as negligence per se. Therefore, the plaintiff’s negligence must be compared to the defendants’ negligence to apportion fault.

Stroop argues that the District Court erred by denying his motion in limine for an order ruling that contributory negligence does not apply to the liability of the defendants under § 27-1-715, MCA. Stroop claims that § 27-1-715, MCA, imposes strict liability on dog owners. He argues that liability is therefore limited only by the enumerated defenses provided by that section. Stroop insists that, because he did not provoke Stogie and was lawfully upon the premises, no other conduct may be considered to mitigate the Days’ liability.

We agree with Stroop that § 27-1-715, MCA, imposes strict liability on dog owners. See Seim v. Garavalia (Minn. 1981), 306 N.W.2d 806, 810 (determining that a similar statute imposed strict liability rather than negligence per se). There is a clear split of authority concerning whether the defenses of contributory or comparative negligence should be applicable to strict liability dog-bite statutes. Many jurisdictions have determined that defendants are limited to the defenses enumerated in the statutes, namely that the plaintiff provoked the dog or the plaintiff was a trespasser at the time of the incident. See, e.g., Quellos v. Quellos (Ohio Ct. App. 1994), 643 N.E.2d 1173; Massey v. Colaric (Ariz. 1986), 725 P.2d 1099; Seim, 306 N.W.2d at 811-12; Nicholes v. Lorenz (Mich. 1976), 237 N.W.2d 468.

However, other jurisdictions have determined that the defenses of contributory negligence, comparative negligence or comparative fault are consistent with their strict liability dog-bite statutes. See, e.g., Hayes v. McFarland (La. Ct. App. 1988), 535 So.2d 568; Howard v. Allstate Insurance Co. (La. 1988), 520 So.2d 715; Ambort v. Nowlin (Ark. 1986), 709 S.W.2d 407; Budai v. Teague (N.J. Super.L. 1986), 515 A.2d 822.

After reviewing these cases and the applicable statutory language, we hold that contributory negligence is not a defense to a claim brought under § 27-1-715, MCA. As previously stated, the only defenses provided within § 27-1-715, MCA, are that the dog was provoked or that the defendant was a trespasser. In Massey, the Arizona Supreme Court stated:

A.R.S. § 24-378 permits a person injured by a dog while at large to recover simply by proving that the statute has been violated. If the elements of the statute are satisfied, the legislature has decided to impose liability without fault. The only defense provided is provocation, A.R.S. § 24-523, with the common law defenses of contributory negligence and assumption of risk superseded.

Massey, 725 P.2d at 1100-01.

We find the reasoning of the Massey court persuasive. Section 27-1-715, MCA, provides that dog owners are liable for damages caused by their dogs, regardless of the owners’negligence. The statute lists two defenses. If the victim can establish that he or she was bitten by a dog and the dog’s owner is unable to establish either of the enumerated defenses, the owner is liable. Ideas of comparative or contributory negligence are inapplicable under such a strict liability scheme.

In sum, we conclude that the District Court did not abuse its discretion in granting a new trial. However, we conclude that the District Court erred in denying Stroop’s motion in limine for a ruling that contributory negligence does not apply to a claim brought under § 27-1-715, MCA.

We therefore affirm in part and reverse in part the decision of the District Court and remand for further proceedings consistent with this opinion.

JUSTICES GRAY, TRIEWEILER, HUNT, NELSON, WEBER and LEAPHART concur.


author: JUSTICE NELSON JUSTICE LEAPHART,

text:
    IN THE MATTER OF THE CONSERVATORSHIP OF: ANDREW J. KOVATCH, A Protected Person.
    No. 94-379.
    Submitted on Briefs February 9, 1995.
    Decided June 1, 1995.
    52 St.Rep. 465.
    896 P.2d 444.
    271 Mont. 323.

      For Appellant: MaxonR. Davis, Cure, Borer & Davis, Great Falls.
    For Respondent: Chris Christensen, Keil & Christensen, Conrad.
   JUSTICE NELSON

delivered the Opinion of the Court.

The appellant, Ann Cogswell, appeals from an order of the District Court for the Ninth Judicial District, Pondera County, denying her petition to be appointed conservator for her father, Andrew Kovatch. We affirm.

