text:
    RONALD S. HETLAND, Claimant and Appellant, v. MAGNUM PETROLEUM, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 86-321.
    Submitted on Briefs Nov. 13, 1986.
    Decided Feb. 23, 1987.
    733 P.2d 343.

      John L. McKeon, Anaconda, for claimant and appellant.
    Allen B. Chronister, Asst. Atty. Gen., Agency Legal Services, Helena, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Ronald S. Hetland appeals a Workers’ Compensation Court ruling that Hetland was not acting within the course and scope of his employment at the time of his automobile accident and therefore was not eligible for workers’ compensation benefits. The issue on appeal is whether there is substantial evidence to support the Workers’ Compensation Court’s ruling. We affirm.

In January 1982, Hetland was hired by Magnum Petroleum as a convenience store clerk in Anaconda, Montana. The store manager instructed Hetland that his duties included cleaning the store, stocking shelves, logging the gasoline and making night deposits. The store clerks took turns working morning shifts on the weekends. The clerk working this shift was responsible for getting the keys and money from the clerk who closed the store the previous night. The manager left the details of the transfer to the clerks involved; the morning clerk could come to the store at closing time (10:00 p.m.) to retrieve the keys and money from the night clerk or the night clerk could bring the keys and money to the morning clerk’s home after closing the store, or to the store the next morning. The clerks were not given any compensation for undertaking this transfer and the store furnished no vehicles.

Hetland was scheduled to work a morning weekend shift on January 16, 1983. Hetland stopped by the store the night before to tell the clerk of his out-of-town entertainment plans for the evening, and that he would return to pick up the keys and money at 10:00 p.m., which was closing time. Hetland and his wife then departed for a nightclub in Rocker, Montana, a town approximately twenty-five miles east of Anaconda, where they met Hetland’s mother-in-law. As closing time for the store approached, Hetland borrowed his mother-in-law’s new car, drove back to Anaconda, picked up the keys and money at the store and took them to his apartment located ten to twelve blocks from the store. Hetland then drove to Fairmont Hot Springs since his wife and mother-in-law had indicated that they might move to that location, Hetland did not find his wife or mother-in-law at Fairmont and was returning to Rocker when he had an automobile accident at the Gregson interchange on Interstate 90.

Hetland testified that he felt the keys and money pickup was part of the job but further testified that once the keys and money had been accounted for, he was back on his own personal time. The Workers’ Compensation Court held that at the time of the accident, Hetland was not acting within the course and scope of his employment and therefore was not eligible for workers’ compensation benefits.

The applicable standard for determining whether an employee is entitled to workers’ compensation benefits is stated in Section 39-71-407, MCA:

“Every insurer is liable for the payment of compensation . . . to an employee of an employer it insures who receives an injury arising out of and in the course of his employment or, in the case of his death from such injury, to his beneficiaries, if any.”.
“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court.” Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 86, 580 P.2d 450, 452-53.. Hetland argues that at the time of his automobile accident he was on the last leg of a “special assignment” or “special errand” on behalf of the employer.

The Steffes case, 580 P.2d at 453, addresses the going and coming rule, and its exceptions:

“Generally, an injury sustained in going to or coming from work does not arise out of and in the course of employment within the meaning of the Workers’ Compensation Act. Hagerman v. Galen State Hospital (1977), Mont., 570 P.2d 893, 34 St.Rep. 1150. However in Hagerman this Court recognized two exceptions to the rule: (1) where employee travel pay was covered under the employment contract, and (2) where the travel was for the special benefit of the employer.”

The second exception stated above is the basis of Hetland’s argument and was recently discussed by this Court: “[tjhis exception applies where an employee is required to travel away from home on his employer’s business.” Correa v. Rexroat Tile (Mont. 1985), [217 Mont. 126,] 703 P.2d 160, 163, 42 St.Rep. 1075, 1078.

