author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    DOROTHY NELSON, as Guardian Ad Litem for JILLENE NELSON, a handicapped person, Plaintiff and Appellant, v. FLATHEAD VALLEY TRANSIT and SANDRA CANNON, Defendants and Respondents.
    No. 91-294.
    Submitted on briefs Oct. 24, 1991.
    Decided Jan. 16, 1992.
    49 St.Rep. 58.
    251 Mont. 269.
    824 P.2d 263.

      For Appellant: John H. Bothe and Laurie Wallace, Bothe & Lauridsen, Columbia Falls.
    For Respondents: William G. Sternhagen, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Jillene Nelson (Nelson) brought a negligence action, in the Eleventh Judicial District, Flathead County, against Flathead Valley Transit after she was injured in a collision between the van in which she was a passenger and a snowplow. A jury verdict and judgment were entered in favor of Flathead Valley Transit. Nelson appeals the denial of her motion for judgment notwithstanding the verdict or, in the alternative, a new trial. We affirm.

The following issues are presented for review:

1) Did the District Court err by denying Nelson’s motion for judgment notwithstanding the verdict?

2) Did the District Court abuse its discretion by denying Nelson’s motion for a new trial?

Flathead Valley Transit is in the business of transporting passengers for hire. Sandra Cannon was an employee of Flathead Valley Transit and was driving a van in that capacity when she had a collision with a snowplow. Jillene Nelson was a passenger in the van and was injured in the collision.

There is a factual dispute regarding where the two vehicles were, in relation to the center line, prior to the collision. Cannon testified that the snowplow was in the middle of the road when she first saw it approximately 90 feet away. Cannon, heading southbound on the road, perceived that she would be unable to pass between the northbound snowplow and the shoulder of her lane. In response, it is her testimony that she applied the brakes, lost control of the vehicle and struck the snowplow that had by now moved to the far right shoulder of the opposite lane.

The snowplow driver, James Hansen, testified that prior to the collision he had been plowing the shoulder of the road and that he was not in the middle of the road as Cannon claims. The investigating officer on the scene offered testimony that it appeared that the snowplow had been moving along the shoulder prior to the collision. The officer cited Cannon for either over driving existing road conditions or failure to keep to the right side of the roadway. The record provides limited information regarding the citations, though it appears through Cannon’s testimony that she contested the citations and lost.

At the close of the defendant’s case, Nelson made a motion for directed verdict which was denied and the case was sent to the jury. The jury returned a verdict for the defendant. Nelson made motions for judgment notwithstanding the verdict, or in the alternative, a new trial. The court denied the motions and Nelson appeals.

I.

Did the District Court err by denying Nelson’s motion for judgment notwithstanding the verdict?

In considering a motion for judgment notwithstanding the verdict, the court must view all of the evidence in a light most favorable to the non-moving party. Nicholson v. United Pacific Insurance Company (1985), 219 Mont. 32, 710 P.2d 1342. The motion may only be granted if it appears that the non-moving party cannot recover upon any view of the evidence, including legitimate inferences to be drawn from it. Larson v. K-Mart Corporation, (1990), 241 Mont. 428, 787 P.2d 361.

Nelson contends that no evidence exists in any light that would support the conclusion that Cannon did not breach an obligation to Nelson. Section 69-11-107, MCA, is cited as the standard of care owed Nelson by Cannon in their respective capacities as common carrier and passenger. Specifically, Cannon is held to a standard of utmost care and diligence in the safe carriage of her passengers. Nelson argues that the issuance of citations and Cannon’s admission that she was found guilty of driving charges relating to the collision, established a breach of the above duty and negligence as a matter of law. We note that despite Nelson’s heavy reliance on this argument, the record provides scarce Information regarding the citations, the actual charges and the legal proceedings following their issue. On the basis of the scant record, we conclude the trial court did not err in denying the motion for judgment on this point.

Nelson next contends that Cannon’s breach of duty was the proximate cause of the accident and her injuries. Proximate cause was defined in the appellant’s proposed instruction and submitted to the jury as:

“whenever it appears that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.”

Question number 1 of the special verdict form asked:

‘Were the Defendants guilty of negligence which was a legal cause of the Plaintiff’s injuries and damages?”

While the instructions delineate between the issues of negligence and proximate cause, the jury was not asked to provide separate answers to the two issues. In the instant case, it is possible that the jury found of negligence but no causation. Without knowing which specific element(s) the jury found lacking, negligence and/or proximate cause, the verdict must be affirmed if there is any evidence to support the jury’s findings on either one.

To grant judgment notwithstanding the verdict there must be a lack of substantial evidence to support the judgment. Funk v. Robbin (1984), 212 Mont. 437, 689 P.2d 1215. A colloquy between appellant’s attorney and the judge following the motion for directed verdict brings out clearly that there was supporting evidence and after examining the record, we find that the jury could determine that the snowplow may have been in the middle of the road and precipitated the collision. The transcript provides:

“The Court: You do admit, don’t you, that there is a factual dispute between the parties as to where the Hanson vehicle was, when Miss Cannon first saw him in relation to the center fine?
“Mr. (Attorney): Factual — Well, I suppose created by the Defendant.
“The Court: By her testimony?
“Mr. (Attorney): That is correct.
“The Court: Yes, and so, is it not conceivable that panicking or otherwise, she hit the brakes to avoid a collision with him, and then lost control as a result and wham?
“Mr. (Attorney): I suppose.
“The Court: I mean, that is a plausible conclusion that the jury could reach, in light of her testimony?
“Mr. (Attorney): I suppose.”

Nelson now argues that the jury could not reach the conclusion suggested by the court because it may not give any weight to testimony that is contradicted by undisputed physical facts. In Burns v. U & R Express (1981), 191 Mont. 343, 624 P.2d 487, we held that “undisputed physical facts control over testimony when physical facts admit of only one interpretation.” The physical facts Nelson refers to are the tracks of the snowplow that allegedly follow the shoulder of the road.

The testimony of the investigating officer suggests that the snowplow was on the shoulder prior to the collision. However, no testimony was elicited from the officer regarding the basis of his suggestion nor the distance or length of time the snowplow had been traveling on the shoulder prior to the collision.

The snowplow driver, Hansen, testifies that he looked back and saw his marks along the shoulder. However, Hansen called a sand truck and the area was sanded before the investigating officer arrived. No further evidence on the “tracks” of the snowplow was offered. A single photograph was admitted into evidence but provides no further information in this regard. We are left with Hansen’s word against Cannon’s and an unclear picture of what the physical facts are. Because the physical facts are unclear, we decline to hold that they are controlling over the testimony of Cannon.

The factual dispute regarding the cause of the accident was properly before the jury. “The jury is the judge of the credibility of the witnesses and the weight to be given testimony.” See Burns [191 Mont.] at 346, 624 P.2d 487. The verdict is supported by evidence. The ruling of the District Court denying the motion for judgment notwithstanding the verdict is affirmed.

II.

Did the District Court abuse its discretion by denying Nelson’s motion for a new trial?

Nelson contends that the District Court abused its discretion by failing to grant her motion for a new trial. Section 25-11-102, MCA, provides the grounds for which a new trial may be ordered. Nelson bases her motion on the following subsections:

“(1) irregularity in the proceedings of the court.... or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;
“(6) insufficiency of the evidence to justify the verdict... ;
“(7) error in law occurring at the trial and excepted to by the party making the application.”
The decision to grant a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse. Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908.

Nelson argues that the trial court abused its discretion by denying the motion for directed verdict and that a new trial should be ordered. When reviewing the denial of a motion for a directed verdict, only substantial evidence in the record supporting the jury’s finding is required. State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718. Essentially, the scope of our review and the province of the jury are the same as for a motion for judgment notwithstanding the verdict. For reasons stated above regarding the motion for judgment notwithstanding the verdict, the District Court did not abuse its discretion in denying Nelson’s motion for a directed verdict.

Nelson’s second ground for a new trial is that there is an insufficiency of evidence to justify the verdict. Again, Nelson relies on the physical facts and the alleged improbability of Cannon’s testimony. For reasons previously discussed, we disagree and find that the verdict was supported by the evidence.

Finally, Nelson argues that there is clear error of law in jury instruction No. 24 and the special verdict form questions regarding the issue of joint and several liability. However, the jury found no liability whatsoever, and the special verdict forms instructions were such that the jury never dealt with the issue of joint and several liability. Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GRAY, HUNT, and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority.

I believe that the plaintiff was entitled to a directed verdict on the issue of negligence as a matter of law. I base that conclusion on our prior decision in Aetna Life & Cas. Ins. Co. v. Johnson (1984), 207 Mont. 409, 673 P.2d 1277, where we held that collateral estoppel bars litigation of an issue in a civil trial that has been previously litigated in a criminal trial.

