text:
    In re the MARRIAGE OF JANATHAN LEE ALLEN, fka Janathan L. Wagner, Petitioner and Appellant, and WILLIAM T. WAGNER, Petitioner and Respondent.
    No. 87-147.
    Submitted on Briefs July 14, 1987.
    Decided Aug. 20, 1987.
    741 P.2d 773.

      Thomas W. Trigg, Missoula, for petitioner and appellant.
    Garlington, Lohn & Robinson, Larry E. Riley, Missoula, for petitioner and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Janathan Lea Allen, appellant-petitioner (wife) appeals the judgment of the District Court of the Fourth Judicial District, Missoula, County. We remand on the joint custody plan raised by issue number one and affirm all other issues.

The issues on appeal are:

(1) Did substantial evidence support the District Court’s decision to require the eight-year-old son Joseph to move annually between his mother’s home in San Diego and his father’s home in Missoula?

(2) Did substantial evidence support the court’s child support determination?

(3) Did substantial evidence support the court’s refusal to award the wife short-term maintenance to obtain employment-related education?

(4) Did substantial evidence support the court’s decision to require the wife to shoulder her attorney fees and expenses in this case?.

Jan Allen (wife) and Bill Wagner (husband) were married on December 27, 1975, in Roundup, Montana. They have one child, Joseph, now eight years old. Husband is an attorney at law and during the marriage he worked at a law firm in Billings, was a partner in his own firm in Missoula, and is now an associate in a large law firm in Missoula, Montana. Wife has an accounting degree, obtained in 1975, from the University of Montana, however, she is not a CPA, and pursued her accounting career as a staff accountant for three years until the birth of Joseph. Upon the birth of Joseph, it was agreed between the parties that she would be principally the mother and homemaker of the family, and she would no longer pursue her professional career. This continued until their separation on September 15, 1984. Subsequent to the separation, wife has worked as a real estate sales person but has earned no income. She has been a member of the City Council of the City of Missoula and received a salary of approximately $400 a month. The nine and one-half year marriage was dissolved on June 10, 1985 and the issues of physical custody, property division, child support and attorney fees were reserved. These issues were resolved by the District Court in a judgment of December 19, 1986. It is from this judgment, and the order denying the motion for reconsideration of the judgment, that this appeal lies.

The first issue concerns physical custody of Joseph. The court in its original judgment of June 10, 1985 granting the divorce, awarded the parents joint custody of the minor son Joseph and reserved the physical custody question, directing that Joseph reside with his mother, with visitations by the father. The court’s final judgment of December 19, 1986, ratified the decision of June 10, 1985 as to joint custody, and directed that Joseph would reside with the wife until July 15, 1987, with the exception of some holiday visitations. The court also held that Joseph would spend a month after that date with the husband and that in the interim period the husband, the husband’s present wife, and Joseph would be interviewed by Dr. Stratford, a psychiatrist who testified at the hearing concerning the wife and Joseph. The court directed that a hearing be held in 1987 to determine whether Joseph should spend the 1987-1988 school year with the husband. The court basically established an annually alternating living arrangement for Joseph between the wife’s residence, which is now in San Diego, and the husband’s residence in Missoula.

The court also ordered as follows:

“A rebuttable presumption will exist as to the change in residency being in Joseph’s best interest, which presumption can be overcome by competent evidence, including expert testimony by Dr. Stratford, who will be furnished Joseph’s school and medical records from San Diego.”

Two days before the final hearing on this matter, the wife informed the husband that she was moving to San Diego. However, the decision was made by the parties to hold the hearing relative to the custody of Joseph on the short notice of a change in residency. At the hearing the father then testified and recommended the arrangement of alternating school years with Joseph. The wife’s and Dr. Stratford’s testimony revealed that Joseph has a somewhat extreme asthmatic condition, which was being treated by medical personnel. In the past, due to the wife’s being the homemaker, Joseph relied heavily on his mother to assist him in these asthmatic situations and be an early warning person. The husband during the time of the marriage and when the family lived together, was compelled to work long hours. The husband admitted his actual contact with his son was not as much as it should have been because of his hours. Joseph indicated to the court he wished to be with his mother. The wife opposed the idea of alternating the physical custody of the child. She did propose at the hearing, however, that physical custody be with her during the school year and with the husband during school vacations.

Dr. Stratford had evaluated the wife and Joseph and testified as to the results, which were generally favorable. It is noted that the court provided in its order for the same type of evaluations of the husband, his present wife and Joseph to be done in 1987, since there was not sufficient time for an evaluation before the hearings.

We cannot decide whether or not substantial evidence supports the court’s order of annual alternating custody, for the court’s order and judgment were premature. The court, at the time, did not have all of the contemplated evidence before it. The court should have the opportunity of having this evidence before it before deciding the issue and creating a rebuttable presumption in the future.

We are aware that Section 40-4-224(2), MCA, provides in part “The allotment of time between parties shall be as equal as possible; however, each case shall be determined according to its own practicalities with the best interests of the child as the primary consideration.” We have stated as recently as In Re the Marriage of Symka and Dayton (Mont. 1987), [227 Mont. 408,] [739 P.2d 489,] 44 St.Rep. 1188, that this statute requiring an equal time recommendation be balanced by the practicalities of providing for the best interests of the child. The child’s best interest is the primary consideration.

The order of the District Court concerning physical custody of Joseph is set aside and this issue is remanded for the introduction of further relevant evidence and the rebuttable presumption will not exist.

As to the second issue, does substantial evidence support the court’s child support determination, the court did not abuse its discretion. The appellant contends that the child support, using the Carson case guidelines would amount to $440 per month. These are only guidelines and the court did set child support at $400 per month. In view of the decrease in the lifestyle of both parties by reason of this divorce and their lack of financial acumen, this amount is not unreasonable.

The third issue concerns whether substantial evidence supports the court’s refusal to award the wife short-term maintenance to obtain employment-related education. The wife wished to have short-term maintenance to enable her to obtain an MBA, or attend some other type of graduate school, which would take one or more years. The court, in order to raise her employment opportunities said that if she wished to go to school the husband, would pay educational costs as follows: $3,000 a year for tuition, books and fees between January 1, 1987 and December 31, 1991, subject to a maximum of three years while the wife attends graduate school, college, or other career related training program. The court found that considering the maintenance previously paid to her during the time of the divorce and custody proceedings, the fact that the husband was insolvent and the debt liability distribution as between the husband and the wife for the debts incurred during the marriage, the payment of educational maintenance as ordered was reasonable. Substantial evidence backs this decision and we will not disturb.

The last issue is whether substantial evidence supports the court’s decision that each party shall pay their own attorney fees. Attorney fees are largely within the discretion of the lower court and considering all the facts there has been no abuse of discretion.

We affirm issues two, three and four and remand this case to the District Court for determination of a physical custody plan determined to be in the best interests of the child with no rebuttal presumption as provided in the court’s previous judgment.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD ALBERT KEUP, Defendant and Appellant.
    No. 87-167.
    Submitted on Briefs July 14, 1987.
    Decided Aug. 20, 1987.
    Rehearing Denied Sept. 30, 1987.
    741 P.2d 1330.

      Richard J. Carstensen, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Brent Brooks, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Gourt.

Defendant appeals a verdict of misdemeanor assault, Section 45-5-201(l)(d), MCA, in the District Court of the Thirteenth Judicial District in and for the County of Yellowstone. The conviction was the result of a trial de novo from similar conviction in Yellowstone County Justice Court. Defendant also appeals the District Court’s denial of a motion for new trial.

Defendant was fined $500, sentenced to six months in jail with all but five days suspended and ordered to sell his firearms and donate the proceeds to charity. We affirm the District Court.

Defendant claims on appeal that the District Court erred when it denied his motion to dismiss the case at conclusion of State’s evidence. He argues that there was insufficient evidence on which a reasonable trier of fact could have found the defendant guilty. He also appeals the District Court’s decision not to allow the defendant to testify as to buckshot found in the defendant’s yard. Defendant intended to use this evidence to show that he shot into the ground, not in the direction of the complaining witness, Carolyn Pederson.

The facts in this case are relatively simple. Ms. Pederson had recently moved to a duplex next to the defendant. Ms. Pederson had two dogs, which she left confined to the backyard while she was at work. On December 23, 1985, Ms. Pederson arrived home at approximately 9:30 p.m. to find the defendant’s wife waiting to complain about the noise of the dogs. Ms. Pederson proceeded to her backyard to unleash the dogs so as to put them in the garage and away from the defendant’s property. She testified that as she was standing next to the larger dog, she turned around and saw a rifle barrel protruding from the defendant’s door, some thirty yards away. She later testified that although she could not see who was holding the rifle, the barrel was pointed at her. Ms. Pederson testified the rifle was then fired and she heard a male voice say, “This is my doggie barking. This is my doggie barking.” She retreated to her house and eventually authorities were summoned and the defendant was arrested.

Another neighbor, John Daubert, who was generally aware of the problem defendant had with the dogs, testified that when he heard the shot he told his wife “he [Keup] probably shot the dog.” In addition, the State called Peggy Zielie, a business acquaintance of the defendant, who testified that the defendant had asked her to testify in this matter. At trial she said “he had grabbed his gun and shot at the dog.”

Defendant testified that he was awakened by the noise of the dogs and went to the backdoor to see what was occurring. He testified that he saw a “big white [dog] lunging against the chain and I could see she was releasing him and he was coming straight to me ... I was afraid he was going to get loose and get out of her control.” He testified that he then “fired a shot into the ground’ ’” outside his door to “dissuade” the dog. He later testified that he did not recognize Ms. Pederson at the time, he saw “just a form, an outline.” He testified that he did not intend to harm Ms. Pederson, that the dog calmed down and he went back to bed.