We agree with the Workers’ Compensation Court thát Hetland was not acting within the course and scope of his employment at the time of the accident and therefore is not eligible for compensation benefits. Three reasons support our conclusion. First, Hetland testified at least three times that after the keys and money were secured from the night clerk, he was free to resume his activities for the evening. Hetland based his understanding in part on what the manager had told him. Therefore when the keys and money arrived at Hetland’s apartment, Hetland’s subsequent actions no longer served any business purpose of his employer.. Second, the employer was not exerting a right of control over Hetland at the time of his accident. The right to control may exist if the employee is acting for the benefit of the employer. Courser v. Darby School Dist. No. 1 (Mont. 1984), [214 Mont. 13,] 692 P.2d 417, 420, 41 St.Rep. 2283, 2287. The clerks were responsible for carrying out the transfer. Hetland chose to drive back from Rocker that evening instead of requesting the night clerk to bring the keys and money to the store the next morning. The travel Hetland undertook, save for the ten to twelve block ride from the store to his apartment with the keys and money, cannot be said to have been for the special benefit of the employer under Steffes.

Third, public policy precludes a finding of injury within the course and scope of employment in this case. The employer is not an insurer of his employees at all times during the period of employment, Griffin v. Industrial Accident Fund (1940), 111 Mont. 110, 117, 106 P.2d 346, 348, but only during the time the employees are discharging business responsibilities on his behalf.

As the Griffin Court noted:

“[Claimant’s] employment did not require him to be at the place where he sustained the injuries. Those injuries did not arise out of and in the course of his employment. To hold that claimant is entitled to compensation here we would be obliged to say that the employer was an insurer against accident for the full twenty-four hours of a day, no matter what the employee may have been doing during the . . . hours when his regular services were at an end.”

Accordingly, we find substantial evidence to support the decision of the Workers’ Compensation Court.

Affirmed.

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

MR. JUSTICE HUNT, dissenting:

I dissent.

When employee Hetland left his job after completion of his regular hours, he was still under a duty to perform a service for his employer. In the performance of that duty, he suffered severe injuries. I would reverse the Workers’ Compensation Court.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    In re the MARRIAGE OF GWEN ELIZABETH MASSEY, Petitioner and Respondent, and GEORGE KENNETH REISER, Plaintiff and Appellant.
    No. 86-300.
    Submitted on Briefs Oct. 23, 1986.
    Decided Feb. 24, 1987.
    732 P.2d 1341.

      Meloy Law Firm, Peter M. Meloy, Helena, for respondent and appellant.
    James J. Serenar, Bozeman, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

George K. Reiser appeals from ah order of the District Court of the Eighteenth Judicial District, Gallatin County, denying his motion to set aside a default judgment entered against him. We affirm.

The issue involved in this case takes place in the context of a petition for dissolution of marriage filed over two years ago. On August 18, 1979, George Reiser, appellant, and Gwen Massey, respondent, were married in Bozeman, Montana. Marital problems subsequently arose, and on June 18, 1984, Massey filed a petition for dissolution of marriage.

On the same day, Massey filed a set of interrogatories propounded to Reiser. Several days later, Reiser was personally served with a summons requiring him to answer the petition. On July 10, 1984, Reiser was represented by attorney Karl Seel. However, what follows is a series of delays imposed by Reiser which had the effect of bringing the discovery process to a standstill.

On September 27,1984, the court entered an order declaring void a custody, support and property settlement agrefement entered into by Massey and Reiser in 1982. Reiser appealed that order to the Montana Supreme Court. However, his appeal was dismissed on January 25, 1985, for failure to file briefs in the matter.

On December 3, 1985, Massey filed a motion for sanctions in the District Court, requesting the court to impose sanctions under Rule 37(d), M.R.Civ.P., for failure by Reiser to answer the interrogatories served on him on June 19, 1984. In her brief supporting the motion, Massey requested the court to grant her the right to proceed by default and to preclude Reiser from filing any response. A copy of the motion and supporting brief was served on Reiser’s attorney, Karl Seel. Reiser was further advised that the hearing on the motion would take place on December 9, 1985.

The hearing was held on December 9, and neither Reiser nor his attorney appeared. The court ordered that Reiser had fifteen days to complete the answers to the interrogatories. The order further stated that should Reiser fail to do so within that time, he would be precluded from filing any responsive pleadings, and Massey would be permitted to proceed by default. This order was served on Reiser’s attorney. No response of any kind was submitted by Reiser.