In this case, defendant Sandra Cannon stated in her own testimony that she was charged with careless driving by the investigating highway patrolman. She pled not guilty to that offense. She testified that she and the investigating officer appeared before a judge and that after testimony was heard she was found guilty.

Careless driving is prohibited by § 61-8-302, MCA, which provides as follows:

“A person operating or driving a vehicle of any character on a public highway of this state shall drive it in a careful and prudent manner so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.”

Based on the rule of collateral estoppel, defendant Cannon was prohibited from denying her violation of that statute in this subsequent civil action. Her violation of that statute was negligence as a matter of law. See Roberts v. Burlington Northern R.R. (1976), 171 Mont. 143, 556 P.2d 1243. The jury should have been so instructed and the issue of proximate cause submitted separately to the jury.

In our decision in Aetna Life & Cas. Ins. Co. v. Johnson, we discussed the following California authority with approval:

In Teitelbaum Furs, Inc v. Dominion Insurance Company (1962), 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439, the California Supreme Court found that"... any issue necessarily decided in a prior criminal proceeding is conclusively determined as to the parties if it is involved in a subsequent civil action.” 25 Cal.Rptr. at 562, 375 P.2d at 442. Justice Traynor’s comments explain the basis for this rule:

“‘...To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt (Code Civ.Proc. § 2061) and of a unanimous verdict (Pen. Code. § 1164), the right to counsel (In re James, 38 Cal.2d 302, 240 P.2d 596), and a record paid for by the state on appeal (Cal. Rules of Court, rule 33). Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards.’ ” 25 Cal.Rptr. at 561, 375 P.2d at 441.
“The California Court held that three questions were pertinent to determine the applicability of collateral estoppel. They are:
“... [1] Was the issue decided in the prior adjudication identical with the one presented in the action in question? [2] Was there a final judgment on the merits? [3] Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? ...” 25 Cal.Rptr. at 560, 375 P.2d at 440.
Aetna Life & Cas., 207 Mont. at 412-13, 673 P.2d at 1279.

After discussing the California decision, we held that:

“[Cjollateral estoppel will bar litigation of an issue in a civil trial that has previously been litigated in a criminal trial when the requirements of Teitelbaum Furs, Inc., have been met. The authority discussed above is persuasive and represents a growing trend indicative of our holding.
“As discussed in Teitelbaum Furs, Inc., supra, the rigorous safeguards against an unjust criminal conviction, especially the requirement of proof beyond a reasonable doubt as opposed to the preponderance of the evidence, make collateral estoppel between criminal and civil trials less severe than between successive civil trials. Furthermore, application of collateral estoppel promotes expeditious trials and stability of judgments. We will not show such lack of faith in the criminal judicial system to allow an issue fully and fairly litigated in a criminal trial to be completely relitigated in a subsequent civil trial.”

Aetna Life & Cas., 207 Mont. at 414, 673 P.2d at 1280.

All of the requirements set forth in Teitelbaum Furs and adopted in. Aetna Life & Casualty are present in this case: (1) in the previous adjudication it was determined that the defendant violated a motor vehicle statute which established her negligence as a matter of law; (2) there was a final judgment on the merits; and (3) the party against whom collateral estoppel is being asserted was the party in the prior adjudication.

The interest of our courts in expeditious trials and stability of judgments is just as present in this case as it was in Aetna Life & Casualty. Defendant Cannon had her day in court when she denied being guilty of the motor vehicle violation with which she was charged. A judge who listened to the evidence determined that she was guilty, and she should not have been given a second opportunity to relitigate the same issue in the subsequent civil proceeding filed against her.

For these reasons, I conclude that defendant Cannon was negligent as a matter of law and that a directed verdict should have been entered against her on that issue at the conclusion of the evidence. I would reverse the judgment in favor of the defendants.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES JAY DEVLIN, Defendant and Appellant.
    No. 88-360.
    Submitted on briefs Oct. 24, 1991.
    Decided Dec. 12, 1991.
    48 St.Rep. 1093.
    251 Mont. 278.
    825 P.2d 185.

      For Appellant: Ray J. Dayton, Knight, Dahood, McLean & Everett, Anaconda.
    For Respondent: Marc Racicot, Attorney General, and John Paul-son, Assistant Atty. General, Helena; Robert L. Deschamps, County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On April 24, 1987, the State filed an Information in the Fourth Judicial District Court in Missoula County, charging Charles Jay Devlin with Misdemeanor Assault and Attempted Deliberate Homicide. The incident at issue involved two different victims; the State alleged that Devlin had assaulted his wife Cindy and had tried to kill Dale Hart. The District Court instructed the jury on the charged offenses of Misdemeanor Assault and Attempted Deliberate Homicide and also instructed on the lesser included offenses of Attempted Mitigated Deliberate Homicide and Aggravated Assault. On January 4, 1988, a jury convicted Devlin on Aggravated Assault, acquitting him on all other charges. Devlin appeals. We affirm.

The issues are:

1. Did the District Court err in admitting Trisha Devlin’s prior inconsistent statement?

2. Did the District Court err in admitting photographs of the victim and the crime scene?

3. Does the record contain sufficient evidence to support Devlin’s conviction for aggravated assault?

On April 18, 1987, Devlin flew into Missoula from Salt Lake City to visit his wife and children. At that time, he and his wife Cindy had been separated for more than two years. Cindy and the children were not expecting him.

When Devlin arrived, the front door to Cindy’s house was open. He went into the house and found his children asleep in the living room. He then walked down the hall to Cindy’s bedroom and found the door locked. He called Cindy’s name but received no answer. He used a pocketknife to dismantle the doorknob.

When Devlin entered the bedroom, Cindy was passed out on the bed, fully clothed. Devlin smelled alcohol on her breath. Something then drew his attention to the bedroom bathroom. The door was closed, and when Devlin opened it, he found the victim, Dale Hart, standing in the bathroom. A struggle followed, and Hart was severely injured.

The noise from this struggle woke up Devlin’s 12-year-old daughter, Trisha. Trisha walked back to the bedroom and met Devlin coming out of the bathroom. Trisha asked him what had happened, and Devlin said, “Your mom’s having men around here again.” Devlin sat down for a moment. Then Trisha saw him go back into the bathroom, dismantle a wooden bar stool, and beat Hart with one of the stool legs. Hart was fully clothed at the time. Later Trisha saw Devlin take Hart’s clothes off and drag him outside.

When the authorities arrived, they found Hart naked and semiconscious on the ground in front of the house. Paramedics found that Hart’s teeth did not align correctly and that his mouth was full of blood and other fluids which interfered with his respiration. On arrival at St. Patrick’s Hospital, the emergency room staff classified Hart’s condition as critical, and one doctor testified that bone fragments were visible through open contusions on Hart’s face. Devlin told the authorities he had found Hart in bed with Cindy. He then admitted to assaulting Hart.

The jury found Devlin guilty of aggravated assault after a trial in late December 1987. The District Court sentenced him to 15 years at Montana State Prison with five years suspended on conditions. The court designated Devlin as non-dangerous for parole purposes and ordered him to pay restitution.

I

Did the District Court err in admitting Trisha Devlin’s prior inconsistent statement?

Shortly after the authorities arrested Devlin, Trisha gave Deputy Sheriff Hafferman a taped statement. She told Hafferman that Devlin said, ‘Your mom’s having men around here again,” and that she had seen Devlin beat Hart with the stool leg. At trial, Trisha testified that she could not remember what Devlin said and that she did not see him actually strike Hart with the stool leg. Trisha acknowledged giving a statement to Deputy Hafferman and testified that she had told the truth when she gave that statement. She also testified that she was having trouble remembering the earlier statement.

The State then attempted to introduce the actual tape recording of the statement through the testimony of Deputy Hafferman. Devlin objected, and the District Court Judge and counsel retired to chambers for argument on the objection. The judge indicated that he thought the tape was probably admissible, but he suggested that the State bring Trisha back to the stand to lay more foundation.

When Trisha took the stand again, she repeated that she had told Deputy Hafferman the truth. She again testified that she did not see Devlin strike Hart with the stool leg. The State then proposed to play the tape, and Devlin’s counsel responded as follows:

“Your Honor, I will object to that. I believe the proper way to refresh this witness’s recollection is to show her a transcript of the tape, let her then make a determination as to whether that refreshes her recollection. I think Mr. McLean is missing a step here by playing that to her in front of the jury.”

The District Court sustained this objection. The court also denied the State’s request to distribute copies of the transcript to the jury. Neither the tape nor the transcript was ever received into evidence.

The prosecutor then handed Trisha a copy of the transcript of the taped statement and proceeded to read it into the record with Trisha’s cooperation. The prosecutor read Deputy Hafferman’s original questions, and Trisha read her original answers. The defense raised no objection during this entire procedure, but Devlin now argues that the District Court erred in admitting the prior statement. The thrust of this argument is that what the State was really trying to do was refresh Trisha’s recollection and that it did not follow the proper procedure for doing so.