Defendant was charged with violating Section 45-5-201(l)(d), MCA. That subsection reads:

“A person commits the offense of assault if he:
“(d) purposely or knowingly causes reasonable apprehension of bodily injury in another. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another, whether or not the offender believes the firearm to be loaded.”

Defendant’s first argument is that the District Court should have dismissed the case because the State failed to prove the elements of the crime. This argument is meritless. The State demonstrated that Ms. Pederson saw a rifle pointed at her from inside defendant’s home, that a shot was fired and that at the time of the shooting Ms. Pederson was standing near her dogs. The State offered evidence from Daubert and a county sheriff’s deputy that the general area was well lit. Ms. Zielie’s testimony shows that the defendant admitted he fired at the dogs, near where Ms. Pederson was standing.

Section 46-16-403, MCA, entitles the District Court to dismiss a case at the end of the State’s case, or to grant such a defense motion, when such evidence is insufficient to support a verdict of guilty. The decision whether to grant a motion to dismiss lies solely in the sound discretion of the trial court and that decision will not be disturbed unless an abuse of judicial discretion is shown. State v. Gonyea (Mont. 1987), [225 Mont. 56,] 730 P.2d 424, 426, 44 St.Rep. 39, 42; State v. Doney (Mont. 1981), [_ Mont. _,] 636 P.2d 1377, 1381, 38 St.Rep. 1707, 1711; State v. White Water (Mont. 1981), [_ Mont. __,] 634 P.2d 636, 637, 38 St.Rep. 1664, 1666; State v. Hart (Mont. 1981), [_ Mont. _,] 625 P.2d 21, 28, 38 St.Rep. 133, 139, cert. denied 454 U.S. 827, 102 S.Ct. 119. 70 L.Ed.2d 102.

The District Court did not abuse its discretion. The evidence offered by the State in this case was sufficient to convince a rational trier of fact that defendant did fire at the dog, that Ms. Pederson was standing next to the dog, that she was aware a shot had been fired in her direction. Such evidence satisfies this Court’s standard of review for sufficiency of evidence:

“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.” State v. Kutnyak (Mont. 1984) [211 Mont. 155,], 685 P.2d 901, 910, 41 St.Rep. 1277, 1288-89. See Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.

Defendant asserts the evidence is insufficient since Pederson claimed she saw a rifle and he testified he fired a “snakeload” of BB’s with a derringer, although there were two rifles in the house. Defendant claims such a shot from the derringer would have been harmless thirty feet away.

Even assuming the defendant is correct in these assertions of fact, he is still guilty of assault under the law. Section 45-5-201(1)(d) makes it an offense to point a firearm, be it a high powered rifle or a tiny derringer, in the direction of another, regardless of whether the firearm is loaded, so as to cause apprehension of bodily injury in that other person. The jury may use common experience to conclude that a person would experience fear in a given situation. State v. Lewis (Mont. 1986), [220 Mont. 418,] 715 P.2d 1064, 1067, 43 St.Rep. 492, 495; State v. Case (Mont. 1980), [190 Mont. 450,] 621 P.2d 1066, 1069, 37 St.Rep. 2057, 2059-60.

Defendant’s second basis for appeal is similarly without merit. He argues that the buckshot the defendant later located in his yard is physical evidence capable of proving the fact that defendant did not fire in the direction of Ms. Pederson. He further claims that the testimony of defendant and another proposed witness is sufficient foundation for this physical evidence. Such is patently not the case.

Section 26-1-201, MCA, vests in the District Court the authority to admit or to reject any evidence that lacks proper foundation. State v. Austad (1982), 197 Mont. 70, 94, 641 P.2d 1373, 1386. Where the proposed exhibit is not properly linked to the event in dispute, the District Court is free to refuse admission of the exhibit. State v. Fox (Mont. 1984), [212 Mont. 488,] 689 P.2d 252, 254, 41 St. Rep. 1884, 1886. In the present case, the District Court concluded that the BB pellets lacked any probative value since no ballistics tests were conducted and the pellets could not be tied to the alleged weapon or the alleged time and place of the incident except by the defendant’s testimony.

Coupled with the fact that the defendant did not notify the State of such evidence until less than a week before trial, the court decided to grant the State’s motion in limine to exclude such evidence. We fail to see any abuse of discretion by the trial court; defendant attempted to introduce tangible evidence after the thirty-day notice period set forth in Section 46-15-323(4)(c), MCA, and he was unable to vouch for it to the trial court’s satisfaction. Such evidence is properly excludable and does not form any grounds for a demand to a new trial.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY and McDONOUGH concur.


author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    ROBERT W. BENSON and Margaret Benson Greene, individually and Robert W. Benson, as personal representative of the Estate of Clara Worthen Benson, Plaintiffs and Appellants, v. GEORGE W. DIEHL and Elizabeth Diehl; the Diehl Ranch Company, a corp., and the Diehl Company, A Montana corp., the heirs of George W. Padbury; W.T. McCullough; and Kaizer Cement and Gypsum Corp., et al., Defendants and Respondents.
    No. 86-385.
    Submitted June 3, 1987.
    Decided Aug. 21, 1987.
    Rehearing Denied Dec. 2, 1987.
    745 P.2d 315.

      Morrison Law Offices; Frank Morrison, Sr., argued, Helena, Robert M. Peterson argued, Boulder, for plaintiffs and appellants.
    Gough, Shanahan, Johnson & Waterman, Ward A. Shanahan argued, Helena, for Kaiser Cement and Gypsum Corp.
    Harrison, Loendorf & Poston, James T. Harrison, Jr., Helena, for Diehl.
    Hughes, Kellner, Sullivan & Alke, John L. Alke, Helena, for McCullough.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiffs appeal from the order of the Fifth Judicial District in and for Jefferson County, Montana, granting defendants’ motion for summary judgment. We affirm the order of the District Court.

The plaintiffs/appellants, Bensons, instituted a quiet title action to approximately 120 acres in Jefferson County. The record owner of the property, both surface and mineral rights, is the defendant, Kaiser. The property was acquired from Diehl, by warranty deed recorded October 3, 1978. Kaiser has been in possession of the property since 1977 under a lease option agreement.

Bensons base their claim on a warranty deed in the chain of title dated January 18, 1944 conveying the property from Wyman P. Benson and Clara Worthen Benson to George Padbury, Jr., George Diehl and W. T. McCullough. The deed has no reservation of mineral interest. Bensons claim this deed, which was not recorded until August 21, 1950, was materially altered. They claim the original deed conveyed land to George Padbury only, and reserved the mineral rights to Bensons. McCullough is the only party to this deed who is still living. The whereabouts of the original deed is unknown, although Bensons have a document that they claim is the unsigned copy of the deed they claim was altered. This document contains a mineral reservation and George Padbury is the sole grantee.

Plaintiff Robert Benson claims his father, Wyman Benson, told him of the mineral reservation in 1945. Wyman died in 1964. His estate was probated in Idaho, but the mineral interest was not claimed as an asset. Clara Benson, Robert’s mother, who discovered the carbon copy of the claimed deed, died in 1981. Her estate also was probated in Idaho, and again the mineral reservation was not claimed as an asset in her estate.

Sometime after the deed was recorded, the various grantees engaged in partnership business activities involving their properties. Eventually the property was mortgaged and a number of quit claim deeds were filed. The District Court did not find, however, that any of this activity pointed to a material alteration of the deed or to any type of a caveat to a title examiner that the deed had been altered.

It is from these facts the District Court concluded Kaiser was entitled to summary judgment. Bensons appeal.

Summary judgment is proper when there are no genuine issues of material fact. Rule 56 M.R.Civ. P., Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509. In determining the appropriateness of summary judgment, the court may review the complete file to determine whether there is a genuine issue of material fact. Reagan v. Union Oil Co. of Calif. (Mont. 1984), [208 Mont. 1] 675 P.2d 953, 41 St.Rep. 131. It is incumbent on Bensons to present evidence of a “material and substantial nature” which raises a genuine issue of fact in order to defeat the summary judgment motion. B.M. by Berger v. State of Montana (Mont. 1985), [215 Mont. 175,] 698 P.2d 399, 401, 42 St.Rep. 272, 274.

We will consider whether there are genuine issues of material fact precluding entry of summary judgment, and whether the District Court erred in its application of the doctrine of laches.

The foregoing rules clearly prescribe the parameters within which we analyze, summary judgment. The facts on which the trial court based its ruling are not in dispute. The documents purporting to prove that the deed was altered and therefore could not have passed title to the mineral rights to Kaiser, consist of an unsigned, carbon copy warranty deed including a mineral reservation that is not on the recorded deed. Robert Benson testified his father, Wyman, told him about the mineral reservation in 1945, well before the deed was recorded. Wyman died in 1946, his estate was probated in Idaho, but the mineral interest was not claimed as an asset. Nor was it claimed when Robert’s mother’s estate was probated after her death in 1981. There is no question Kaiser relied on the public record, which contains a warranty deed with property descriptions that accurately reflect the Bensons’ homesteads. The deed was executed and notarized January 18,1944, but not recorded until August 1950. Bensons argue, however, the summary judgment order leaves numerous fact questions unanswered. They contend the District Court ignored Benson family records, which establish the negotiation and sale of the Benson homesteads to George Padbury only, and a jury should be allowed to determine which deed is the true deed.

The District Court properly concluded the Benson family records did nothing more than raise a suspicion that the recorded deed was altered. A suspicion, regardless of how particularized it may be, is not sufficient to sustain an action or to defeat a motion for summary judgment. Unsupported conclusory or speculative statements do not raise a genuine issue of material fact. The trial court has no duty to anticipate possible proof. Gates v. Life of Mont. Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063, 1066, 39 St.Rep. 16, 19.