The sole issue on appeal is whether the District Court erred in finding that Andrew’s property is not being wasted or dissipated and that appointment of a conservator for Andrew’s estate is unnecessary.

Ann Cogswell and Merrill Kovatch are the only children of Andrew Kovatch, aged 88. Andrew, who has been widowed since 1990, resides in a nursing home and is unable to manage his affairs and property due to mental deficiency and physical illness or disability. Andrew’s principal asset is 1,480 acres of farmland in Toole County of which 1,371 acres are enrolled in the Conservation Reserve Program (CRP). The acreage was put into the program in 1988 and the income is split between Andrew as owner and Merrill as operator with Andrew receiving $27,580.00 per year and Merrill receiving $27,500.00 per year.

On February 1,1991, Andrew granted Merrill a Power of Attorney to handle all of Andrew’s business affairs. Under the authority of this Power of Attorney, Merrill pays Andrew’s real estate taxes and living and care expenses at the nursing home from Andrew’s checking account. In addition, Merrill has transferred all certificates of deposit and stocks and bonds into joint tenancy between Andrew, Ann and himself. Merrill has also made gifts on Andrew’s behalf to Ann and himself.

On January 4, 1994, Ann filed a petition in District Court in Pondera County to be appointed conservator for her father. The petition specifically noted that the income from Andrew’s cropland in Toole County was being improperly diverted to Merrill by virtue of Merrill having wrongfully listed himself as the operator of the farm when it was enrolled in the CRR Merrill filed an Answer and Counter-Petition denying that the appointment of a conservator was necessary and asserting his right to be appointed conservator for his father.

At a hearing on June 6, 1994, an attorney appointed to represent Andrew concluded that Andrew lacked the mental capacity to handle his own affairs. Ann testified that she has not been satisfied with the way her brother has been handling Andrew’s financial affairs. She contended that Merrill was not entitled to half of the CRP income because he was not the operator of the farm for the three years prior to the enrollment of the farm in the CRP as required by the federal regulations governing the program.

At the hearing, Merrill testified that he is the operator of the farm because he seeded the land with his own machinery, capital and labor and he reports to the soil conservation service on an annual basis. Merrill testified that the appointment of a conservator was unnecessary because he has been managing his father’s property and handling his father’s financial affairs under the authority of the Power of Attorney since 1991. Merrill also testified that he has kept his sister informed of the various transactions regarding their father’s estate.

On June 9, 1994, the District Court issued its order denying the appointment of a conservator. The court concluded that while Andrew could not manage his own affairs (satisfying the requirements of § 72-5-409(2)(a), MCA), there was not sufficient persuasive evidence to meet subsection (2)(b) of the statute which requires a showing that Andrew has property “which will be wasted or dissipated unless proper management is provided. ...”

Did the District Court err in finding that Andrew’s property is not being wasted or dissipated and that appointment of a conservator for Andrew’s estate is unnecessary?

The appointment of a conservator is controlled by statute in Montana. Sections 72-5-409(2)(a) and (b), MCA provide:

(2) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that:
(a) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and
(b) the person has property which will be wasted or dissipated unless proper management is provided or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds.

There is no dispute that Andrew lacks the capacity to manage his property and affairs. However, this Court has previously ruled that even though the person can be shown to be incapacitated, subsection (b) also requires a showing that the “person has property which will be wasted or dissipated unless proper management” is provided. See In the Matter of the Guardianship and Conservatorship of Swandal (1984), 210 Mont. 167, 171, 681 P.2d 701, 703.

The District Court noted, that while Ann has no argument with how Merrill has been handling Andrew’s investment assets, questions may have been raised concerning the competency of Andrew at the time he entered into the agreement with Merrill and the legality of the participation in the CRP under such an agreement. The court concluded, however, that these questions did not rise to the level of persuasive proof of mismanagement, waste or dissipation of assets. Therefore, the corut ruled that the second prerequisite necessary to the appointment of a conservator had not been satisfied.

In a non-jury trial, this Court will not disturb the district court’s findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Columbia Grain International v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678. Our standard of review for questions of law is to determine whether the district court has correctly interpreted the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The District Court correctly concluded that there was insufficient evidence presented by Ann at the hearing for a showing that Andrew’s estate is being wasted or dissipated. We therefore affirm the order of the District Court denying the appointment of a conservator for the estate of Andrew Kovatch.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and WEBER concur.