We disagree. The Rules of Evidence, as they existed at the time of trial, provided:

“A statement is not hearsay if:
“(1)... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony ... .”

Rule 801(d), M.R.Evid. (1987). Declarant Trisha Devlin testified at the trial. She was subjected to cross-examination not once but twice. Her statement was clearly inconsistent with her trial testimony regarding what Devlin said and whether she actually saw him strike Hart with the stool leg.

Furthermore, the prior statement was admissible as substantive evidence. In State v. Charlo (1987), 226 Mont. 213, 735 P.2d 278, one declarant testified at trial that he had never thought about who stabbed him. In fact, he had previously given a statement in which he said he knew it was the defendant who had stabbed him. Another declarant testified at trial that she could not remember having accused the defendant of stabbing the victim. She too had previously given a statement in which she accused the defendant. Charlo, 735 P.2d at 279. We held that inconsistency within the meaning of Rule 801(d)(1)(A) includes both positive contradictions and claimed lapses of memory. We concluded that the District Court did not err in admitting the statements in that case, and we noted that such prior inconsistent statements could serve as substantive evidence. Charlo, 735 P.2d at 281.

In the instant case, Trisha’s prior inconsistent statement tended to establish two key facts: that Devlin said Cindy had been having men around again, and that he actually beat Hart with the stool leg. At trial, Trisha claimed she could not remember what Devlin had said, and she positively contradicted her earlier statement about witnessing the beating with the stool leg. Thus, her trial testimony presented one claimed memory lapse and one positive contradiction. Her prior statement was therefore inconsistent for the reasons we enumerated in Charlo, and, under the holding in that case, it was admissible as substantive evidence.

We hold that the District Court did not err in admitting Trisha Devlin’s prior inconsistent statement.

II

Did the District Court err in admitting photographs of the victim and the crime scene?

In chambers, the parties sought the District Court’s advice on a number of 8 inch by 10 inch color photographs. Thirteen of these photographs depicted Dale Hart’s injuries, and 21 of the photographs depicted bloodstains at the scene of the crime. Devlin objected to all of the photographs as “gruesome” and therefore unfairly prejudicial. The District Court Judge explained that he was inclined to exclude three of the photographs of Hart and seven of the photographs of the crime scene. Consequently, the State did not even offer ten of the photographs as the result of informal discouragement by the trial judge. The court then excluded two more photographs when the State offered them in front of the jury. However, Devlin argues that all of the photographs should have been excluded.

The Rules of Evidence provide:

“Although relevant, 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, or by considerations of cm due delay, waste of time, or needless presentation of cumulative evidence.”

Rule 403, M.R.Evid. In State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d 316, 320, we noted that the balancing of probative value against unfair prejudice is a matter for the discretion of the trial court.

Here the District Court Judge fully understood the nature of the problem. He told the parties:

“I think they are gruesome, but we’re facing a gruesome issue here. We do have blood in the tub and the shower and the condition of the bathroom, and the other one shows the blood on the stool, so I think, although they are gruesome, I would permit them to demonstrate what the situation was.”

Furthermore, the court discouraged the submission of ten photographs and actually refused two more. Consequently, nearly one- third of the photographs were never received into evidence, as the result of the District Court’s balancing of probative value against unfair prejudice.

We hold that the District Court did not err in admitting some of the photographs into evidence.

III

Does the record contain sufficient evidence to support Devlin’s conviction for aggravated assault?

To commit the offense of aggravated assault, the defendant must cause “serious bodily injury” to the victim. Section 45-5-202(1), MCA (1987). A “serious bodily injury” is one “which creates a substantial risk of death.” Section 45-2-101(59), MCA (1987).

Devlin argues that the record does not contain sufficient evidence that Hart suffered serious bodily injury. He bases this contention on the following testimony by Dr. David Johnson, one of three doctors who testified at trial:

“Q. Did you make some determination after looking at him as to the severity of his injuries?
“A. I thought his injuries were certainly severe enough to warrant being in the hospital and being observed for a period of time, and furthermore, he was going to require surgery for these facial fractures.”

Dr. Johnson did not testify that Hart was at substantial risk of death. Nor did Dr. Norman Hickman, an ear, nose, and throat specialist who treated Hart’s facial injuries, express an opinion on the overall impact of the injuries. From this, Devlin concludes that the State did not prove serious bodily injury beyond a reasonable doubt.

However, Dr. Johnson and Dr. Hickman were not the only medical witnesses. Dr. Joseph Weydt, the emergency room physician who first treated Hart upon his arrival at St. Patrick’s Hospital, testified as follows:

“Q. Now you’ve described what you saw initially. Notwithstanding that, what would you describe his medical condition as being at that point in time?
“A. Well, when he came in, if somebody had called and asked, I guess I would have said that he was critical at that moment. That means that he was, that we thought at the time that he had life-threatening injuries.” [Emphasis is added.]

Furthermore, paramedic Jay Hagen testified that he believed Hart’s situation was “life-threatening.”

We review the findings of juries in criminal cases with great deference. In State v. Paulson (Mont. 1991), 817 P.2d 1137, 1146, 48 St.Rep. 838, 843, we said that:

“The proper standard of review for sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Here, one doctor and one paramedic testified that Hart’s injuries were life-threatening. The testimony on which Devlin relies does not even address this issue. Based on this evidence, we believe a rational trier of fact could have found beyond a reasonable doubt that Devlin inflicted serious bodily injury on Hart.

We hold that the record contains sufficient evidence to support Devlin’s conviction for aggravated assault.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE HUNT

text:
    JESSALIN DILLING, Claimant and Appellant, v. BUTTREY FOODS, Employer/Defendant and Respondent.
    No. 91-184.
    Submitted on briefs Aug. 1, 1991.
    Decided Dec. 3, 1991.
    Rehearing Denied March 24, 1992.
    48 St.Rep. 1057.
    251 Mont. 286.
    825 P.2d 1193.

      For Appellant: Richard J. Martin, Alexander, Baucus & Linnell, P.C., Great Falls.
    For Respondent: Thomas A. Marra, Marra, Wenz, Johnson & Hopkins, P.C., Great Falls.
   JUSTICE HUNT

delivered the opinion of the Court.

Claimant and appellant, Jessalin Dilling, appeals an adverse ruling of the Workers’ Compensation Court denying her additional wage supplement benefits pursuant to § 39-71-703, MCA (1987).

We reverse.

Claimant raises one issue on appeal which we restate as follows:

Whether the Workers’ Compensation Court erred when it included a modified position in claimant’s job pool when determining claimant’s post-injury earning capacity.

On July 1,1987, claimant suffered an industrial injury arising out of her employment with Buttrey Foods, a self-insurer. While working as a grocery checker, claimant reached across the counter to pick up two watermelons and injured her back. At the time of the injury, she was earning $6.95 per hour and was a part-time employee working approximately 20 hours per week. Claimant continued to work for an additional three weeks after the accident.

On August 16,1987, she received a leave of absence for six months, but, as a result of financial pressures, she returned to work on October 10, 1987. On October 24, 1987, she ceased working as a grocery clerk because of the physical demands of the job.

Defendant accepted liability for claimant’s injury and paid temporary total disability benefits in the amount of $116 for the period of August 16, 1987, until claimant returned to work in July 1988 as a camera bar clerk. Defendant had modified the camera bar clerk position after being approached to do so by Gerry Loch, a rehabilitation counselor, who suggested that the position be modified to accommodate claimant’s limitations. Claimant was to avoid much of the lifting requirements and was allowed to work fewer hours per week than normally required for the position. She worked 25 hours per week, earning $6.95 per hour, which was the same wage as her pre-injury wage. However, it was a higher wage than normally paid to a camera bar clerk.

On May 13, 1989, claimant voluntarily left defendant’s employ to pursue a self-employment venture with her husband. She had asked defendant for another leave of absence, but was refused and her position was unilaterally terminated by the defendant. After seven weeks, the self-employment venture proved unsuccessful and was abandoned. In June 1989, she applied for a job with defendant, who refused to hire her.

Claimant then worked as a flag person for a highway construction company in May 1990. She earned $11.95 per hour for approximately two months. Because of the seasonal nature of the work, it was not considered “typically available” and was not used by the Workers’ Compensation Court to calculate whether she was entitled to wage supplement benefits.

On September 3,1987, Dr. Thompson diagnosed claimant’s condition as a musculoligamentous sprain of the mid-back. On January 11, 1988, Dr. Isackson, an orthopedic surgeon, released claimant to return to work and advised her to avoid overhead lifting and bending. The doctor concluded claimant could return to work at defendant’s store in a position other than as a grocery store clerk. No impairment rating was assigned to claimant.