The overriding issue is whether the public has a right to rely on the public record. Bensons appear to be arguing that a party cannot expect to rely on the public record, even after a document has been of record for more than 30 years. At the same time, however, they assumed it was placed on the public record to their benefit. We find these two positions to be contradictory, and agree with the District Court which stated:

“To sustain Plaintiff’s position in this case would require the Court to completely ignore the recording statutes ... To hold otherwise would shake the very foundation of established law and standards applicable to record titles to real property in Montana.”

Bensons cannot have it both ways. Either the public record can be relied on by all parties or it cannot. Reversing the District Court, of course, would give a jury the opportunity to determine whether the deed was altered. Such a reversal also would cast doubt as to the validity of every recorded deed and wreak havoc in the county courthouse. More importantly, it would do nothing to resolve the issue of the parties’ rights under the deed in question.

Montana’s statutory scheme provides that instruments that are made with intent to defraud are “void as against every purchaser or encumbrancer for value of the same property or the rents or profits thereof.” Section 70-20-401, MCA. The statutes, however, provide protection for purchasers in good faith and for value in Section 70-20-404, MCA:

“The rights of a purchaser or encumbrancer in good faith and for value are not to be impaired by any of the foregoing provisions of this part.”

It appears Bensons want to find the deed void pursuant to Section 70-20-401, MCA, while denying Kaiser the protection of Section 70-20-404, MCA,arguing it is not a bona fide purchaser. This is inconsistent with the facts. The District Court found “nothing in the abstract of title or the public record . . . which would defeat Kaisers’ status as a buyer in good faith without notice.” The statute cannot be read, as Bensons argue, to affect the status of a grantee as a bona fide purchaser in good faith for value. It must be read to protect the grantee who is bona fide purchaser for value. Kaiser purchased the property in good faith by relying on the public record. Nothing on the record indicated any material alteration to the deed which would put Kaiser on inquiry.

“A person, in dealing with another in respect to real estate, may rely on the record title to the property, in the absence of actual knowledge of the title in fact, or of facts sufficient to put him on inquiry in respect thereto. If this were not so, no one would be safe in purchasing real estate, or in loaning upon the strength of it as security.”

Kirgan v. Kirgan (1949), 123 Mont. 34, 38, 207 P.2d 557, 559.

The District Court found nothing that would point to a material alteration of the deed or any type of caveat to a title examiner that the deed had been altered. There is no evidence of any matter that would put a reasonable person on notice to inquire further. In short, there is nothing to suggest that Kaiser is not a bona fide purchaser in good faith and for value protected by Section 70-20-404, MCA. Under the facts of this case, this result obtains whether or not the deed was altered.

Bensons argue the District Court should not have applied the doctrine of laches. While this doctrine is not sufficient in itself to sustain Kaiser’s motion for summary judgment, the delay by Ben-sons to assert their claimed rights is of such duration and character as to render enforcement inequitable. Clayton v. Atlantic Richfield (Mont. 1986), [221 Mont. 166,] 717 P.2d 558, 43 St.Rep. 717; Brabender v. Kitt (1977), 174 Mont. 63, 568 P.2d 547. There is no absolute rule pertaining to the doctrine of laches and each case is determined upon its own special circumstances. Matter of Estate of Wallace (1980), 186 Mont. 18, 25, 606 P.2d 136, 140.

Bensons contend there must be a showing of negligence for the doctrine of laches to apply. While it may be true that Bensons had no duty to expunge a void deed to protect the public at large, they slept on their ¿rights by not ascertaining the status of their property for nearly 40 years. If they believed the deed had been altered, they should have acted to protect their interest, since the alteration they claim was made clearly worked to their disadvantage. However, for more than 40 years Bensons assumed the deed had not been altered and that they retained the mineral interest in the property. It was during this period of time they slept on their rights, which militates for application of the doctrine of laches. Robert Benson testified his father informed him of the interest in 1944 and again in 1945. He assisted in the probate of his father’s estate, yet did not list the property on the inventory and appraisement list in 1964. While personal representative of his mother’s estate, Robert Benson again failed to list the property in 1981. Apparently he made no effort on either occasion to ascertain the correct status of the property. We repeat the adage that the concept of laches is fundamental to the notion to responsibility in general, and aids the vigilant who do not sleep on, or neglect, their rights.

We also look to “unexplained delay which would render enforcement of the asserted right inequitable.” Peterson, (1984) [210 Mont. 429,] 684 P.2d at 1066. Bensons would have us find the District Court in error because it applied the doctrine of laches by deciding numerous genuine issues of material fact. These facts, however, were not in dispute. The District Court found no evidence in the record sufficient to explain Bensons’ delay. Nor do we. Absence from the state does not excuse one from sleeping on his rights. Determination that mineral interests are unprofitable is irrelevant to the issue of delay in asserting one’s ownership rights. If the deed had been altered, Bensons’ vigilance would have unearthed that fact long ago. Bensons, however, predicate their entire argument against application of the doctrine of laches on the fact the deed had been altered. Thus their position with respect to application of laches is untenable.

To permit Bensons to come forward now to claim property that they have neglected for over 40 years would work a grave injustice on Kaiser. Kaiser purchased the property, correctly assuming it had clear title, and proceeded with well announced plans to mine it. The District Court did not err in applying laches, or in granting summary judgment.

We affirm.

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

MR. JUSTICE SHEEHY,

dissenting:

The Court should first identify the true nature of the instrument that is before us in this case. We are not dealing with a void deed; we are instead dealing with an alleged “altered instrument.” There are sharp differences in legal consequences which result from an altered instrument, especially as concerns the nonconsenting party. It was explained in Smith v. Barnes (1915), 51 Mont. 202, 211, 212; 149 P.963:

“. . . Technically speaking, an ‘alteration’ occurs when a written contract is intentionally changed in material respect after execution, by or at the insistence of one of the parties, and without the consent of the other . . . The legal effect of an alteration is to extinguish all the executory obligations of the contract in favor of the parties responsible as against the parties who do not consent (Revised Codes Section 5069); and the appellant, if the change was an alteration procured by him, could not maintain this action, nor maintain any action, upon the contract, either in its original or its altered form (citing authority). But the nonconsenting party loses no right. He is not obliged to rescind or repudiate the contract as it actually was made. He may ignore the change, because it does not express his contract, and hold the other party to the contract according to its original terms (citing authority); and this, a right peculiar to the nonconsenting party in the case of an alteration, is the final effect of a spoliation as to both parties. The contract stands as originally made, without regard to the change (citing authority). So that, whether the change in question was an alteration or a spoliation, the right of Barnes to do what he seeks to do, and what the allegations of fraudulent procurement were clearly intended to entitle him to do, cannot be assailed.
“It is insisted in this connection, however, that Barnes cannot stand upon the contract as it was actually made, because of ratification or waiver. This ratification or waiver is claimed because of his retention of the first payment after knowledge of the change, and ‘because of his failure to examine his own copy or that of the bank, or to do anything to avoid the contract until May, 1911’. There is no room for this contention in the pleadings. Ratification and waiver are in the nature of estoppel, and to be available, they must be pleaded when an opportunity to make such plea is presented, (citing authority.) Not only is there no such plea, but in point of fact there could be none, because the issues were made upon the character of the contract as executed. But this claim of ratification or waiver also betrays a misconception of Barnes’ position. If, as we have held, he could ignore the change and stand upon the contract as made, he was certainly not required to avoid it. It was his right to retain the first payment, to permit the appellant to perform the contract, and to forfeit the payment, if the appellant failed. Unless Barnes received something from the appellant under the contract as changed, with knowledge of the change, his rejection, through the bank, of appellant’s tenders gave notice of his refusal to abide the change. As he was not required to avoid the true contract, and as he could ignore the change until something occurred to compel him to accept or reject it, he could not be estopped by any action or inaction which amounted to anything less than an acceptance of the change.” (Emphasis added.)

The law is, or was until this case, in case of an altered instrument, where the change was made without the consent of the other party, the nonconsenting party was not required to take any action, and thus there could be no charge against him, until he accepted the change, relating to laches, estoppel, waiver, or any like defense. In this case therefore the discussion of laches, or the effect of recording, under the facts adduced in this case, is irrelevant. Here Benson acted when he learned that the other party and his successors were relying on the altered portion of the instrument.

We should reverse this case on the fact issue that is presented. The District Court granted a summary judgment. The fact issue to be determined in this case is whether we do have before us an altered instrument. In that regard, we are presented with the evidence of McCullough, who is named as a grantee in the altered deed, and who now claims in oral testimony that he was not a party to the deed, and had no knowledge that he was a grantee under the deed. Militating against his oral testimony now is an earlier deed that he made, with others, granting to Diehl Company this and other properties, but without a mineral reservation. This case requires a trier of fact to determine whether there is actually before us an altered instrument. If it does turn out that the instrument has been altered, the legal ramifications clearly follow. Laches and statutes of limitations and recording statutes have no application until the mining on the property has begun.

The reliance of the majority upon Section 70-20-404, MCA, to protect Kaiser as an innocent purchaser for value is ill-founded. Section 70-20-404, MCA, applies only to fraudulent transfers made by grantors with fraudulent intent to defraud prior or subsequent purchases or encumbrancers. This instrument is not a fraudulent conveyance. It is an altered instrument, if it was altered, and it was altered by the grantee. This Court would do well not to mess up our property law by applying statutes that have no application.

The rule is that in the case of altered instruments, a deed fraudulently altered becomes void and a bona fide purchaser from the person altering it takes nothing by it. Mosely v. Magnolia Petroleum Co. (1941), 45 N.M. 230, 114 P.2d 740; 4 Am.Jur.2d.2c., Section 27, Alteration of Instruments. The purchaser protects himself by exacting from his qrantor the necessary covenants. The only effect of the alteration of the mineral reservation was to cloud Benson’s title; the recording of an altered deed gives no notice to anyone because the altered portion of the deed is void and even a bona fide purchaser takes nothing by the alteration. Rasmussen v. Olsen (Utah 1978), 583 P.2d 50. The doctrine of bona fide purchaser applies only to purchasers of legal title to the mineral interest. Thomas v. Roth (Wyo. 1963), 386 P.2d 926.