JUSTICE LEAPHART,

dissenting.

I dissent. The parties do not dispute that Andrew lacks the capacity to manage his property and affairs. It is also undisputed that Andrew has property. Nonetheless, the Court, citing In the Matter of the Guardianship and Conservatorship of Swandal (1984), 210 Mont. 167, 171, 681 P.2d 701, 703, has upheld the District Court’s refusal to appoint a conservator because there was insufficient evidence presented for a showing that Andrew’s estate is being wasted or dissipated.

It seems to me to be self evident that:

(a) property which is not properly managed will dissipate, and

(b) an owner of property who is adjudged incapable, cannot properly manage that property: therefore,

(c) property left in the management of an incapacitated person will dissipate.

In other words, once a property owner is incapacitated what more proof is needed in order to warrant appointment of a conservator? In the present case, the District Court found that Ann, the petitioner, had not produced persuasive proof of mismanagement, waste or dissipation of her father’s assets. The law, however, does not impose such a burden. For obvious reasons, the law does not require the court to wait until there has been actual dissipation or waste. Rather, the law is prospective in nature. The statute allows appointment of a conservator when the person has property “which will be wasted or dissipated ...” Section 72-5-409(2)(b), MCA (emphasis added). The fact that the property, with the help of friends or relatives, is not presently being mismanaged, is not the issue. Rather, once a property owner is shown to be incompetent to manage his/her property, it is incumbent upon the court to appoint a conservator who is accountable to the court rather than sit back and wait to see how things develop under the watchful (and perhaps acquisitive) eye of an unsupervised friend or relative. To the extent that it requires proof of past or present waste or dissipation of assets, I would reverse our holding in Matter ofSwandal and reverse the lower court herein for having incorrectly interpreted the law, i.e., § 72-5-409(2), MCA.


text:
    IN RE THE MARRIAGE OF PATRICIA HALSE NORDBERG, Petitioner and Appellant, and DEAN V. NORDBERG, Respondent and Cross-Appellant.
    No. 95-009.
    Submitted on Briefs April 27, 1995.
    Decided June 1, 1995.
    52 St.Rep. 468.
    896 P.2d 447.
    271 Mont. 328.

      For Appellant: Brenda R. Cole, Swandal, Douglass, Frazier & Cole, Livingston.
    For Respondent: W. G. Gilbert, Jr., and W. G. Gilbert III, Attorneys at Law, Dillon.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The parties appeal and cross-appeal an order of the District Court for the Fifth Judicial District, Madison County. In that order, the court entered judgment for a sum due and owing based upon a previous decree of dissolution of marriage. We reverse and remand.

The dispositive question is whether the District Court denied Dean V. Nordberg due process by entering judgment after an “informal scheduling conference.” Because we answer that question in the affirmative, we do not reach the issues of whether Patricia Halse Nordberg should have been awarded interest on the judgment and costs of a previous appeal or whether the court erred in failing to enforce portions of the 1987 judgment in favor of Dean.

The parties married each other twice. Their first marriage was dissolved in 1987. The 1987 decree of dissolution incorporated a property settlement agreement requiring Dean to pay Patricia $25,000 one year from the date of the agreement and $25,000 two years from the date of the agreement, for her interest in ranch assets acquired during the marriage.

Five months after their 1987 dissolution, Dean and Patricia remarried. Their second marriage was dissolved in 1993. As part of the second decree of dissolution, the District Court declared null and void the judgment entered in the 1987 dissolution.

Patricia appealed the second decree of dissolution. In re Marriage of Nordberg (1994), 265 Mont. 352, 877 P.2d 987. This Court reversed, and remanded to the District Court to reinstate the 1987 judgment and for further proceedings to determine the balance Dean owed Patricia under that judgment. Nordberg, 877 P.2d at 992.

Patricia then filed with the District Court a Memorandum of Costs and Disbursements for the appeal. Dean objected and filed a Motion to Re-tax Costs.