On April 28, 1988, Dr. See, a physical medicine and rehabilitation specialist, concluded that claimant had reached maximum healing and a medically stable condition. Although Dr. See did not assign claimant an impairment rating, he did recommend that claimant pursue a different occupation because he did not believe she could continue as a grocery store clerk.

Dan Schara, a vocational counselor, testified that claimant’s work history suggested she had light to medium employment. As a result of her injury, she was limited to light-duty work. Therefore, she suffered a labor market loss of 46 to 51 percent. Mr. Schara also listed several post-injury jobs as possible employment opportunities. All of these earned between $4.25 and $5.00 per hour. Ms. Loch concluded that claimant had a residual job capacity in several areas. These jobs paid from $3.35 to $4.95 per hour.

On March 1,1991, the hearing examiner issued his findings of fact and conclusions of law and proposed judgment which the Workers’ Compensation Court adopted. The Workers’ Compensation Court concluded that claimant was not entitled to wage supplement benefits pursuant to § 39-71-703, MCA (1987), primarily because the court included the modified camera bar clerk’s position within claimant’s job pool. Because her wage at the time of her injury was $6.95 per hour, and her job pool wage was the same, she was not entitled to wage supplement benefits. The court also denied claimant’s entitlement to a penalty under § 39-71-2907, MCA (1987), and attorney fees and costs. It is from this order that claimant appeals.

Because claimant’s injury occurred on the date the 1987 legislative amendments went into effect, the 1987 statutes apply to this case. Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331.

This Court will not overturn a Workers’ Compensation Court’s finding of facts if they are supported by substantial, credible evidence. Sharkey v. Atlantic Richfield Co. (1989), 238 Mont. 159, 163, 777 P.2d 870, 872. If the question on appeal is a question of law, our only task is to determine whether the Workers’ Compensation Court’s interpretation of the law is correct. Wassberg v. Anaconda Copper Co. (1985), 215 Mont. 309, 314, 679 P.2d 909, 912. The resolution of this dispute rests upon an interpretation of the law because the facts are not in dispute.

The Workers’ Compensation Court correctly concluded that claimant was not entitled to an impairment award because none of her treating physicians had assigned her an impairment rating. Thus, she was entitled only to wage supplement benefits. The Workers’ Compensation Court concluded that claimant’s job as a camera bar clerk was within her job pool because she was qualified, the position was “typically available,” and it was consistent with her age, education, vocational experience, and aptitude. We disagree.

In order to receive wage supplement benefits, § 39-71-703, MCA (1987), provides:

“(l)The benefits available for permanent partial disability are impairment awards and wage supplements. A worker who has reached maximum healing and is not eligible for permanent total disability benefits but who has a medically determined physical restriction as a result of a work-related injury may be eligible for an impairment award and wage supplement benefits as follows:
“(b)The following procedure must be followed for a wage supplement:
“(i) A worker must be compensated in weekly benefits equal to 66%% of the difference between the worker’s actual wages received at the time of the injury and the wages the worker is qualified to earn in the worker’s job pool, subject to a maximum compensation rate of one-half the state’s average weekly wage at the time of injury.”

The legislature defined “worker’s job pool” as “those jobs typically available for which the worker is qualified ... .” Section 39-71-1011(7)(a), MCA (1987). The worker’s qualifications must be consistent with the worker’s age, education, vocational experience, and aptitude, and the job must be compatible with the worker’s physical capabilities and limitations. Section 39-71-1011(7)(a), MCA (1987). The statutes do not discuss whether modified employment should be included in a workers’job pool.

We adopt the Workers’ Compensation Court’s definition of what constitutes jobs that are “typically available.”

“[T]here is labor market documentation of positions, not necessarily openings, for which an injured worker has marketable skills and access to within his or her job pool. The mere existence of the positions is not enough, however, if there are positions for which the claimant has the skills and physical capabilities to perform, those positions are typically available.”

Roby v. A. Basil Canavan (1990), W.C.C. No. 785.

The Workers’ Compensation Court must analyze a claimant’s physical ability to perform the job, and claimant’s ability to compete for the job, in order to conclude that any job is “typically available.”

The record indicates that claimant was not qualified to perform the camera bar clerk position unless certain modifications were implemented. This “modified” job cannot accurately reflect claimant’s post-injury earning capacity because it would not be a “typically available” job to her. The position should not be included in her job pool because the only employer providing the modified position is the defendant.

‘Wages paid an injured employee out of sympathy, or in consideration of his long service with the employer, clearly do not reflect his actual earning capacity, and, for purposes of determining permanent disability, are to be discounted accordingly. The same is true if the injured man’s friends help him, or if he manages to continue only by delegating his more onerous tasks to a helper, or if the work for which claimant is paid is ‘made work’or sheltered work.” [Emphasis added.] Larson’s Workers’ Compensation Desk Edition, Section 57.34 (1989).

In addition, the record reflects that part of the wages claimant received from the defendant were gratuitous in nature. Claimant testified that the wage she received as a camera bar clerk was higher than that normally paid to a camera bar clerk without modifications. Her testimony was corroborated with evidence provided by Gerry Loch which shows that the usual compensation received for a camera bar clerk ranged from $3.36 to $6.03 per hour as a part-time position, to $3.76 to $6.25 per hour as a full-time position. Because of the modification of the camera bar clerk position and the inflated wage paid to claimant, the Workers’ Compensation Court should not have included the modified camera bar clerk position in claimant’s job pool.

This case is reversed and remanded for the Workers’ Compensation Court to determine claimant’s wage supplement benefits based upon the difference between claimant’s actual wages received at the time of the injury and the wages claimant is qualified to earn in her job pool, excluding the modified camera bar clerk position.

Reversed and remanded.

JUSTICES HARRISON, McDONOUGH, GRAY and WEBER concur.


author: JUSTICE HARRISON

text:
    RONALD and NANI LINDER, Husband and Wife, Plaintiffs and Respondents, v. MISSOULA COUNTY, a governmental entity, Defendant and Appellant, and MISSOULA COUNTY, a governmental entity, Third-Party Plaintiff and Appellant, v. STATE OF MONTANA, DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES, Third-Party Defendant and Respondent.
    No. 91-146.
    Submitted Nov. 21, 1991.
    Decided Jan. 14, 1992.
    Rehearing Denied Feb. 13, 1992.
    49 St.Rep. 26.
    251 Mont. 292.
    824 P.2d 1004.

      For Appellant: Sarah M. Power argued, Gough, Shanahan, Johnson & Waterman, Helena.
    For Respondents: Chris D. Tweeten argued, Hughes, Kellner, Sullivan & Alke, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an Order of the Fourth Judicial District Court, Missoula County, Montana wherein summary judgment was granted to the State in a negligence claim surrounding an outbreak of tuberculosis in Missoula County. Missoula County urges reversal, since a previous action arising from the same outbreak incident resulted in an opposite ruling at the district court level. We affirm in part and reverse in part.

We address the following dispositive issues:

“I. Whether the State’s summary judgment motion on the contribution and actionable duty issues is barred by the doctrine of collateral estoppel when, in the context of a third-party action, a dismissal with prejudice is entered into as a result of a release and settlement agreement that involved the same issues?
“II. Does the running of the statute of limitations on an underlying action by plaintiff bar the County’s claim for contribution against the State?”

In 1979, Georgia Katie Chamberlain, a tubercular, moved to Missoula County from out of state. An outbreak of tuberculosis was later traced to Mrs. Chamberlain in Missoula County. The Montana Department of Health and Environmental Sciences and Missoula City-County Health Department monitored her condition. In 1983, numerous individuals in Missoula County, including Nani Linder, reacted positively to a tuberculosis test. In 1986, various individuals filed suit against Missoula County (County) alleging negligence in monitoring Mrs. Chamberlain’s condition. These suits can be grouped as follows:

1) Hardin v. Missoula County (Docket No. 64724)

2) Linder et al. v. Missoula County (Docket No. 64030) (included were plaintiffs “Heavner”); and

3) Various unfiled claims.

The County filed a motion to dismiss in July of 1986 which was denied. The County, in August of 1986, then filed a third-party claim against the State of Montana (State) seeking contribution in both the Hardin and Linder actions.

In November 1988, Judge Wheelis denied the State’s motion for summary judgment in the Hardin case and granted Missoula County’s cross-motion for partial summary judgment on the existence of a duty of care on the part of the State. This Court denied the State’s petition for supervisory control. After Judge Wheelis’ decision in the Hardin case, all but the Linder claim settled via a “settlement and release agreement” that specifically excepted the Linder claim. Accordingly, appropriate dismissals with prejudice were filed.

Later, the State filed a motion for summary judgment with regard to the Linder case and Missoula County filed a motion for partial summary judgment. The issues raised in the motions were almost identical to those which the State unsuccessfully argued in the Hardin action. On November 5, 1990, the District Court (Hon. Leif Erickson) granted the State’s motion while denying Missoula County’s and Missoula County appeals.