MR. JUSTICE HUNT, concurs with the foregoing dissent.


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JUSTIN WADE BROWN, Defendant and Appellant.
    No. 86-439.
    Submitted on Briefs April 30, 1987.
    Decided Aug. 25, 1987.
    741 P.2d 428.

      John Keith, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Patrick Paul, Cascade County Atty., Great Falls, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Justin Brown appeals a jury conviction for felony theft in the Eighth Judicial District, Cascade County. On June 12, 1986, Brown was sentenced to ten years in prison with five years suspended. He was also designated a persistent felony offender and sentenced to an additional ten years with five years suspended, to run consecutively. We affirm the conviction.

Brown raises three issues for our review:

1. Did Brown receive effective assistance of counsel?

2. Did the District Court err when it designated Brown a persistent felony offender?

3. Did the District Court err when it denied Brown’s request to represent himself?

On May 23, 1985, the Great Falls residence of Tim Murray was burglarized. Several pieces of stereo equipment, valued in excess of $300, were stolen. Two days later, Officer John Cameron of the Great Falls police was contacted by Raelene Wilson. Based on information she provided, Officer Cameron and Officer Al Redenbaugh went to the residence of Sandra LaRoque.

After receiving LaRoque’s consent to search under her mobile home, the officers found some of the stolen stereo equipment. LaRoque identified Brown as one of the people who brought the stereo equipment to her home. Fingerprints on the stereo equipment matched those of Brown. On January 2, 1986, Brown was charged with burglary and theft.

The jury was unable to reach a verdict on the burglary charge, but convicted Brown of felony theft, as specified in Section 45-6-301(1)(a), MCA: “A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and has the purpose of depriving the owner of the property.” (Emphasis added.)

Issue I

Did Brown receive effective assistance of counsel?

Brown’s trial was scheduled for Monday morning, April 7,1986. On the afternoon of April 3, 1986, Brown filed a pro se “motion and order” requesting the discharge of his court-appointed counsel, Nancy Belcheff, for ineffective assistance. He further requested a continuance of his trial date. The court held a hearing on the motion, where Brown stated: “If I have to have her representation, then I will represent myself, its as simple as that.” The court denied Brown’s request. Brown’s trial was held as scheduled with Nancy Belcheff serving as defense counsel.

At trial, Officer Cameron testified that Raelene Wilson told him Brown approached Wilson about buying some stereo equipment. Officer Redenbaugh testified that Sharon LaRoque said Brown brought the equipment to LaRoque’s trailer. Detective Renman testified that Brown was informed of his Miranda rights, and that Brown admitted to possessing the stolen equipment. Defense counsel did not object to the testimony of the three officers. Neither Wilson nor LaRoque testified at the trial. In chambers following his case-in-chief, Brown decided against taking the stand and rebutting Detective Renman’s testimony.

After the case went to the jury, the jury requested to rehear Detective Renman’s testimony about Brown’s admission. The judge allowed the court reporter to read the testimony back to the jury. Defense counsel did not object to that procedure.

Brown contends that the cumulative effect of defense counsel’s unmade objections caused his conviction and constituted ineffective assistance. Brown also contends that the readback improperly emphasized Detective Renman’s testimony.

We review issues of ineffective assistance of counsel under the standard of Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693: “First the defendant must show that counsel’s performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense.

The ineffective assistance must be apparent from the record. However, our examination of the legal defense provided to Brown shows neither deficiency in assistance, nor deprivation of a fair trial. Brown alleges tactical trial errors, but fails to show how these alleged errors reached the magnitude of deficient performance. As we have repeatedly held, the decisions on the timing and number of objections lie within counsel’s tactical discretion. State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 978, 44 St.Rep. 874, 882. In reviewing the pretrial record and trial transcript, we find that defense counsel’s performance was adequate.

Brown fails to show how defense counsel’s performance prejudiced his defense. Any sustained objections to the officers’ direct testimony would not have materially altered the case against Brown. The statements of Wilson and LaRoque were confirmed by the discovery and fingerprint analysis of the stolen property.

Furthermore, the readback of Detective Renman’s testimony did not result in undue emphasis. The court asked, “Does that answer your question?” and the juror replied, “No, it does not.” The court refused to accept any further questions. We find that Brown suffered no prejudice as a result of the readback.

We hold that defense counsel provided adequate and effective assistance. Brown stands convicted, not on the basis of unmade objections, but on the basis of substantial evidence which conclusively linked him to the stolen equipment.

Issue 2

Did the District Court err when it designated Brown a persistent felony offender?

The State served notice to Brown of its intention to seek a persistent felony offender designation. At the sentencing hearing on June 11, 1986, the State presented a certified copy of a Wyoming judgment in which Brown was convicted of forgery. Based upon this felony conviction, the District Court designated Brown a persistent felony offender, as defined in Section 46-18-501, MCA: “A ‘persistent felony offender’ is an offender who has previously been convicted of a felony and . . . less than 5 years have elapsed between commission of the present offense . . . and the previous felony conviction.”

Brown contends that the State failed to properly identify him as the person named in the Wyoming judgment. Brown admits by failing to make a specific objection to his identification, he has waived his right to assert that the certificate of prior conviction was not competent evidence. State v. Metz (1979), 184 Mont. 533, 535, 604 P.2d 102, 104. However, Brown asserts that this failure to object is another example of counsel’s ineffective assistance.

Contrary to Brown’s contentions, our review of the record at sentencing reveals that defense counsel was a diligent advocate for Brown. Her decision to not object to the Wyoming judgment was prudent, especially in light of Brown’s behavior. As the District Court told Brown at sentencing: “You don’t pick and choose your counsel. You are lucky to have one at all. It’s been the observation of this Court that she has done a tremendous job considering your lack of cooperation with her.” We find that counsel’s decision rested within the scope of effective assistance.

Furthermore, Brown never denied that he was the person named in the Wyoming judgment. If, arguendo, defense counsel had objected to the certificate, the State was prepared to verify the identity of Brown through the testimony of a deputy. Brown fails to show that any of his rights were compromised in the sentencing process.

We find no merit in Brown’s argument. We hold that the District Court properly sentenced Brown as a persistent felony offender.

Issue 3

Did the District Court err when it denied Brown’s request to represent himself?

Brown contends that the forced imposition of counsel violated his Sixth Amendment right to effectively defend himself. Brown further asserts that the court should have appointed standby counsel if Brown was competent to waive counsel.

In analyzing this issue, we note that the Sixth Amendment right to counsel includes the right of an accused to personally make his own defense. However, before a court can remove appointed counsel, the defendant must be competent to abandon his right to counsel. A trial court can appoint standby counsel and allow the defendant to represent himself, but only if the court is satisfied that the defendant has knowingly and intelligently waived his counsel. McKaskie v. Wiggins (1984), 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122, 130.

A careful review of the record, from pretrial proceedings through sentencing, confirms that defense counsel provided competent assistance. When a defendant is adequately represented by counsel, he does not have the constitutional right to also represent himself. State v. Smith (Mont. 1983), [206 Mont. 99,] 670 P.2d 96, 101, 40 St.Rep. 1533, 1538. when questioned on April 3, Brown failed to cite any specific instances of deficient performance by his counsel. Furthermore, Brown’s pretrial conduct was uncooperative. Brown’s competence to adequately represent himself was doubtful.

The decision to remove appointed counsel lies within the discretion of the trial court. Based on the demonstrated representation of Nancy Belcheif, and the potential for inadequate self-representation by Brown, we hold that the court properly denied Brown’s request.

We affirm Brown’s conviction.

MR. JUSTICES WEBER, SHEEHY, GULBRANDSON and HUNT concur.


author: MR. JUSTICE HUNT

text:
    MICHAEL J. BELL and Linda L. Bell, Plaintiffs and Respondents, v. KANNON C. RICHARDS and Marjorie P. Richards, Defendants and Appellants.
    No. 86-462.
    Submitted on Briefs June 18, 1987.
    Decided Aug. 26, 1987.
    741 P.2d 788.

      Jock B. West, Billings, for defendants and appellants.
    Matovich, Addy and Keller, John K. Addy, Billings, for plaintiffs and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District, Yellowstone County, Montana, from an order denying defendants’ motion to amend findings of fact, conclusions of law and judgment.

We reverse and remand.

The sole issue before this Court is whether the District Court erred in dismissing the defendants’ motion to amend findings of fact, conclusions of law and judgment to allow attorneys fees.

The parties in this case were involved in a contractual sale of land which the plaintiffs purchased from the defendants as an intended homesite. Upon preparation to obtain necessary permission from governmental authorities to build a house on the land, the plaintiffs discovered that the water table level was too near the surface of the ground to permit construction of a water supply or sewage disposal. To rectify the problem, the plaintiffs would have to bring in fill material, let it sit undisturbed for two years and then have the land retested. There was no assurance, even then, that the requisite permission to build would be granted.

The plaintiffs filed suit against the defendants claiming that they knew, or should have known, about the building restrictions on the land at the time of the sale. The plaintiffs allege further that due to this knowledge and knowledge of their intention to use the land as a homesite, plaintiffs should be excused from performance of their obligations under the contract and be reimbursed for amounts already paid to the defendants.

The original contract contained a provision which stated:

“Buyer has made an independent investigation of the above mentioned property and has entered into this Agreement placing full reliance upon such independent investigation and it is understood and agreed that there are no representations or warranties other than those herein expressed on the part of the Seller.”

and another which stated:

“In the event that either party may institute legal action for the enforcement of any right, obligation, provision or covenant of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee in addition to costs of suit. In addition, Seller shall be entitled to their reasonable attorney’s fee in the event Seller has to furnish a default notice to Buyer.”