On January 13, 1986, the court held another hearing on the motion for sanctions. Again, neither Reiser nor his attorney appeared. Since Reiser had not completed the answers to the interrogatories and had not offered any excuse for his failure to do so, the court entered a default judgment in Massey’s favor.

On January 20, 1986, notice of entry of judgment was personally served on Reiser and on his attorney. However, it was not until April 16, 1986, that Reiser filed a motion to set aside the default judgment. After a hearing on the motion and briefing by both parties, the court denied the motion to set aside the judgment. From this order, Reiser appeals.

The sole issue presented by this appeal is whether the District Court abused its discretion in entering the default judgment against Reiser as a sanction for his failure to comply with the court’s order of December 11, 1985.

Reiser contends that the default judgment should be set aside because he was never given proper notice of the application for judgment as required by Rule 55(b), M.R.Civ.P. If this were simply a default judgment matter, appellant’s argument might have some merit. However, Rule 55 does not apply in this situation; rather, Rule 37, M.R.Civ.P., is the controlling statute.

Rule 37 provides for the imposition of sanctions for failure to make discovery. Rule 37(d) states:

“If a party . . . fails ... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.”

Rule 37(b)(2) provides in part:

“Sanctions by court in which action is pending. If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just and among others the following:
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . .

It is obvious that Rule 37 does not require notice of application for default judgment to be served on the uncooperative party. Rather, it authorizes the court to impose immediate sanctions on a party who fails to comply with the court’s order compelling discovery.

Reiser maintains that the notice requirements of Rule 55 must still be complied with before a default judgment can be entered, even though it is entered as a sanction pursuant to Rule 37. We do not agree. The authority provided to courts under Rule 37 is independent of the authority provided to them under the other rules. Rule 37 is a specific statute pertaining to the consequences of a party’s failure to allow discovery. If a party violates a court order compelling discovery, as Reiser did in this case, Rule 37 authorizes the court to impose the sanctions provided therein. One of the sanctions allowed is entry of default judgment.

The United States Supreme Court has considered whether Rule 37 grants a court sufficient authority to impose the sanctions provided therein, independent of any other authority the court may possess. In Societe Internationale v. Rogers (1958), 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255, the District Court dismissed with prejudice a complaint because the plaintiff had failed to comply fully with a pretrial production order. The court found power to take this action under Rule 37(b)(2), Fed.R.Civ.P., as well as its inherent power. This rule is the same in all pertinent respects as Montana’s Rule 37. The Court of Appeals affirmed the dismissal but not on the basis of Rule 37. It concluded that the District Court was empowered to dismiss the complaint by Rule 41(b), Fed.R.Civ.P., and by its own inherent power. The Supreme Court considered the source of a district court’s authority to dismiss a complaint for failure of the plaintiff to comply with a production order. It stated:

“In our opinion, whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery by listing a variety of remedies which a court may employ as well as by authorizing any order which is ‘just.’ There is no need to resort to Rule 41(b), which appears in that part of the Rules concerned with trials and which lacks such specific references to discovery.” [Emphasis added.] Societe Internationale, 357 U.S. at 207, 78 S.Ct. at 1093, 2 L.Ed.2d at 1264. The federal courts have followed this holding by affirming the rulings of district courts entering default judgments against various parties for failure to comply with their orders compelling discovery. The defaults were entered as a sanction under Rule 37, and the moving party was not required to serve notice of application for judgment prior to the entry of default. Anderson v. Air West, Inc. (9th Cir. 1976), 542 F.2d 1090, 1093; Haskins v. Lister (8th Cir. 1980), 626 F. 2d 42, 43.

Massey filed a motion for sanctions pursuant to Rule 37 on December 3, 1985. Hearing on that motion was held on December 9, and Reiser did not appear. The court, exercising extreme leniency and patience, ordered that Reiser had fifteen days within which to answer the interrogatories. If he did not comply, he would not be permitted to file any responsive pleadings and Massey would be permitted to proceed by default. Reiser was silent. Thus, on January 13, 1986, the court entered a default judgment in Massey’s favor.