Issue I. COLLATERAL ESTOPPEL

We previously stated that:

“Collateral estoppel is a form of res judicata. Quite simply, the doctrine ‘precludes relitigation of issues actually litigated and determined in a prior suit.’ Lawlor v. National Screen Service (1955), 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed 1122. It differs from res judicata, in that res judicata bars the same parties from relitigating the same cause of action, while collateral estoppel bars the same parties, or their privies, from relitigating issues which have been decided with respect to a different cause of action. Brault v. Smith (1984), 209 Mont. 21, 679 P.2d 236.”

The doctrine has three elements:

“1. The issue has been decided in a prior adjudication and is identical to the one presented.
“2. A final judgment on the merits was issued.
“3. The party against whom the plea is asserted was a party or privity to the party in the prior adjudication.”

Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197.

To determine whether collateral estoppel is proper in the case at bar, we focus on element number two. The term “final judgment” has been interpreted in many and varying ways. What constitutes a final judgment is not always clear.

“Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.”

Montana v. United States (1979), 440 U.S. 147, 154, 99 S.Ct 970, 973, 59 L.Ed. 2d 210, 217.

In this case all but the Linders signed a “Settlement and Release Agreement.” Such a settlement is in the family of “consent judgments” and indicates that the parties chose to remove the action from the court arena. We previously stated that “the meaning of the consent judgment is to be gathered from the terms of the contract and the judgment should not be extended beyond the clear import of the terms.” First Bank Missoula v. District Court (1987), 226 Mont. 515, 523, 737 P.2d 1132, 1137. Accordingly, we look to the agreement in this case for guidance and find that the “Settlement and Release Agreement” specifically and explicitly excluded the Linder claim as follows:

“7. The State and County... have negotiated an agreement settling all claims which have arisen or may arise between the State and the County from the subject matter described herein, with the sole and exclusive exception of the claims arising from the claims asserted against the County by Ronald and Nani Linder.
“8. The State and County agree and finally compromise and settle all claims available to the County against the State arising from ... contact of any kind, direct or indirect, with Georgia Katie Chamberlain, saving and excepting only the claims filed in Missoula County Docket 64030 on behalf of Ronald and Nani Linder ... .
“11. The County acknowledges that settlement of the claims settled herein shall not be construed, in the context of the claims of Ronald and Nani Linder or in any other context, as an admission of liability on the part of the State, and that the State expressly denies liability for the claims of Ronald and Nani Linder ... .”

This evidence clearly indicates a lack of intent to include the Linders in the settlement. Nor do we find intent to foster any issue preclusion. On the contrary, looking at the settlement document set forth above, it is evident that the parties did not intend to create any finality with regard to the issues as they might arise in the Linder claim. Essentially, two groups of plaintiffs filed suit separately. All settled prior to trial save one, Nani Linder. It is obvious that the agreement lacks any issue preclusive intent, and none can be inferred.

This matter entails addressing the question of whether a consent judgment constitutes a final judgment on the merits by a court of competent jurisdiction. If so, it may possibly serve a preclusive effect on the same issues. Ordinarily, a consent judgment approving a settlement does not give rise to collateral estoppel or issue preclusion. Avondale Shipyards, Inc. v. Insured Lloyd’s (5th Cir. 1986), 786 F.2d 1265, 1272. The intent of the parties in the settlement agreement is a critical component of element number two.

“This accords with the view of a number of legal scholars, who treat the question of the extent, if any, of the finality created by a consent decree to be one of the intention of the parties. If they have in their compromise indicated clearly the intention that the decree to be entered shall not only terminate the litigation of claims but, also, determine finally certain issues, then their intention should be effectuated.”

Kaspar Wire Works, Inc. v. LECO Engineering & Mach. (5th Cir. 1978), 575 F.2d 530, 539.

A consent judgment is basically contractual in nature and its preclusive effects should be measured by the intent of the parties. A consent judgment is issue preclusive only if it is clear that the parties intended to give it that effect. Southern Pac. Communications Co. v. American Tel. & Tel. Co. (D.C. Cir. 1984), 740 F.2d 1011, 1021.

“Issue preclusion does not attach unless it is clearly shown that the parties intended that the issue be foreclosedin other litigation.... In most circumstances, it is recognized that consent agreements ordinarily are intended to preclude any further litigation on the claim presented but are not intended to preclude further litigation on any of the issues presented. Thus consent judgments ordinarily support claim preclusion but not issue preclusion.”

Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction § 4443, at 382-385 (1985) (emphasis added).

With respect to element number three, we also point out that the parties in the Hardin and Linder suits are not identical. We acknowledge the existence of the County and State as common parties, but the plaintiffs, while having similar injuries, are not the same, nor are they privies of one another.

Today, we enunciate a rule that, generally, consent agreements do not have an issue preclusive effect on future litigants, unless that is the intent of the parties. The order of dismissal in Hardin was a consent judgment based on a settlement agreement which specifically excluded the Linders. Since the agreement lacked evidence of an intent to preclude future litigation on the issues, the requisite elements of collateral estoppel are not present. Therefore, we conclude that the application of the doctrine of collateral estoppel is improper in the case at bar. Accordingly, we affirm the District Court on this issue.

Issue II. STATUTE OF LIMITATIONS

The State urges that since the statute of limitations has run on the Linders’ claim against the State under § 27-1-703, MCA, the State is “a party against whom recovery is not allowed” prohibiting the County’s contribution claim. We disagree.

The State relies on our opinion of State ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396. Deere is not on point and distinguishable from the case at bar in several respects. Deere involved two defendants, Deere and Wade’s Backhoe. Prior to trial, Deere settled for $25,000 and Wade’s Backhoe tried to join Deere under a contribution theory which we disallowed. We said that Wade’s Backhoe could not successfully join Deere because, under § 27-1-703, MCA, Deere was not a party against whom recovery was possible, due to Deere’s settlement with the plaintiff. Settlement is a way for a defendant to eliminate future liability. In the case at bar the facts are somewhat similar as to the involvement of a plaintiff and two potential defendants. However, the similarity ends here even though the plaintiffs initiated suit solely against the County and later the County sought to join the State via contribution. In the instant case, the plaintiffs settled with neither party; this is a stark difference from the facts of Deere. Clearly, this difference makes the case at bar distinguishable from Deere and the cases that follow it. (See Sprinkle v. B.N. Railroad (1989), 236 Mont. 383, 769 P.2d 1261.)

We conclude that the instant case does not fall within the purview of the statutory language of § 27-1-703, MCA, and therefore the County could conceivably have a contribution action against the State. Accordingly, we move on to the statute of limitations issue specifically.

The State asserts that since the statute of limitations has run on the plaintiffs’ original claim, the County is barred by the underlying statute of limitations and cannot initiate a contribution cause of action to join the State. This is a case of first impression in Montana.

A statute of limitations is meant to provide a reasonable period of time in which wronged parties can initiate suit and obtain redress. Such time frame also allows defendants to rest easy after the passage of a requisite period of time, so as not to keep causes of action forever lurking in the distance. The time period specified by a statute of limitations seeks to balance the interests of both parties.

We carefully consider the two pathways possible on the statute of limitations issue. The State asserts that the only reasonable choice in the case at bar is to adopt the statute of limitations of the underlying action, thereby barring the County’s contribution claim against the State. On the other hand, if such a position is taken, the County accurately points out that full redress will be denied to wronged parties especially when potential defendants are not easily identified, or when existing factual circumstances later reveal that a new unjoined party may be partially at fault. Here an existing defendant should not be prevented from obtaining contribution from another non-settling party.

In addressing this issue, we carefully assess and balance the interests of both parties to arrive at a workable but equitable general rule of law. In a situation such as the case at bar, we conclude that an emphasis must be placed on the opportunity for full redress from appropriate parties in keeping with the spirit of Montana’s stance on comparative negligence.

Idaho previously addressed this issue in Schiess v. Bates (Idaho 1984), 693 P.2d 440. In Schiess, a wrongful death action, the plaintiff’s spouse and one of her children died in a boating incident which the defendant survived. The plaintiff filed suit on behalf of her surviving children which alleged the defendant’s negligence. The defendant denied negligence and claimed contributory negligence on the part of plaintiff’s decedent spouse. Plaintiff argued that the defendant’s contributory negligence claim was barred by Idaho’s statute of limitations for probate. The Idaho court disagreed and set forth a general rule.

“The rule, recognized in nearly all jurisdictions, including Idaho, is that the cause of action for contribution or indemnity is distinct from the underlying cause of action, and the time from which the statute of limitations for such a cause of action begins to run is when the underlying claim, judgment, or settlement is paid or discharged.” Schiess, 693 P.2d at 442; citing May Trucking Co. v. International Harvester Co. (Idaho 1975), 543 P.2d 1159, 1162. In Schiess, since there was no underlying judgment, the claim for indemnity or contribution had not yet arisen, and therefore could not yet be barred by any statute of limitations.