The District Court dismissed plaintiffs’ complaint with prejudice and awarded defendants “costs incurred.”

The defendants moved the court to amend its findings of fact, conclusions of law and judgment pursuant to Rules 52(b) and 59(a), M.R.Civ.P. to include attorney fees. This motion was denied on the basis that: (1) defendants abandoned their claim for attorney fees by neglecting to state a claim for them in their pretrial order and (2) because no evidence relative to fees was introduced during trial and therefore cannot be added as a post-trial issue.

Rule 16, M.R.Civ.P., relating to pretrial procedures is a permissive, not a mandatory rule. Lenz v. Mehrens (1967), 149 Mont. 394, 397, 427 P.2d 297, 298.

One of the purposes of pretrial conferences is to “substantially reduce the danger of surprise at trial.” 6 Wright & Miller, Federal Practice and Procedure: Civil, Section 1522, at 566.

Rule 16(e), M.R.Civ.P., states that after a pretrial conference, a pretrial order “shall control the subsequent course of the action unless modified by a subsequent order. The order following final pretrial conference shall be modified only to prevent manifest injustice.”

“A pretrial order, however, should be liberally construed to permit any issues at trial that are ‘embraced within its language.’ United States v. First National Bank of Circle (9th Cir. 1981), 652 F.2d 882, 886-87.”

Miller v. Safeco Title Ins. (9th Cir. 1985), 758 F.2d 364, 368. This Court held in Northwestern Union Trust Co. v. Worm (1983), [204 Mont. 184,] 663 P.2d 325, 327-28, 40 St.Rep. 758, 761-62, that Rule 15(b), M.R.Civ.P., buffers the application of the language in Rule 16.

Rule 15(b), states:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

In the present case, attorney fees were contractually agreed to by the parties. The issue of whether they should be awarded is not one which would have been argued at trial. It cannot be claimed that there would be any surprise, inadequate opportunity for discovery or a lack of preparation which could unfairly prejudice the plaintiffs by awarding attorney fees to the defendants. Both Parties anticipated an award of attorney fees if they prevailed in court, so neither party argued the issue at trial.

Under Section 28-3-704, MCA, contractual rights to attorney fees are reciprocal when the party from whom one is requesting fees has an express right to attorney fees. Lasar v. Bechtel Power v. Oftedal (Mont. 1986), [222 Mont. 251,] 727 P.2d 526, 528, 43 St.Rep. 1938, 1941.

Section 28-3-704, MCA, states:

“Whenever, by virtue of the provisions of any contract or obligation in the nature of a contract made and entered into at any time after July 1, 1971, one party to such contract or obligation has an express right to recover attorney fees from any other party to the contract or obligation in the event the party having that right shall bring an action upon the contract or obligation, then in any action on such contract or obligation all parties to the contract or obligation shall be deemed to have the same right to recover attorney fees and the prevailing party in any such action, whether by virtue of the express contractual right or by virtue of this section, shall be entitled to recover his reasonable attorney fees from the losing party or parties.”

It is clear from the language contained in the parties’ contract that they intended for attorney fees to be awarded to the successful party in the event of a lawsuit. This right to attorney fees was claimed on the Bells’ complaint, the Richards’ answer and counterclaim and on the pretrial order, under “plaintiffs’ contentions,” and under “issues of fact”. Under “Issues of fact” on the pretrial order, issue No. 8 stated: “The extent of attorneys’ fees incurred by the plaintiffs/defendants.”

The defendants did not abandon their right to attorney fees by failing to mention the issue under “defendants’ contentions” on the pretrial order. The right is reciprocal. Presumably, since the plaintiffs mentioned the issue in the pretrial order, if they had been successful in the lawsuit, they would have been awarded attorney fees and costs. The plaintiffs had a contractual right to attorney fees, and pursuant to Section 28-3-704, MCA, so do the defendants.

The District Court reasoned further that, since there was no evidence introduced at trial with respect to attorney fees, to award attorney fees after a judgment was announced would amount to an issue being raised post-trial. However, the issue of attorney fees is not outside the court’s record. The contract upon which the court relied in deciding the dispute is before the court as evidence. A provision of that contract clearly provides for attorney fees to the successful party in a lawsuit concerning the contract. Also, the issue of attorney fees was raised in two places on the pretrial order.

Reversed and remanded to the District Court to determine reasonable attorney fees and for judgment to appellants for such fees.

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


text:
    PAUL RUST, Plaintiff and Respondent, v. JOHN B. KELLY and Charlotte R. Kelly, Defendants and Appellants.
    No. 86-505.
    Submitted on Briefs March 26, 1987.
    Decided Aug. 26, 1987.
    741 P.2d 786.

      Vincent J. Kozakiewicz, Dillon, for plaintiff and respondent.
    W.G. Gilbert, III, Dillon, for defendants and appellants.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

John and Charlotte Kelly appeal a judgment entered by the District Court of the Fifth Judicial District, Beaverhead County, in favor of plaintiff and respondent, Paul Rust, on his claim for recovery of a loan. We affirm.

• Although appellants raise a number of issues on appeal, the following issue is determinative:

Did the District Court err when it held Rust was entitled to full repayment, together with interest, on his investment?

In 1977, John Kelly and Paul Rust were principal owners of “Highland Log Homes,” a log home construction and sales company. During 1977, Kelly and Rust agreed to purchase a two-acre tract near Dillon, Montana. They planned to purchase the land, subdivide it and sell it at a profit. The two-acre tract is adjacent to land owned by Kelly.

On April 18, 1977, Rust advanced Kelly $4,000 or one-half of the purchase price of the property. On April 20, 1977, Kelly executed a buy-sell agreement with Richard Rankin for purchase of the property. The buy-sell agreement required that Kelly provide Rankin a $4,000 down payment, with the balance due at a later date. On December 18, 1977, Kelly paid the balance of the purchase price ($4,000) and recorded the deed. Kelly did not include Rust on the recorded deed.

Rust moved from Dillon following his investment in the two-acre tract. Rust did not return to Dillon, but empowered his brother, David Rust, to act as his agent. David Rust testified that on two occasions, in April, 1979 and in the fall of 1980, he offered to purchase the Kellys’ half of the two-acre tract. David Rust testified that on both occasions, John Kelly informed him the tract was “already sold.” David Rust also testified that on both occasions Kelly offered to reimburse Paul Rust’s $4000 investment. At trial, Kelly testified: “[I] never contended that the two acre tract was solely mine without any obligation to Rust.” Kelly also stated, “[I] personally felt, because of our joint ventures in these land deals, that Mr. Rust [did] have a moral interest in [the property].”

Plaintiff and respondent Rust brought this action to recover the $4000 investment together with interest. Defendants counterclaimed alleging that Rust abandoned the joint venture. Following a bench trial on May 12, 1986, the court found the parties had entered into a joint venture. The court also found a novation arising from defendant John Kelly’s promise to reimburse plaintiff Rust. Finally, the court found defendants had attempted to deprive plaintiff of his interest in the property.

The court ordered the defendants to repay plaintiff Rust the sum of $4000 together with interest from April 18, 1977. Defendants appeal the order of the District Court.

Issue

Did the District Court err when it held Rust was entitled to full repayment, together with interest, on his investment?

Respondent Rust and appellants John and Charlotte Kelly entered into an oral agreement to invest equal amounts of $4,000 toward the purchase of the property. John Kelly and Rust testified they purchased the property to earn a profit.

The District Court found the parties entered into a joint venture when they purchased the property. The parties do not dispute the District Court’s finding.

A joint venture is defined as:

“An association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business venture for joint profit, for which purpose they combine their efforts, property, money, skill and knowledge, without creating a partnership or a corporation pursuant to an agreement that there shall be a community of interest among them as to the purposes of the undertaking . . .” 46 Am.Jur.2d Joint Ventures, Section 1 at 21-22.

In Murphy v. Redland (1978), 178 Mont. 296, 303, 583 P.2d 1049, 1053, three ranchers entered into an agreement to purchase cattle and, upon fattening, to resell the cattle for profit. In Murphy, we stated:

“The parties here were engaged in a ‘joint enterprise’ or ‘joint venture’ looking eventually to their mutual gain .... Joint adventurers and joint enterprises are defined on principles of partnerships. Inter se, partners and joint adventurers are obligated as trustees. The common element is the fiduciary relation.”

A constructive trust may be imposed by the court in the interests of justice, to redress a wrong or prevent unjust enrichment. Murphy v. Redland, 178 Mont. at 303, 583 P.2d at 1053, citing Bradbury v. Nagelhus (1957), 132 Mont. 417, 427, 319 P.2d 503, 509.

Appellants contend that the court erred when it found a novation between the parties. Specifically, appellants argue that David Rust gave no consideration for John Kelly’s offer to repay respondent’s $4,000 investment. Secondly, appellants argue that neither Paul nor David Rust accepted Kelly’s offer within a reasonable time.

We hold the issue at hand requires an accounting between members of a joint venture. An accounting of a joint venture is equitable in nature. Murphy v. Redland, 178 Mont. at 313, 583 P.2d at 1058; Roundup Cattle Feeders v. Horpstead (1979), 184 Mont. 480, 485, 603 P.2d 1044, 1047.

Section 3-2-204, MCA, provides in pertinent part:

“In equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless for good cause a new trial or the taking of further evidence in the court below be ordered.”

Appellants are required in equity to hold the property in a constructive trust. Murphy, supra. The District Court found that appellants attempted to deprive respondent of the property. Therefore, the District Court properly held that respondent Rust was entitled to full repayment, together with interest on his investment.