In an October 18, 1994 order, the court set up a conference call. The order stated, in its entirety:

The Court hereby schedules a Court — counsel conference to address the format for the disposition of all pending mattes [sic] in this cause for Tuesday, November 8, 1994 at 1:30 pm.
The conference shall be by telephone to the Dillon office of the Judge (406/683-5841), the call to be initiated by counsel for PATRICIA.
DATED this 18 of October, 1994.
/s/ Frank M. Davis District Judge
COMMENT
The Court notes that November 8th is Election day, but there is no reason that an informal scheduling conference cannot be conducted on that day after Court and counsel have discharged their civic duty at the polls.
Since this case seems destined to go on in perpetuity, at what must be a staggering cost, the Court makes this one last appeal for compromise and settlement. The alternative is recusal and a new judge. If this occurs then the case will be prolonged for months, perhaps years.
I’m perplexed that one or both parties didn’t timely substitute me after remand! In any case voluntary recusal is now the only option, but we will discuss it on Election day.
/s/ Frank M. Davis

During the November 8 conference call, the court apparently asked Patricia to submit her calculation of the amount still due on Dean’s obligation to her under the 1987 judgment. The calculation which Patricia subsequently submitted showed that as of November 8,1994, Dean owed her $12,406.84 in judgment monies and accrued interest. Patricia provided a copy of her calculation to Dean’s counsel.

On November 14, 1994, without holding any further proceedings, the court granted Patricia a money judgment against Dean, “in the amount of $10,000, with interest thereon at the legal rate from this date.” The court stayed execution of the judgment for six days to allow Dean the opportunity to appeal, and ordered that each party would be responsible for its own costs. The Court denied Patricia’s memorandum of costs.

Patricia appeals and Dean cross-appeals.

Did the District Court deny Dean due process by entering judgment after an “informal scheduling conference”?

Dean maintains he has made payments toward the 1987 judgment which were not included in Patricia’s calculations. He points out that he was not allowed an opportunity to present evidence on this subject before the court issued its November 14, 1994 order.

No person shall be deprived of property without due process of law. Art. II, Section 17, Mont. Const.

“Due process of law” refers to and means certain fundamental rights which ora system of jurisprudence has always recognized, that is, of requiring notice to be given and a hearing had before property may be taken, or impressed with a lien[.]

Great Northern Railway Co. v. Roosevelt County (1958), 134 Mont. 355, 362, 332 P.2d 501, 505.

The judgment entered against Dean on November 14, 1994, created a lien against his non-exempt Madison County property. See § 25-9-301(2), MCA. Therefore, we conclude that due process entitled him to notice and a hearing prior to entry of that judgment.

Even if we were to construe the November 8 telephone conference call as a hearing for purposes of due process, the October 18 order set forth above did not provide notice that the conference call might result in a lien against Dean’s property. In no way did it provide notice that Dean should prepare to set forth, during the conference call, evidence of his payments on the 1987 judgment.

Patricia argues that calculation of the amount Dean owed her under the 1987 decree of dissolution may be accomplished simply by looking at the record, so that no hearing was required. She cites Young v. Flathead County (1990), 241 Mont. 223, 786 P.2d 658, for the proposition that a district court is not required to conduct an evidentiary hearing in a matter remanded from this Court. The principle set forth in Young was not that broad. This Court’s holding in Young was that given the terms under which that case was remanded, no further evidentiary hearing was required. Young, 786 P.2d at 661.

Patricia contends that, on remand, the District Court was precluded from considering payments which Dean asserts went toward the 1987 judgment. Her contention is apparently based upon this Court’s statement that “according to the record, Dean still owes for this [1987] judgment.” Nordberg, 877 P.2d at 990.

The record before this Court on the first appeal did not establish that the 1987 judgment had been satisfied. Although the amount due from Dean to Patricia under that judgment was a matter of record, over seven years had passed between the entry of judgment and the November 8, 1994 conference call. It was undisputed that some payment had been made in the interim. We directed “further proceedings to determine the balance owed to Patricia from the judgment.” Nordberg, 877 P.2d at 992. The amount remaining due on the 1987 judgment was clearly a subject upon which the court should obtain evidence, given the terms under which this case was remanded.

Dean was not given any opportunity to respond to Patricia’s calculation of the amount remaining due on the 1987 judgment. We conclude that due process required that Dean be given notice and an opportunity to present evidence of his payments toward the 1987 judgment before a new judgment was entered against him.

We reverse and remand this action for further proceedings consistent with this opinion.