While the statute of limitations addressed in Schiess is that of probate, we see a direct analogy and conclude that the general rule of law enunciated by the Idaho Supreme Court is appropriate for Montana. We note that our reasoning today is in harmony with our opinion in St. Paul Fire & Marine Co. v. Thompson (1969), 152 Mont. 396, 451 P.2d 98, even though St. Paul dealt with an indemnity issue rather than a contribution claim. Though contribution is controlled by statute in Montana, St. Paul is still helpful and consistent with the position we take today. In St. Paul, we stated that “the right of indemnity does not arise until the obligation arises ... the absolute right does not arise until payment has been made.” St. Paul, 152 Mont. at 403, 451 P.2d at 102.

Applying the general rule to the case at bar, the County’s contribution claim against the State is not barred by the underlying statute of limitations. The contribution claim is a distinct claim and does not arise until judgment or settlement is paid or discharged. Since the cause of action has not yet arisen it cannot be barred by the statute of limitations. Accordingly, we reverse the District Court on this issue.

Affirmed in part and reversed in part.

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


author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF MELINDA K. MILLER, Petitioner and Appellant, and TONY R. MILLER, Respondent and Respondent.
    No. 91-145.
    Submitted on briefs Dec. 31, 1991.
    Decided Jan. 14, 1992.
    49 St.Rep. 36.
    251 Mont. 300.
    825 P.2d 189.

      For Appellant: Jerrold L. Nye, Nye & Meyer, Billings.
    For Respondent: William E. Berger, Wilkins and Berger, Lewis-town.
   JUSTICE WEBER

delivered the Opinion of the Court.

Following a divorce decree, the District Court for the Tenth Judicial District, Fergus County, awarded custody of Mr. and Mrs. Miller’s two daughters and Mrs. Miller’s son, Christopher, to Mrs. Miller. Subsequently, Mr. Miller petitioned for a change of custody of all three children to his care. The District Court granted the change of custody of all three children to Mr. Miller. Mrs. Miller appeals. We affirm in part and reverse and remand in part.

We restate the issues as follows:

1. Did the District Court err in granting custody of Tiadonna and Brandi to Mr. Miller?

2. Did the District Court err in granting custody of Christopher Harrington to Mr. Miller?

3. Is Mrs. Miller entitled to costs and attorney fees?

Mr. and Mrs. Miller were married in 1980. Mrs. Miller had a son, Christopher Harrington, who was four years old at the time. The couple had two children together, Tiadonna Miller and Brandi Miller. Mr. Miller is Christopher’s step-father. He never adopted Christopher. However, Christopher lived with the couple since their marriage and Mr. Miller is the only father Christopher has known.

In July 1989, the couple were divorced. Pursuant to their signed “Property Settlement and Custody Agreement”, the parties received joint custody of the children with physical custody awarded to Mrs. Miller.

On March 26, 1990, pursuant to § 41-3-301, MCA, the State of Montana, through the Department of Family Services (DFS), removed the children from Mrs. Miller’s custody and transferred custody of all three children to Mr. Miller. Section 41-3-301, MCA, vests the DFS with the authority to remove a child from his or her home and place him in protective custody if there is reason to believe the child is in immediate or apparent danger of harm.

On June 25,1990, Mr. Miller filed a motion with the District Court for change of custody of all three children. The children had been in his care since March 26, 1990. On June 27, 1990, the District Court signed an ex parte temporary restraining order giving custody of the three children to Mr. Miller and set a show cause hearing for July 16, 1990. After the show cause hearing and two additional hearings in which extensive testimony was presented by both parties, the District Court granted custody of all three children to Mr. Miller. Mrs. Miller appeals.

I

Did the District Court err in granting custody of Tiadonna and Brandi to Mr. Miller?

Mrs. Miller maintains that the District Court erred in transferring custody of all three children to Mr. Miller because it erroneously placed the burden on her to prove she was fit rather than on Mr. Miller to establish a basis for a change of custody pursuant to § 40-4- 220, MCA. Mrs. Miller further maintains that the District Court failed to follow the appropriate statutory authority in terminating her custody of Tiadonna and Brandi. She contends that the District Court failed to make findings of serious endangerment and the order to show cause violated § 40-4-220, MCA.

Mr. Miller maintains that Montana law favors continuity of custody and because of the concerns that the children would be endangered if Mrs. Miller regained custody, it would be in the children’s best interest to remain with him. Mr. Miller maintains that he filed a motion for change of custody and temporary order alleging that the children would be endangered if made to return to Mrs. Miller. In response, the District Court ordered a temporary order retaining Mr. Miller as physical custodian of the children and setting July 16 as the date for a show cause hearing. The July 16 hearing was not a final hearing.

Sections 40-4-219, and 40-4-220, MCA, provide for modification of child custody if the court finds that there has been a change in circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. Section 40-4-220, MCA, requires that the party seeking a modification in custody shall submit, together with his moving papers, an affidavit setting forth facts supporting the requested modification.

Those procedures were followed here. After the Department of Family Services removed the children from Mrs. Miller’s custody and placed them with Mr. Miller, he filed a motion with the District Court seeking modification of the custody of all three children to his care. The District Court found that the parties presented extensive testimony at the hearings. The court also interviewed all three children pursuant to § 40-4-214, MCA, and found that all three children desired to live with Mr. Miller. Christopher was 14 years old at the time of the hearing. The other two children, Tiadonna and Brandi, were under ten years old. The court made extensive findings of fact, including:

“ — That an agent of the Fergus County DFS testified that it is in the best interest of all three children that Tony be granted their physical custody and that a return to Melinda would endanger their physical, educational and emotional well being.
“ — That Melinda has consistently been uncooperative and antagonistic and intimidating towards the children’s teachers and school authorities, without cause and against the interests of the children.
“ — That Melinda has arbitrarily refused when help was urged, available and offered, school recommendations for very basic specialized help for Tiadonna. That Melinda has indulged in inappropriate and uncontrollable behavior while on school grounds, and towards her children and school teachers and school authorities.
“ — That Melinda abuses alcohol; shortly before the hearing she was charged with Driving under the Influence and plead guilty; that she has driven the children while intoxicated; that she was a frequent customer of Bar 100 in Judith Gap often in a highly intoxicated state and was ejected from the bar and not allowed to return for one year because of her behavior.
“ — That Melinda has moved frequently and such moves were not in the best interests of the children.

“ — That Melinda has refused to allow visitation.

“ — That Melinda does not exhibit a stable lifestyle and living situation and there are no indications that her lifestyle will change in the future.
“ — That school authorities and neighbors of Tony have observed the children with Tony and find the children to be happier, more open, and more relaxed than they were while they were with Melinda.
“ — That since the children have been with Tony, they, especially Tiadonna, have made remarkable educational progress; that Tony is attentive to and cooperative with the children’s teachers and school authorities. That Tony has worked with Tiadonna in her school work, alone and in cooperation and with the assistance of her teachers and speech therapists; that the results have been most beneficial to her. Her school performance has improved greatly. Such effects have been the direct and proximate results of the help given her by and with and through Tony, which was a sharp reversal of her performance while in her mother’s custody. The latter was marked by strife and confrontation and lack of stability.
“ — That Brandi has also profited by Tony’s care, attention and assistance.”

Pursuant to § 40-4-224(3), MCA, any modification of joint custody under § 40-4-219, MCA, is considered a termination of joint custody, In re Marriage of Paradis (1984), 213 Mont. 177, 689 P.2d 1263, and the appropriate standard for the District Court to apply is one of serious endangerment. In re Marriage of Gahm & Henson (1986), 222 Mont. 300, 722 P.2d 1138. Pursuant to § 40-4-219, MCA, Mr. Miller has carried his burden of proving that if the children were to remain in the custody of Mrs. Miller, their physical, mental, moral, or emotional health would be seriously endangered and the harm likely to be caused by a change of custody is outweighed by its advantages to them. See § 40-4-219(l)(c), MCA; and Commissioners’ Note to § 40-4-219, MCA. When reviewing a District Court’s findings regarding modification of custody, this Court will not reverse the findings unless they are clearly erroneous. In re Marriage of Arbuckle (1990), 243 Mont. 10, 792 P.2d 1123. We conclude that the record supports a finding of serious endangerment as to all three children.

We hold that the District Court’s findings were not clearly erroneous and therefore affirm the District Court’s modification of the custody of Tiadonna and Brandi.

II

Did the District Court err in granting custody of Christopher Harrington to Mr. Miller?

Mrs. Miller maintains that the District Court was without jurisdiction to award the custody of Christopher to Mr. Miller because Christopher was neither Mr. Miller’s natural son, nor adopted by him.

Mr. Miller maintains that the District Court had the jurisdiction to change the custody of Christopher under § 40-4-211(4)(b), MCA, which provides that a “person other than the parent” may file a petition for custody of the child if the child is not in the physical custody of one of his parents.