After reviewing the record and the findings of the District Court, it is clear that appellants and respondent paid equal amounts of $4,000 toward the purchase of the property at issue. On December 18, 1977, appellants received title to the property and recorded it without including respondent Rust. Further, appellants maintained sole possession of the property since December 18, 1977, to the exclusion of Rust. John Kelly, on two occasions, told Paul Rust’s brother David Rust that the property was “already sold” when in fact it was not sold. Finally, John Kelly admitted that Rust had a “moral interest” in the property.

We hold that in equity respondent Rust is entitled to the return of his $4,000 investment together with interest. Appellants have breached their joint venture fiduciary duty owed to Paul Rust. The judgment of the District Court has accomplished equity. Therefore, we need not review appellants’ contention that the District Court erred when it found novation.

Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANNY ARTHUR ARLEDGE, Defendant and Appellant.
    No. 87-105.
    Submitted on Briefs Aug. 13, 1987.
    Decided Aug. 26, 1987.
    741 P.2d 781.

      Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Ted O. Lympus, Flathead County Atty., Kalispell, for plaintiff and respondent.
    Moore and Doran, Gary G. Doran, Kalispell, for defendant and appellant. respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Danny Arthur Arledge appeals from the order of the District Court, Eleventh Judicial District, Flathead County, denying his motion to withdraw his guilty plea and to vacate the sentence imposed on him under his former guilty plea.

The principal grounds relied upon by Arledge to withdraw his guilty plea are that he was improperly represented by counsel or lied to by counsel; that he was coerced by his detention officers by threats to plead guilty; that when he entered his plea of guilty before the District Court, he was not properly advised by the court of lesser-included crimes with which he could be convicted; and, in essence that his guilty plea was involuntary and without adequate knowledge of his rights. The record shows that Arledge’s contentions are completely weightless. We affirm the District Court’s refusal to allow withdrawal of Arledge’s guilty plea.

On October 28, 1986, Arledge approached Katrina Keiger in Kalispell while she was parking her car and demanded her car keys. She refused, and Arledge entered her car firing a .38 caliber revolver. Keiger began screaming and when Arledge got out of the vehicle, he pointed the revolver at her and fired again. The bullet entered the back of her neck, severed the sub-clavical artery and vein and exited through her left breast. Arledge took her wallet and fled.

Less than a half hour later, Arledge entered the residence of Brenda Miller of Kalispell, pointed a handgun at her and demanded the keys to her automobile. He forced her to lie on the floor, threatened her, took her keys and $10 from her purse. He fled in her 1977 Mercury automobile.

Later, at a road block on U.S. Highway No. 2, in Lincoln County, Montana, Arledge was arrested while traveling in a vehicle as a hitchhiker west from Kalispell. At the time of the arrest, officers found on his person a .38 caliber handgun.

Arledge was charged with attempted deliberate homicide, robbery and aggravated burglary on November 1, 1985. Steven J. Nardi, an attorney in Kalispell, was appointed to represent the defendant. The court required a psychiatric evaluation of Arledge in which it was found that though Arledge had a borderline personality disorder with antisocial traits, a history of drug and alcohol abuse, and epilepsy, he was nevertheless competent to assist in his defense and had the ability to comprehend the nature and effect of a guilty plea.

Arledge entered a plea of not guilty on January 16, 1986, but at that hearing, requested the court to appoint new counsel for him. Arledge contended that Nardi had a conflict of interest, was acting incompetently in his case, and was working with the county attorney’s office against his interests. The court reviewed with Arledge each of his allegations, and after discussion, Arledge indicated his desire for Nardi to remain as his attorney.”

Other procedures occurred before the District Court, not important in this discussion, but on April 25, 1986, Arledge came into court to enter a plea of guilty on all counts. His counsel, Steven Nardi, took the position before the court and in the presence of the defendant that Nardi opposed the entry of the guilty plea by the defendant and advised Arledge on the record that Nardi was seeking a pretrial agreement or plea bargain with the State. Arledge nevertheless persisted in entering a guilty plea.

At the entry of the guilty plea, the court interrogated the defendant and established that he was satisfied with the services of his attorney; that Arledge was not under the influence of drugs or alcohol or suffering from mental or emotional disability; that he understood his right to trial by jury, his right to confront and cross-examine witnesses, his right to counsel, his right to remain silent and his right to appeal; that Arledge understood his plea of guilty resulted in a waiver of those rights; that he was not relying on any promises nor had he been threatened or “coerced”; that the defendant was aware of the maximum penalties on all charges plus additional penalties for the use of a firearm and persistent felony offender status, plus the possibility that the sentence could be consecutive; that Arledge understood that a jury might find him guilty of lesser-included offenses; that he understood the consequences of having a felony record; that he was abandoning his defense of mental disease or defect; that he understood the substance of the charges against him and believed he was guilty of the offenses; further Arledge admitted shooting Katrina Keiger, threatening Brenda Miller and stealing her car; he also understood he was acting against the advice of his own counsel. It is enough to say at this point that the extensive examination of the defendant by the District Court at the time of his entry of plea meets the standards set by this Court in State v. Lewis (1978), 177 Mont. 474, 485, 582 P.2d 346, 352.

On May 21, 1966, defendant appeared before the court for sentencing. His testimony and that of his witness was primarily directed at his mental condition while the State’s evidence was primarily focused on the ordeal of the victim, Katrina Keiger.

Arledge was sentenced to 40 years imprisonment for the crime of attempted deliberate homicide, 20 years imprisonment for the crime of robbery, and 20 years imprisonment for the crime of aggravated burglary, all to run concurrently. In addition, he was sentenced to 5 years imprisonment for the use of a dangerous weapon and an additional 5 years as a persistent felony offender, both additional sentences to run consecutive to other sentences imposed. He was designated a dangerous offender for the purposes of parole eligibility.

On July 14, 1986, Arledge filed a motion to withdraw his plea of guilty to all charges. Gary C. Doran was appointed to replace Nardi as counsel for Arledge and a hearing was held before the court on the motion to withdraw the plea on December 12, 1986. The District Court denied his motion and Arledge appeals.

We look first at the contentions made by Arledge against his attorney Nardi. At the motion to withdraw his plea of guilty, Arledge testified that he was not advised by Nardi of certain charges that were pending against him in Missoula County, including arson, burglary, forgery and a potential probation violation. Arledge contended that had he been aware of these charges he would have instructed Nardi to contact the Missoula County Attorney’s Office to seek a combined intercounty agreement that would cover all outstanding criminal charges against him. Arledge contended he was not advised of these charges in Missoula until May 21,1986, after he had already been sentenced.

Arledge was countered in this contention by the evidence of the supervising detention officer, Theodore Stohlfuss, that a warrant for his arrest from Missoula County was served on Arledge on January 17, 1986, by Officer Joe Morin. Nardi testified that there was a discussion of these charges with Arledge in January and February, 1986.

Arledge contends that on his motion to withdraw his plea of guilty, Nardi advised him to “make sure when he got up there on the stand ... if it was your idea to plead guilty, make sure the judge understands it was your idea to plead guilty.” Arledge construes this language to mean that he should get on the stand and lie about the charges against him. We cannot and do not read that into the statement attributed to Nardi. Arledge further contends that at his sentencing hearing, Nardi failed to call the detention witnesses Bruce Hoffman, Joe Morin, and Kent Potter, who if they had testified, would have recited threats against Arledge which resulted in his plea of guilty. Arledge makes the argument that if at the sentencing hearing, the District Court had heard testimony from these witnesses, it would have found his guilty plea unacceptable, and reset the matter for trial. We will discuss the purported threats hereinbelow, but negligence cannot be attributed to his attorney because the attorney failed to call witnesses at the sentencing hearing whose testimony would result in a setting aside of the guilty plea. That contention is inconsistent with Arledge’s action in voluntarily pleading guilty against the advice of his attorney.

Arledge also points to a letter he received from Nardi dated March 13,1986, in which Nardi outlined for Arledge the legal situation facing him and the possible sentences that he might receive. The essence of the letter from Nardi to Arledge was to the effect that it would be a very “foolish move not to take the State’s offer to plea bargain.” The letter is in effect advice to Arledge to seek a plea bargain; Arledge decided against the advice of counsel not to plea bargain. Now, Arledge uses the letter to say that his attorney was threatening him to plead guilty. This contention is nonsensical.

With respect to assistance by counsel, before such assistance will be found ineffective, Arledge must show that Nardi’s performance was deficient and prejudicial to the extent that except for Nardi’s purported unprofessional errors, the result of the proceedings here would be different. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Boyer (1985), [215 Mont. 143,] 695 P.2d 829, 831, 42 St.Rep. 247, 250. Arledge’s contentions against Nardi do not begin to meet this standard.

Arledge also contends that Nardi did not attend his client’s concerns with the devotion required of an attorney, that he visited Arledge only five or six times over the course of a five month period, that he failed to provide Arledge with books or statutes to enable him to understand the proceedings in the case and that Nardi was unresponsive to Arledge’s request for certain motions to be filed. In the light of the record that Arledge entered a guilty plea against the advice of his own counsel, there is no substance to these contentions.

Arledge also contends that his guilty plea was prompted by threats received while being incarcerated in the county jail.

Here, Arledge contends that on February 4, 1986, a detention officer came to his section of the county jail with a German shepherd dog and threatened the defendant by stating, “See this dog? He’ll chew you up and spit out your hearing aid.” In addition, an officer told the defendant that “life is a bitch and you are going to die.” Also, statements were made that the officers would attend his funeral and his next home would be “Memorial Gardens.” Arledge wrote about these threats to Chief Justice Turnage of this Court on February 4, 1986; to Kalispell Mayor Ed Kennedy; and in a complaint and witness statement made to Detective Hossack on February 26, 1986. Also, Arledge contended that a detention officer had supplied him with a handcuff key, which he turned over to his attorney Nardi; that the purpose of giving Arledge the handcuff key was to encourage him to attempt to escape and that Arledge would be gunned down in the attempt. It also appears that Arledge was removed from the Flathead County Jail prior to his entering a guilty plea, and that he was held in the Kalispell city Jail for ten days to two weeks. Arledge was returned to the county jail on his own demand and no further threats were reported for the remaining two months prior to his plea.