JUSTICES HUNT, NELSON, TRIEWEILER and LEAPHART concur.


author: JUSTICE GRAY

text:
    MARTIN REDFERN, Plaintiff and Appellant, v. MONTANA MUFFLER, a Montana corporation, and KIRK R. WELLS, JOHN DOE I, JOHN DOE II, XYZ CORPORATION I, and XYZ CORPORATION II, Defendants and Respondents.
    No. 94-466.
    Submitted on Briefs May 18, 1995.
    Decided June 6, 1995.
    52 St.Rep. 470.
    896 P.2d 455.
    271 Mont. 333.

      For Appellant: W. M. Hennessey; Hennessey, Joyce, McCarthy & Wing, Butte.
    For Respondent: Joseph C. Connors, Sr.; Connors Law Firm, Anaconda.
   JUSTICE GRAY

delivered the Opinion of the Court.

Martin Redfern appeals from the opinion and order of the Third Judicial District Court, Anaconda-Deer Lodge County, granting the motion for summary judgment filed by Montana Muffler and Tire, Inc., and from the judgment of dismissal entered thereon. We affirm.

The facts necessary to our resolution of this appeal are undisputed. Martin Redfern (Redfern) worked for Montana Muffler and Tire, Inc. (Montana Muffler), in Anaconda, Montana. Montana Muffler terminated Redfern’s employment effective at the end of his October 24, 1992, shift. Montana Muffler paid Redfern his wages for the previous two weeks by check on October 26, 1992; the check also included compensation for five days of earned vacation time.

On October 29, 1993, Redfern filed a complaint alleging wrongful discharge against Montana Muffler and others in the Second Judicial District Court, Silver Bow County. Montana Muffler moved for a change of venue, the motion was granted and the action was transferred to the Third Judicial District Court.

Montana Muffler answered the complaint, generally denying Red-fern’s allegations. It also asserted affirmative defenses, including that the action was barred by the statute of limitations.

Montana Muffler subsequently moved for summary judgment on statute of limitations grounds and supported its motion with the affidavit of Kirk R. Wells, its president. The parties briefed the motion, and Redfern filed his affidavit in opposition. The District Court granted Montana Muffler’s motion for summary judgment and entered a judgment dismissing Redfern’s complaint. Redfern appeals.

Did the District Court err in granting Montana Muffler’s motion for summary judgment?

We review a district court’s grant of summary judgment de novo; summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32 (citations omitted). Here, the parties agree with the District Court’s determination that no genuine issues of material fact exist relating to the motion for summary judgment. The sole issue before us is whether the court erred in concluding that Montana Muffler was entitled to judgment as a matter of law because Redfern’s complaint was barred by the statute of limitations.

Redfern’s complaint alleges that Montana Muffler terminated his employment in violation of Montana’s Wrongful Discharge From Employment Act (WDEA). An action under the WDEA“must be filed within 1 year after the date of discharge.” Section 39-2-911(1), MCA. The District Court determined that Redfern’s employment with Montana Muffler ended on October 24,1992, the date of his discharge. On that basis, the court concluded that Redfern’s October 29, 1993, complaint was barred by the one-year statute of limitations contained in § 39-2-911(1), MCA.

Redfern asserts that he continued to earn compensation from Montana Muffler for five days after his discharge on October 24, 1992, by virtue of the five days of vacation pay included in his final paycheck. Accordingly, he argues that the statute of limitations did not begin to rim until either October 30 or 31, 1992, pursuant to Allison v. Jumping Horse Ranch, Inc. (1992), 255 Mont. 410, 843 P.2d 753. Redfern’s reliance on Allison is misplaced.

The issue before us in Allison, as it is in the present case, was at what point the § 39-2-911(1), MCA, one-year limitation “after the date of discharge” begins to run. We focused first on the § 39-2-903(2), MCA, definition of “discharge” as “termination of employment.” Al lison, 843 P.2d at 755. We then defined “termination of employment” to mean “a complete severance of the relationship of employer and employee by positive act on the part of either or both.” Allison, 843 P.2d at 755 (citations omitted). Finally, we determined that the WDEA statute of limitations, like other statutes of limitations, does not begin to run until the cause of action accrues; in the WDEA context, “damages do not occur until the employee is no longer earning compensation from the employer, ... and this can only occur upon a complete severance of the employer-employee relationship.” Allison, 843 P.2d at 756.