We find no abuse of discretion in the court’s ruling. The petition for dissolution and the interrogatories were served on Reiser in June 1984. No answer was ever filed. The court gave Reiser more than enough time to respond to the interrogatories. For over one and one-half years, no response was ever filed by Reiser and no excuse for his recalcitrance was ever offered. Furthermore, Reiser willfully disobeyed an order of the court compelling him to answer the interrogatories. Reiser’s refusal to allow discovery prevented the progress of Massey’s case. This type of behavior is the precise target of Rule 37. We find that the District Court was well within its discretion in imposing the sanction of default judgment.

Finally, Reiser urges that if fault existed, it was caused by his attorney and not by Reiser himself. However, Reiser does not offer any facts showing that he was not apprised of the progress of the case. From the initial filing of the petition, to the court’s denial of his motion to set aside the judgment, Reiser was represented by the same attorney. There are no facts indicating that Reiser was abandoned by his attorney. Moreover, over eighteen months elapsed from personal service of the summons to default judgment, yet Reiser made no response or communication of any kind. On the record before us, we conclude that Reiser, as well as his attorney, willfully and flagrantly violated an order of the court mandating discovery. Reiser has not presented any facts which would indicate his good faith and lack of fault.

We affirm the District Court’s denial of Reiser’s motion to set aside default judgment.

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


author: MR. JUSTICE WEBER

text:
    BONITA S. SCHELLINGER, individually, and as Personal Representative of the Estate of Robert K. Schellinger and Guardian Ad Litem of Todd R., Stacey K. and Rory K., Minor Children; and Bryan E. Schellinger, Plaintiffs and Appellants, v. MARSCHALL, PRESTON & ASSOCIATES, INC., an Idaho Corporation, Mike Rhodes and Dale Schultz, Defendants and Respondents.
    No. 86-378.
    Submitted on Briefs Nov. 20, 1986.
    Decided Feb. 24, 1987.
    733 P.2d 346.

      Bothe Law Firm, David W. Lauridsen, Columbia Falls, for plaintiffs and appellants.
    Williams Law Firm, Paul Sharkey, Missoula, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Appellants brought a wrongful death and survivorship action against Marschall, Preston and Associates and two of their employees (Marschall) alleging negligence. The District Court for the Fourth Judicial District, Missoula County, granted the summary judgment motion of Marschall. We affirm.

The issue is whether the District Court erred in granting Marschall’s motion for summary judgment.

Robert K. Schellinger was a helicopter pilot who ran his own helicopter service and carried persons for compensation. He was hired by Marschall to transport part of a geological survey crew into and out of the Cabinet Mountains in 1981. In early May 1981, Mr. Schellinger was in the process of picking up two members of the survey crew on a steep hillside when the rotors of the helicopter hit the hillside, causing the helicopter to crash. Mr. Schellinger was killed in the crash.

In their complaint, the surviving spouse and children of Mr. Schellinger allege that the defendants:

“. . . had a duty to inform, advise and direct the decedent as to the location of his helicopter in relationship to the hillside and breached their duty by failing to properly notify the decedent that the rotors of his helicopter were too close to the hillside for a safe and proper boarding by the Defendants. In addition, the Defendants . . . knew, or should have known, that if they attempted to board the helicopter, the aircraft would move downward due to the change in weight distribution and collide with the adjoining hillside.”

The District Court granted Marschall’s motion for summary judgment and the Schellingers appealed maintaining there are material facts to be resolved and thus the summary judgment order was improper.

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

Mayer Bros. v. Daniel Richard Jewelers, Inc. (Mont. 1986), [223 Mont. 397,] 726 P.2d 815, 43 St.Rep. 1821, contains a pertinent discussion of the summary judgment elements with which we are concerned:

“Thus, we may find summary judgment proper when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c), M.R.Civ.P.”

Mayer Bros., 726 P.2d at 816, 43 St.Rep. at 1823. Mayer Bros, further emphasizes the nature of the required record stating:

“Once the record discloses no genuine issue of material fact, the burden of proof shifts to the party opposing the motion for summary judgment to show by present facts of a substantial nature that a material fact issue does exist. (Cases cited.) Mere conclusory or speculative statements are insufficient to raise a genuine issue of material fact. (Case cited.) The opposing party ‘may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial.’ (Emphasis added.) Rule 56(e), M.R.Civ.P.”