At the time of the entry of his guilty plea, Arledge was interrogated on this point and stated:

“Q. And again, nobody here today has coerced you or threatened or promised you anything by pleading guilty: have they? A. No.
“Q. And I include in that anybody at the Sheriff’s Office. Have they been threatening you or making you do this? A. Oh, under the circumstances, your Honor, not threatening me to get me to plead. But, you know, emotionally and mental punishment, yeah, I would say yes.
“Q. What kind of emotional and mental punishment would that be? A. Oh, threats and so forth.
“Q. From the officers? A. Yes. Not the officers. The detention officers.
“Q. The detention officers. What have they said to you? A. Well, what have they said to me? Well, they made verbal threats against my life. They have took the privileges away from me which was considered privilege, you know. They have done other things. You know, they have mentally petered my brain down.
“Q. Is that the reason you are pleading guilty here today? A. No, it is not the reason.
“Q. I am concerned that I don’t want to have you feel that somebody is forcing you to plead guilty, because we certainly don’t want that. I want you to plead guilty only because you want to. A. I want to.
“Q. And are you telling the Court that anything that has happened over there has not caused you to enter the plea of guilty today? A. No.
“Q. You don’t like what they have done to you? A. No, I don’t like what they done to me, no.
“Q. But that is not the reason for the plea? A. No.
“Q. Anybody else that you feel may have coerced you or threatened you? A. No.”

In contravention to the contention that the threats of the detention officers coerced his guilty plea, the affidavit of his attorney, Nardi, showed:

“Shortly before April 25, 1986, the next regularly scheduled court appearance in this case, the defendant advised your Affiant that he was going to go into Court on the 25th of April and plead guilty to all charges pending against him, without the benefit of a plea disposition agreement or negotiations of any kind with the Flathead County Attorney’s Office. Your Affiant advised him repeatedly that this was not in his best interests and that if he was contemplating a plea, then he should let your Affiant work out the details of a plea bargain agreement to reduce his maximum exposure for sentencing purposes. The Defendant would not listen to counsel at all in that regard. He stated on numerous occasions that he wanted to plead guilty to all charges “so he could watch it blow the D.A.’s mind.” Another reason offered by the Defendant for wanting to enter pleas of guilty on all charges was that he wanted to hurry up and get to the Montana State Prison to see his friends and get settled in.”

At the hearing on the motion to withdraw his guilty plea, the court required the attendance of one of the detention officers, Bruce Hoffman, who testified that he knew of no threats against the defendant and that in fact, the defendant, after he had stopped taking his medication, had become violent against another cellmate. The District Court specifically found that no threats existed which coerced the guilty plea. Finally, the record shows that at the hearing when Arledge entered his plea of guilty, the court was careful to tell him that if he went to trial, there existed a possibility that he could be found not guilty, or that he could be found guilty of a lesser-included offense. The defendant stated that he understood this and that nevertheless, he wanted to enter his guilty plea.

The record in this case is replete that the defendant Arledge was fully accorded his rights as one charged with criminal offenses and that he voluntarily determined to enter a plea of guilty. Not only are his contentions weightless, but there is not the slightest doubt in the record that he committed the crimes with which he was charged and that the sentence imposed upon him by the District Court for those crimes was proper in the circumstances. The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of convicting an innocent man. State v. Pelke (1964), 143 Mont. 262, 271, 389 P.2d 164, 169. A District court may permit withdrawal of a guilty plea only for good cause shown. Section 46-16-105(2), MCA.

The order of the District Court denying withdrawal of Arledge’s guilty plea was proper and we affirm.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    TRUCK INSURANCE EXCHANGE, Plaintiff and Appellant, v. KATHY NELSON and Patricia P. Kent, Defendants and Respondents.
    No. 87-020.
    Submitted June 5, 1987.
    Decided Aug. 31, 1987.
    Rehearing Denied Oct. 22, 1987.
    743 P.2d 572.

      Crowley, Haughey, Hanson, Toole & Dietrich, Peter F. Habein, Billings, for plaintiff and appellant.
    Anderson, Edwards & Molloy, Donald W. Molloy, Billings, McNamer & Thompson, William R. McNamer, Billings, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Truck Insurance Exchange (TIE) appeals a November 5, 1986, amended judgment of the Thirteenth Judicial District, Still-water County, granting Nelson’s motion for summary judgment. We reverse.

TIE presents a single issue for our review:

Did the District Court err in concluding that a 1979 Ford Bronco was an “owned automobile” within the meaning of Dennis Jordet’s insurance policy?

Dennis Jordet and his wife farm near Reedpoint, Montana. Jordet is insured under a comprehensive farm policy issued by TIE. In April of 1981, his wife’s sixteen-year-old sister, Patty Kent, moved in with the Jordets and began attending high school in Columbus. In May of 1981, Kent decided to buy a 1979 Ford Bronco from Ryan Oldsmobile in Billings. Kent traded-in her personal 1975 Firebird as a down payment. However, Ryan Oldsmobile required Jordet to sign the installment sales contract because Kent was an unemployed minor.

Jordet paid the registration fees, and Kent paid him back. Kent also made the first car payment, which came due on June 28, 1981. Both Jordet and Kent are named on the owner’s certificate of registration issued on June 15, 1981, and the Montana certificate of title, issued on July 8, 1981. Jordet and TIE specifically discussed and mutually agreed to not insure the Bronco under the Jordet/TIE policy. After TIE and Jordet mutually agreed to not insure the Bronco under the Jordet/TIE policy, the Bronco was insured through Guaranty National Insurance Company.

On July 10, 1981, Kent’s friend, Kathy Nelson, was injured while a passenger in the Bronco driven by Kent. Guaranty National paid the limits of its policy to Nelson on behalf of Kent. A separate policy issued to Kent’s father also paid its limits to Nelson. Nelson later filed an action against Jordet in Silver Bow County, claiming that Jordet owned Kent’s Bronco for insurance purposes and that Nelson was entitled to additional recovery under Jordet’s policy.

Jordet’s insurance policy, in Section II(111)(3), provides:

“With respect to the insurance afforded by this policy under COVERAGE D1 [arising out of the ownership, maintenance, or use of any automobile], the unqualified word “insured” includes (a) the named insured and, as respects the ownership, maintenance or use of any automobile covered by this policy, his relatives while residents of his household; (b) any person while using an owned automobile or a hired automobile, provided the actual use of the automobile is by the named insured or with his permission.” [Emphasis added.]

The policy’s definition section with respect to Coverage Dl states: “Owned automobile means an automobile owned by the named insured.” Jordet is the named insured, but the Bronco is not listed among the described vehicles which are specifically insured under' the TIE policy. TIE sought a declaratory judgment that Kent’s Bronco was not covered within the meaning of its policy. Eventually, both parties moved for summary judgment, which the District Court granted in favor of Nelson. On November 5,1986, the District Court concluded that the Bronco was an owned automobile under the Truck Insurance Exchange policy and that the policy provides coverage to Kent.

The Silver Bow County damage case is still pending. The Stillwater County District Court’s judgment provides Nelson with supplementary coverage under Jordet’s insurance policy.

On appeal, TIE contends that the Bronco was not owned by Jordet within the meaning of the insurance policy. TIE argues that intent is prerequisite to the existence of a contract, and is the principal guide to interpretation of its insurance policy. TIE asserts that the question of ownership under an insurance policy depends upon use, possession and control, rather than bare legal title.

Nelson contends that ownership encompasses the right of control, and therefore Jordet’s failure to exercise control does not diminish legal ownership for the purposes of insurance coverage. Nelson argues that the motor vehicle statutes, Title 61, Chapter 3, MCA, create a presumption of ownership in Jordet. Nelson asserts that Jordet financed the Bronco, arranged Kent’s insurance with Guaranty National, and test drove the Bronco.

Both TIE and Nelson admit that Kent and Jordet were joint owners of the Bronco, and thereby frame the central question: Does the term “owned automobile” in Jordet’s insurance policy include the jointly-owned Bronco?

The interpretation of a contract is a question of law. When presented with an issue of law on appeal, we are not bound by the conclusions of the District Court but are free to draw our conclusions from the evidence presented. Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont. 419, 423, 584 P.2d 1298, 1300.

Our review of this issue is guided by Safeco Ins. Co. v. Lapp (Mont. 1985), [215 Mont. 196,] 695 P.2d 1310, 42 St.Rep. 289. In Lapp, a car dealership failed to process the title documents on a car it sold. The sole issue in Lapp was whether the dealership remained the owner within the meaning of its insurance policy. The Lapp Court noted that the motor vehicle statutes of Title 61, Chapter 3, MCA, are aimed primarily at public regulation of automobiles. The Court held that the statutes are relevant but not determinative of ownership for insurance purposes. The Court emphasized contractual intent and ruled that the dealership was not the owner for insurance purposes. “Ownership for insurance purposes can be determined by the intent of the parties and the language of the insurance contract.” Lapp, 695 P.2d at 1312.

In the instant case, we will not inject vehicle certification statutes into the insurance contract and thereby distort the coverage terms. Section 28-3-301, MCA, mandates that the intent of the parties shall govern the contract’s interpretation: “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” We are faced with ill-defined contract terms. Where the terms are ambiguous, we may clarify them with extrinsic evidence of the parties’ intentions. Section 28-2-905(2), MCA.