Applied to the undisputed facts in the present case, neither the plain language of § 39-2-911(1), MCA, nor our decision in Allison, supports Redfern’s position. Under § 39-2-911(1), MCA, it is clear that Redfern’s “date of discharge” was October 24, 1992. Analogizing to Allison, the “complete severance” of the employment relationship occurred at the end of Redfern’s shift on that date; thereafter, Redfern was no longer “earning compensation” from Montana Muffler.

Redfern’s argument that the five days’ vacation pay kept him on Montana Muffler’s payroll for five days past the date on which he was discharged and, thus, that he was still “earning compensation” under Allison for that period of time, is totally without merit. The vacation pay was a fringe benefit of Redfern’s employment with Montana Muffler which he had earned during the employment prior to the date of his discharge on October 24, 1992. As of that date, he no longer was employed by Montana Muffler and no longer was earning vacation pay or any other type of wage or fringe benefit.

We conclude that the District Court did not err in determining that the statute of limitations contained in § 39-2-911(1), MCA, bars Redfern’s complaint. We hold, therefore, that the court did not err in granting Montana Muffler’s motion for summary judgment and dismissing Redfern’s complaint.

Affirmed.

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


text:
    IN RE THE PETITION OF FAYE SLICE
    No. 95-134.
    Decided June 1, 1995.
    52 St.Rep. 472.
    896 P.2d 1125.
    271 Mont. 337.
   ORDER

Faye Slice, pro se, has filed herein her petition for postconviction relief in connection with sentences from Yellowstone and Missoula Counties. The Attorney General for the State of Montana has filed his response. On the basis of our review of the petition, response and the record, we conclude that petitioner’s claims challenging the legality of her sentences are procedurally barred. Petitioner claims that various information should have been either included or excluded from the Yellowstone County presentence investigation report. However, petitioner voiced none of her objections regarding that report to the sentencing court, although she took the opportunity at the Yellowstone County sentencing hearing to make minor corrections to the report, submit additional information to the District Judge and address other matters. Moreover, petitioner made no objection in either Yellowstone County or Missoula County proceedings regarding her claim that her probation officer had a conflict of interest or failed to meet with family members or present favorable evidence. Absent a contemporaneous objection, petitioner’s claims have not been properly preserved for review and are waived. State v. Wild (1994) 266 Mont. 331, P.2d 840, 844; State v. Gorder (1990) 243 Mont. 333, 334-36, 792 P.2d 370, 371; § 46-20-104, MCA. Additionally, petitioner’s claims are now procedurally barred from further review because she had the opportunity to raise those same issues on direct appeal but failed to exercise that right. Sections 46-20-104, 46-21-101(1) and 46-21-105(2), MCA; and see, MeKenzie v. Osborne (1981) 195 Mont. 26, 35, 640 P.2d 368, 373; State ex rel. Greely v. District Court (1979) 180 Mont. 317, 327, 590 P.2d 1104, 1110; Tecca v. McCormick (1990) 246 Mont. 317, 318, 806 P.2d 11, 12.

We also conclude that petitioner’s challenges to the equity of her sentences in Yellowstone and Missoula Counties were previously reviewed by the Sentence Review Division and, therefore, may not be raised in her petition for postconviction relief. It is well established that review of sentences for mere inequity or disparity must be conducted by the Sentence Review Division in accordance with statutes applicable to those proceedings. State v. Almanza (1987) 229 Mont. 383, 386, 746 P.2d 1089, 1090-91. Moreover, the decision by the Sentence Review Division is final. Section 46-18-905, MCA. See also State ex rel Greely, 590 P.2d at 1110. Accordingly, having carefully considered petitioner’s petition,

IT IS ORDERED that petitioner’s petition for postconviction relief should be and the same is, hereby, DENIED.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to petitioner at the Women’s Correctional System, to the Yellowstone and Missoula Counties Attorney and to the Attorney General for the State of Montana.

Dated this 1st day of June, 1995.

/S/ J. A. TURNAGE, Chief Justice

IS/ KARLA M. GRAY, Justice

IS/ TERRY N. TRIEWEILER, Justice

/S/WILLIAM E. HUNT, SR., Justice

/S/JAMES. C. NELSON, Justice

IS/ W. WILLIAM LEAPHART, Justice