Even though the finding of serious endangerment applied to Christopher, we conclude that the procedure followed in awarding custody to Mr. Miller was not appropriate where Christopher was not the natural or adopted child of Mr. Miller. We conclude a change of custody with regard to Christopher properly requires the use of the procedure contained in the child abuse, neglect and dependency statutes, § 41-3-101, et seq. In In the Matter of Doney (1977), 174 Mont. 282, 285-86, 570 P.2d 575, 577, this Court stated:

‘Where a child has allegedly been abused or neglected by his natural parent, the state has a clear duty to protect the child by means of a judicial hearing to determine whether the youth is in fact abused or neglected. There are, however, few invasions by the state into the privacy of the individual that are more extreme than that of depriving a natural parent of the custody of his children. For this reason, the legislature carefully enunciated the procedures the state must follow and the findings which the court must make before custody of a child may legally be taken from his natural parent. A judicial hearing and finding of dependency and neglect... or judicial finding of willful abandonment or willful nonsupport ... are the exclusive means by which a natural parent may be involuntarily deprived of custody of his children. In the absence of such showing, the natural parent is legally entitled to the custody of his minor children.” (Emphasis added).

Under Doney, and the procedure set forth in § 41-3-402, MCA, in cases where a youth is abused or neglected, the county attorney or an attorney hired by the county welfare department may file a petition for temporary investigative authority. Under § 41-3-403, MCA, upon the filing of that petition, the court may issue an order granting such relief as may be required for the immediate protection of the youth, and the order shall be served on the persons named in the petition, requiring that the persons appear at a show cause hearing. The court is given the power to place temporary legal custody of the youth with the Department until further order. Under § 41-3-404, MCA, in the adjudicatory hearing, the court shall determine whether the youth is a youth in need of care and meets other requirements of the statute. If the court determines that the youth is an abused, neglected or dependent child, the court shall set a date for dispositional hearing to be conducted within thirty days and order any necessary investigations. Under § 41-3-406, MCA, where a youth is found to be a youth in need of care under § 41-3-404, MCA, the court may enter its judgment making a number of different dispositions including the following: transfer legal custody to a relative or other individual who, after study by a social service agency designated by the court, is found by the court to be qualified to receive and care for the youth. From the facts presented in the present case, it appears that Mr. Miller may meet these requirements. However, before such a dispositional hearing order is granted, the procedures required by the child abuse, neglect and dependency sections must be followed.

In In re Custody of C.C., K.C. and B.C. (1985), 215 Mont. 72, 695 P.2d 816, this Court considered the question of whether the non-parent husband could be awarded custody of the child of his wife. In that case, determination of custody was made in the course of the request for dissolution of marriage. The court pointed out that a parent may not be deprived of custody unless there has been a finding of unfitness, abuse, or neglect. The court did not consider whether or not those findings could be made in the course of a dissolution proceeding. The Court also stated that the respondent, even though he was a non-parent, could be considered as a potential custodian. This Court then remanded the case so that the district court could make findings regarding the wishes of the children. A new trial was required in order to meet the custody determination requirements of § 40-4-212, MCA. We overrule C.C. K.C. and B.C. to the extent that it may be interpreted to hold that an award of custody may be made to a nonparent in the course of a marriage dissolution proceeding. As previously stated, under the facts in C.C., KC. and B.C., the procedure required was set forth in the child abuse, neglect and dependency statutes. We recognize that the District Court in the present case may have been misled by C.C., K.C. and B.C. into following the procedure used in the present case. We recognize the good faith effort on the part of the District Court but conclude that it is necessary to require additional procedures.

Because the procedure as to Christopher is one in which Mr. Miller as a non-parent is seeking custody, the Marriage and Divorce Act does not contain the proper procedure to be followed. We reaffirm the Doney holding that the procedure to be used where a non-parent seeks custody is contained in the child abuse, neglect and dependency sections, § 41-3-101, et seq. We conclude that although the District Court properly made extensive findings as to the best interests of Christopher and interviewed him as to his wishes, the District Court did not follow the appropriate statutory procedure in order to prepare the foundation for an award of custody of Christopher to Mr. Miller, the non-parent. We hold that the District Court erred in awarding custody of Christopher to Mr. Miller. We reverse and remand with regard to the custody determination of Christopher for further proceedings consistent with this opinion. In view of the District Court’s finding of serious endangerment as to Christopher, custody of Christopher shall remain with Mr. Miller for 30 days from the date of remittitur for further proceedings consistent with this opinion.

Ill

Is Mrs. Miller entitled to costs and attorney fees?

Section 40-4-219(5), MCA, provides that attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is “vexatious and constitutes harassment.” Mrs. Miller maintains that Mr. Miller’s motion for modification of custody is vexatious and constitutes harassment because “Mr. Miller did not follow the procedure for a change of custody’ as required by statute. Mr. Miller maintains that there are no facts to support her argument. We agree. The record is void of any facts to support that the modification sought is vexatious or constitutes harassment.

We hold that Mrs. Miller is not entitled to attorney fees and costs.

Affirmed in part and reversed and remanded in part.

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


author: JUSTICE HARRISON JUSTICE WEBER

text:
    COLSTRIP FACULTY ASSOCIATION, MEA/NEA, Plaintiff and Respondent, v. TRUSTEES, ROSEBUD COUNTY ELEMENTARY SCHOOL DISTRICT NO. 19 AND HIGH SCHOOL DISTRICT NO. 19, Defendants and Appellants.
    No. 91-166.
    Submitted Sept. 18, 1991.
    Decided Jan. 16, 1992.
    49 St.Rep. 43.
    251 Mont. 309.
    824 P.2d 1008.

      For Appellants: Charles E. Erdmann, Erdmann Law Office, Helena.
    For Respondent: Emilie Loring, Hilley & Loring, Missoula; Charles F. Moses.
    For Amicus, Moses Law Firm, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff, Colstrip Faculty Association (the union), initiated this suit against the defendants, Trustees of the Rosebud County Elementary School District (school district), seeking specific performance of the arbitration provision of the Collective Bargaining Agreement entered into by the union and the school district. The school district appeals from a judgment of the District Court of the Sixteenth Judicial District, Rosebud County, Montana, granting summary judgment in favor of the union and ordering the school district to submit the grievance to arbitration. We affirm.

The issues presented for review are:

1. Can a school district be compelled to arbitrate a grievance with a union concerning the dismissal of a teacher when the teacher is concurrently pursuing his statutory remedy?

2. Does collateral estoppel prevent the school district from continuing this litigation?

This action arises from the school district’s termination of a tenured teacher, Elmer Baldridge. Baldridge was a member of the teachers’ union, Colstrip Faculty Association, MEA/NEA, during his employment as a teacher in the Rosebud County school system. After his dismissal, Baldridge filed an appeal with Rosebud County Superintendent of Schools pursuant to § 20-3-210, MCA. The County Superintendent determined the school district lacked good cause to terminate Baldridge and ordered the school district to reinstate him. The school district appealed the County Superintendent’s decision to the State Superintendent of Public Instruction who vacated the order and remanded the case back to the County Superintendent. This action was stayed, but has been scheduled to be heard by the County Superintendent. At this point, it may be pending before the State Superintendent on appeal.

Concurrently, the union filed a grievance against the school district alleging a violation of the Collective Bargaining Agreement (Agreement). The union followed the grievance procedural steps set forth in the Agreement. The final step allows the grievant to submit the grievance to arbitration. Unsatisfied with the results at the prior steps, the union requested arbitration; the school district refuses to submit to arbitration.

Subsequently, the school district filed a complaint for declaratory relief in the Sixteenth Judicial District, Rosebud County, naming the union, Baldridge, and the County Superintendent as defendants. The school district petitioned the court for an injunction to compel the union and Baldridge to elect one forum in which to pursue their legal claims. The court issued a temporary restraining order and calendared a show cause hearing in which the defendants were ordered to appear and show cause why the court should not grant the injunction. Baldridge moved to dismiss the complaint arguing that the two avenues pursued by Baldridge and the union were separate and distinct causes of action.

The District Court held the show cause hearing in which all parties were represented by counsel. The union filed a memorandum contending that both avenues should proceed. The union urged the court to deny the requested relief because the school district could have bargained for an election of remedies provision in the Agreement but failed to do so, and is now bound by the terms of the Agreement which does not prohibit different defendants from pursuing their claims in different forums.

On July 19, 1988, Judge A. B. Martin denied the request for an injunction stating:

“After considering arguments and memorandum of counsel, the Court denies Plaintiff’s Motion for injunctive relief on the ground that Plaintiff’s [sic] will not suffer irreparable harm by the simultaneous prosecution of appeal by Defendant Baldridge and Plaintiff’s prosecution of its claim for declaratory judgment under the collective bargaining agreement. While concurrent proceedings may result in duplication and conflict such potential factors are outweighed by the importance of timely disposition in the several forums involved. Any conflicts that may develop can be dealt with by the Court at a later stage.”