Those intentions are revealed in the record. Contrary to Nelson’s assertions, Jordet and TIE did not contract to insure the Bronco, but affirmatively sought to avoid insuring it. They specifically discussed insuring the Bronco, but rejected the idea. In his affidavit, Jordet stated: “On the advice of our insurance agent, Patty obtained her own insurance on the car in her own name through a different company. The car was not on my policy and I did not expect or intend the policy to cover it.” The record also reveals that Kent decided to purchase separate insurance. We find that the Bronco was not insured within the contemplation of the contracting parties.

In her brief, Nelson repeatedly stresses that Jordet’s signature on the installment sales contract conclusively places the Bronco on the TIE policy. However, at issue in this case is the insurance contract, not the purchase contract. The purchase of property and the insurance of property are distinct transactions.

Jordet was a solvent debtor, whose signature merely secured Kent’s purchase. In her deposition, Kent testified:

“Q. Did the salesman suggest that Dennis [Jordet] sign?
“A. Well, either that, or I didn’t get the Bronco.”

The purchase contract is essentially irrelevant to the acquisition of insurance. We will not allow the purchase agreement to dictate the interpretation of the insurance agreement. We find that Jordet’s signature on the installment sales contract does not establish ownership for insurance purposes.

Jordet’s joint ownership was an accommodation to allow Patty Kent to finance her purchase of the Bronco. Kent paid the down payment, repaid the registration and license fee, made the first and only installment payment, purchased separate insurance with Guaranty National, held the title certificate, possessed the only keys, and drove it exclusively. Jordet and Kent agreed that the Bronco was under the sole use and control of Kent. She repeatedly testified that she considered herself the sole owner of the Bronco.

“Q. Now, when you were buying the Bronco, was it your intention to buy the car for yourself?
“A. Yes.
“Q. Were you buying it for anybody else but yourself?
“A. No.
“Q. Did you ever intend it to be purchased for Dennis’ benefit?
“A. No.”

Implicit in ownership is the ability to control how, when, where and by whom the vehicle will be used. Section 70-1-101, MCA, states: “The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others.” Jordet never exercised any of the indicia of ownership which would be compatible with his insuring the Bronco. “[A]n insurance policy, like any other contract, must be given an interpretation which is reasonable and which is consonant with the manifest object and intent of the parties.” National Farmers Union Property & Gas Co. v. Colbrese (9th Cir. 1966), 368 F.2d 405, 411, cert. denied, (1967), 386 U.S. 991, 87 S.Ct. 1306, 18 L.Ed.2d 336.

We hold that the Bronco was not an “owned automobile” within the meaning of Jordet’s policy with TIE. The amended judgment entered by the District Court on November 5, 1986, is reversed.

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

MR. JUSTICE SHEEHY,

dissenting:

The decision of the District Court that the Truck Insurance Exchange policy provides coverage to Patricia Kent as an insured for the accident which occurred on July 10, 1981 should be affirmed because (1), under the policy, the 1979 Ford Bronco was an “owned automobile”; and (2), the intent of Dennis Jordet was to own the automobile for otherwise Patricia Kent could not acquire it.

Dennis Jordet alone purchased a used 1979 Ford Bronco from Ryan Oldsmobile in Billings, Montana, by entering into an installment sales contract with that dealer on May 29, 1981.

Dennis Jordet purchased the 1979 Ford Bronco because on May 29, 1981, and on July 10, 1981, Patricia Kent was a minor. She was not capable of entering into a contract for the purchase of an automobile. Her name does not appear on the installment sales contract. (“All persons are capable of contracting except minors . . . .” Section 28-2-201, MCA.) As the purchaser under the installment sales contract Jordet was legally liable to General Motors Acceptance Corporation, which took over the sales contract from Ryan Oldsmobile, for all of the obligations of the buyer under the installment sales contract, including a deficiency judgment, if foreclosure became necessary.

There is no doubt that the purchase of the automobile by Dennis Jordet was intended by him for the use and benefit by his minor sister-in-law, Patricia Kent. It was undoubtedly his intent that the payments would be made on the installment sales contract by Patricia, that she would have the free and unimpeded use of the automobile, and would maintain the automobile and pay for its upkeep and licensing. All of that is irrelevant in this case, because irrespective of her use of the automobile, or her eventual payments, she was not in any legal sense the purchaser of the automobile. As a minor she could not even disaffirm the contract for purchase, under Section 41-1-304, MCA, because her name appears nowhere on the installment sales contract.

It is further clear in the record that Dennis Jordet intended to have the automobile which he had purchased for Patricia included as his scheduled automobile on his Truck Insurance Exchange policy. When he applied, he was discouraged in this by Truck’s agent, because of costs and other considerations, and it was only then that he applied, and paid for, separate insurance for Patricia through Guaranty National Insurance Company.

It is idle therefore for the majority to contend that Dennis Jordet was not the owner of this automobile. Unless Ryan Oldsmobile consented, it was impossible under the law for Patricia to purchase the automobile because she was a minor. Their ineluctable intent was that Dennis Jordet would purchase and own the automobile so that Patricia Kent could enjoy its sole use.

Therefore this is not a case to which Safeco Insurance Company v. Lapp (Mont. 1985), [215 Mont. 196,] 695 P.2d 1310, 42 St.Rep. 289 applies. In Lapp, there is no doubt the parties intended that Lapp should own the automobile. In this case the parties intended that Jordet should own the automobile. In Lapp, the intent of the parties on ownership excluded Lapp from coverage. In this case the intent of the parties on ownership brings coverage under the Truck Insurance Exchange policy.

Ownership of the vehicle is the only issue in this case. If Dennis Jordet is the owner of the vehicle, under the retail installment sales contract, and also because of the certificate of title and certificate of registration, then the terms of Truck’s policy apply. The policy was written by Truck Insurance Exchange and needs no interpretation. The pertinent provisions of the policy which apply coverage in this case to Dennis Jordet as the owner of the 1979 Ford Bronco are these:

“Section II — Liability and Medical Coverage
“Insuring Agreements
“(1) Coverages
“The company agrees
“Coverages D(l) and D(2) - Automobile Liability and Farm Liability Insurance to pay on behalf of the insured all sums which the insured shall become legally obligated to pay because of bodily injury to any person and damage to property:
“D(l) Arising out of the ownership, maintenance, or use of any automobile.
“(3) With respect to the insurance afforded by this policy under COVERAGE D(l), the unqualified word “insured” includes (a) the named insured and, as respects the ownership, maintenance or use of any automobile covered by this policy, his relatives while residents of his household;
“(1) Owned automobile means an automobile owned by the named insured;” (Emphasis added.)

At the time of the purchase and of the accident in this case, Patricia Kent was a relative, a sister-in-law, and a resident in the same household as the insured Dennis Jordet. Therefore she qualifies as an “insured” under the policy.

It makes no difference that the Ford Bronco is not listed on the schedule of vehicles attached to the policy. The language of the policy controls. In U.S.F. & G. v. Newman (9th Cir. 1981), 656 F.2d 457, 459, it was held:

“The policy extends liability coverage to ‘any . . . person while using an owned automobile.’ ‘Owned automobile’ is defined in the policy as an ‘automobile owned by the Named Insured’ and contains no limitation to vehicles listed on the policy. The ‘named insured’ in Casualty 75 is the partnership. The effect of these provisions is to extend liability coverage to the operation of vehicles owned by the partnership, whether listed on the schedule or not.”

In addition, the 1979 Ford Bronco was an “automobile owned by the named insured” under the statutes of this State. Section 61-3-105, MCA, provides that a person appearing under the public records as the registrant of any motor vehicle is prima facie deemed the owner thereof. Dennis Jordet applied to the State’s Registrar of Motor Vehicles for a certificate of his ownership, and a certificate of ownership (title) was issued by that official showing Dennis Jordet and Patricia Kent to be the owners of the automobile in question. Section 61-3-202, MCA. When the names and addresses of more than one owner who are members of the same family are listed on the certificate of ownership, joint ownership with right of survivor-ship is presumed. Section 61-3-202(3), MCA. As an owner of the automobile, he also applied for a registration and license. Section 61-3-303, MCA.

This case involves the sale of a used motor vehicle by an auto dealer. When an auto dealer in Montana acquires a used car, he picks up from the former owner the certificate of title, assigned in blank. When the used car dealer sells the used car, it is his duty to forward to the county treasurer within four working days the assigned certificate of ownership and certificate of registration, together with the application for title by the new owner. Section 61-4-111, MCA, provides that “upon compliance by the dealer with the requirements set forth in this section, title of said motor vehicle shall be deemed to have passed to the purchaser as of the date of delivery of the vehicle to him by the dealer, and the dealer shall have no further liability or responsibility with respect to the processing of registration.”

In this case, Ryan Oldsmobile had performed the necessary functions and accordingly, under Section 61-4-111(2), MCA, title to the 1979 Ford Bronco passed to Dennis Jordet and Patricia Kent as of the date of delivery by Ryan Oldsmobile.

Under the facts of this case therefore, not only did Patricia Kent and Dennis Jordet intend that Dennis Jordet be an owner of the automobile, but under the statutes of Montana, he was an owner of the automobile.

Truck maintains that Jordet was only an “accommodation owner.” There is no such ownership estate for vehicles in Montana law; it would be irrelevant under the policy, because he was still an owner.

Kathy Nelson is a third party claimant against Patricia Kent because of an accident which occurred to the 1979 Ford Bronco insured by Truck at the time. Kathy’s right to insured coverage of her claim against Patricia Kent vested at the time of the accident. McLane v. Farmers Insurance Exchange (1967), 150 Mont. 116, 432 P.2d 98. The self-serving statements elicited after the accident from Dennis Jordet, Chris Jordet, and Patricia Kent that Patricia had the sole use of the automobile following its purchase fail to overcome this fact: Dennis Jordet was an owner of the automobile when Kathy Nelson was injured. The policy coverage applies.

MR. JUSTICE HUNT, joins in the dissent of MR. JUSTICE SHEEHY.