Although the school district did not appeal Judge Martin’s ruling, it still refused to submit to arbitration and it discontinued prosecution of its complaint for declaratory relief. Consequently, the union filed a complaint and an amended complaint seeking specific performance of the arbitration provision in the Agreement. The school district filed its answer admitting most, if not all, material facts alleged in the union’s amended complaint.

The District Court granted the union’s motion for summary judgment ordering the school district to submit the grievance to arbitration. Additionally, the District Court denied the school district’s cross motion for summary judgment. The school district appeals from these judgments. We affirm.

Our answer to the second issue is dispositive of this case thereby rendering it unnecessary, at this time, to discuss the substantive issue set forth by the school district. The dispositive point in this case occurred thirty days after Judge Martin denied the school district’s motion for injunctive relief when the school district failed to appeal the order.

It is well settled that an appeal lies from an order denying an injunction. Bown v. Somers (1919), 55 Mont. 434, 178 P. 287; Rule 1(b), M.R.App.P. Since the school district failed to appeal the order within thirty days of the District Court’s denial of the injunction pursuant to Rule 5, M.R.App.P., it is bound by Judge Martin’s July 19, 1988, decision and must participate in arbitration with the union while Baldridge pursues his statutory remedies. Accordingly, the school district is collaterally estopped from raising the issue of whether Baldridge and the union should be allowed to pursue their separate claims in separate forums.

The doctrine of collateral estoppel has three elements:

“1. The issue has been decided in a prior adjudication and is identical to the one presented.
“2. A final judgment on the merits was issued.
“3. The party against whom the plea is asserted was a party or privity to the party in the prior adjudication.”

Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197; quoting In re Marriage of Stout (1985), 216 Mont. 342, 701 P.2d 729. The union asserts that each element has been established by the facts which are before this Court. We agree.

Regarding the first element, we note that the controversy in the case at bar is identical to the controversy raised by the school district in its complaint for declaratory relief and its subsequent motion for a preliminary injunction against the union, Baldridge, and the County Superintendent. In the school district’s complaint for declaratory relief, the school district petitioned the court to determine whether the school district could be forced to proceed in two separate forums; one, in final and binding arbitration to determine the union’s claims pursuant to the collective bargaining agreement and two, the statutory appeals process brought by Baldridge to determine his individual claims.

In the declaratory judgment action, the school district contended that the two avenues could not be pursued concurrently because of the possibility of conflicting decisions by the County Superintendent and the arbitrator. The union contended that the school district could have avoided this situation by bargaining for an election of remedies provision in the collective bargaining agreement. The court refused to grant the school district’s injunction, stating that both avenues could be pursued concurrently. In denying injunctive relief, the court formally adjudicated the issue in controversy.

The union brought the present action in an attempt to enforce the prior court order because the school district has continued to refuse to submit to arbitration. In the case at bar, the school district argues that it should not be forced to proceed in two forums because of the possibility of conflicting results. Again, the union contends that the school district could have avoided this situation by bargaining for an election of remedies provision in the collective bargaining agreement. Since the same issues were argued in the school district’s action for declaratory relief, they were previously adjudicated and the first element of the doctrine of collateral estoppel has been satisfied.

The second element requires the court to issue a final judgment on the merits. Arguably, the court did not issue a final judgment on the merits when it denied the school district’s injunction, thus precluding the application of collateral estoppel. However, when the school district failed to appeal the decision, failed to prosecute its complaint for declaratory relief, and waited until after the appeal in the present case was filed to dismiss the complaint for declaratory relief, the District Court’s order denying injunctive relief and directing the parties to proceed in the two separate forums became final. State ex rel. Rankin v. Wibaux County Bank (1929), 85 Mont. 532, 281 P. 341. All parties were represented by counsel during the proceedings for injunctive relief. Both the school district and the union had the opportunity, and in fact made the identical arguments in the injunction proceeding which were presented to the District Court in the case at bar. After hearing arguments from both parties, the court made a decision based on the merits of the case. Thus the second element of collateral estoppel has been satisfied.

The final element of collateral estoppel requires that the party against whom the plea is asserted was a party or in privity to the party in the prior adjudication. Smith, 241 Mont. at 59, 785 P.2d at 198. In the prior adjudication, the school district brought the action against the union and two other defendants; in the case at bar, the union brought the action against the school district. Although their roles have changed, two of the parties are identical. Therefore, the third element of collateral estoppel has been satisfied in this case.

An end to litigation must exist. Bown, 55 Mont. at 435, 178 P. at 287. Application of the doctrine of collateral estoppel is one way to end the litigation. When Judge Martin denied the school district’s injunction in the declaratory judgment action, the school district’s remedy was to appeal the order. Bown, 55 Mont. at 435-36, 178 P. at 287. When the school district failed to avail itself of that remedy, discontinued prosecution of its complaint, and failed to comply with the court’s order by refusing to submit to arbitration, the school district became bound by the court’s order which stated that two forums could be utilized concurrently.

Parties are not allowed to litigate the same matters over and over again. Smith, 241 Mont. at 59, 785 P.2d at 198. The school district had its day in court when it filed its complaint for declaratory relief, petitioned the court to enjoin the defendants from pursuing their claims, and presented arguments to support that petition. The school district did not prevail in their attempts at that stage and cannot now seek the same relief on the same set of facts in this action that was denied in the previous action. The elements of collateral estoppel have been satisfied and the school district is estopped from relitigating the issues previously determined by Judge Martin.

We affirm the decision of the District Court. The parties are directed to comply with the District Court’s order dated December 12, 1990, and submit the grievance to arbitration.

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

JUSTICE WEBER

specially concurs as follows:

While I agree that the order of the District Court requiring the School District to submit to arbitration should be affirmed, I disagree with the legal basis used by the majority for that affirmance.

The majority concluded collateral estoppel barred the School District from raising the issue of whether Baldridge and the Colstrip Faculty Association may simultaneously pursue arbitration and administrative remedies. As pointed out in the majority opinion, the second element required in collateral estoppel is that “a final judgment on the merits was issued.” The majority concludes the District Court entered a final judgment on the merits in a separate proceeding brought by the School District in which it denied a preliminary injunction against the union’s arbitration proceeding.

First, it is essential to note that the District Judge based his order denying the injunction on the grounds that Rosebud Schools showed no irreparable harm by the simultaneous prosecution of separate remedies in the different forums. Further the order states: “Any conflicts that may develop can be dealt with by the Court at a later stage.” Clearly the trial court did not enter a final decision on the merits.

Next, it is important to consider the nature of an order denying a preliminary injunction. In Dreyer v. Board of Trustees of Mid-River Electric Cooperative (1981), 193 Mont. 95, 630 P.2d 226, 229, this Court held temporary injunctions function only to preserve the statu quo pending a determination on the merits. Further, we concluded it is inappropriate for the district court or this Court on appeal, to make findings and conclusions regarding the ultimate issues during an injunctive hearing. Such findings and conclusions directed to the resolution of the ultimate issues are properly reserved for final trial on the merits.

There has not yet been a trial on the merits to resolve the issues before the Court in the present case. Thus collateral estoppel does not apply. Without considering the same, the apparent result of the majority opinion is to overrule Dreyer.

In addition, I would point out that if a district court attempts to make a decision on the merits in the course of a hearing on preliminary injunction, such a decision would be premature. Eliason and Indreland v. Evans (1978), 178 Mont. 212, 218, 583 P.2d 398, 402. In Eliason this Court concluded the trial court prematurely entered findings and conclusions on the ultimate issue during the preliminary injunctive hearing. We stated that:

“The problems inherent in trying the merits of a case at an injunctive hearing are obvious. Typically, an injunction, or a motion for an injunction is filed very early in the proceedings, usually before discovery has been completed and often before the pleadings of the parties are complete. At such juncture, the District Courts normally do not have sufficient evidence to conclusively resolve the merits of the case.”

Certainly the foregoing factual situation is present in this case.

Here the court based its denial of an injunction on the defendant’s failure to prove irreparable harm, but in no way intended to make a decision on the merits. Had it rendered a decision on the merits at the preliminary hearing, such a decision would require reversal under Eliason.

By applying collateral estoppel to this action, the majority has effectively ignored intent of the District Judge and modified the role of preliminary injunctive hearings. By holding the trial court rendered a decision on the merits of this issue, the majority opinion forecloses both parties from raising any contention of conflicts between the two methods of procedure in future proceedings. Clearly res judicata would apply under the majority opinion.

I conclude that the determination of the District Court in granting summary judgment to the plaintiff Faculty Association could be affirmed on other grounds. My hope is that this special concurrence will help to minimize the argument that Montana cases have been effectively repealed by the majority opinion.