Mayer Bros., 726 P. 2d at 816, 43 St.Rep. at 1823.

With the foregoing in mind, we now consider the contentions on the part of the Schellingers. In their briefs, the Schellingers attempt to raise the following issues of material fact: (1) whether the survey crew’s contact with the helicopter prior to the crash caused the helicopter crash; (2) whether the survey crew’s lack of training and experience in helicopter procedure contributed to the crash; (3) whether one of the survey crew members actually opened the door of the helicopter; and (4) whether the testimony of one of the survey crew members was credible. Unfortunately, the record does not support the contentions of the plaintiifs. The record includes the transcript of the lower court’s hearing, the depositions of Bonita S. Schellinger (wife of the deceased), Michael C. Duffield (the Schellinger’s accountant), Robert B. Evans (private investigator), James W. Kruger (helicopter pilot), and Kenneth McNees (Federal Aviation Administration), several answers to interrogatories, requests for admissions, and various documents requested for production. Nothing in this record supports the contentions of the plaintiffs with regard to the issues of material fact.

As pointed out in Mayer Bros., the responsibility of the plaintiffs is to set forth by affidavits, or as otherwise provided in Rule 56, M.R.Civ.P., specific facts showing that there is a genuine issue for trial. The defendants, Mike Rhodes and Dale Schultz, who apparently were the only eye witnesses, were not deposed nor was a sworn statement of any type obtained from them. The record just does not support the arguments on- the part of the plaintiffs.

Although we agree with the District Court’s conclusion that summary judgment was proper in this case, we do wish to point out that the standard the District Court used to reach that conclusion was incorrect. In its order granting Marschall’s summary judgment motion the District Court stated:

“Plaintiffs present no substantial admissible evidence to the effect that any negligence of the Defendants proximately caused, or was even a substantial factor in bringing about, the helicopter crash.” The test to determine whether summary judgment should be granted is not whether the party presented any “substantial admissible evidence,” but rather whether there is a genuine issue of material fact. Rule 56(c), M.R.Civ.P. We recognize that the District Court initially stated that there was no issue of material fact and that Marschall was entitled to judgment as a matter of law. However, we emphasize the correct standard to be applied in summary judgment proceedings so there will be no confusion in future cases.

After a careful review of all of the materials in the record, we conclude that the plaintiffs have not shown the existence of a genuine issue of material fact. We affirm the summary judgment of the District Court.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF TERESA JOHNSON, Petitioner and Respondent, and LEO JOHNSON, Respondent and Appellant.
    No. 86-448.
    Submitted on Briefs Dec. 31, 1986.
    Decided Feb. 24, 1987.
    732 P.2d 1345.
    Law Office of Frank Altman, Dan Boucher, Havre, for repondent and appellant.
    Kathleen Richardson, Havre, for petitioner and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Leo Johnson appeals from an order of the District Court of the Twelfth Judicial District in and for Hill County, Montana, ordering him to pay certain obligations in addition to child support, and from division of the parties’ property. We affirm in part and reverse in part and remand.

Leo and Teresa Johnson were married for approximately ten years when they separated. At the time of the separation both parties were in their mid-thirties. Both are healthy. They are the parents of two girls, ages seven and ten. The husband is employed in the construction business. The wife is a high school graduate with two years of college and further training as a legal secretary, although she never has worked as a legal secretary. She has experience as a keypunch operator and bookkeeper, and recently has done babysitting in the couple’s home.

The home, purchased during the marriage, is the parties’ major asset. Improvements have been made by the husband and the parties landscaped the property. The estimated value of the home is between $67,000 and $70,000 with a remaining debt of $40,000. The parties owe nearly $10,000 in miscellaneous debts.

Following a bench trial, the parties were awarded joint legal custody of the two minor children, with the wife retaining physical custody. The wife and children will continue to live in the family home until the younger child reaches age eighteen, at which time the home is to be sold, with the equity to be divided equally between the parties. The husband was ordered to pay the monthly mortgage payments on the home. He also was ordered to pay child support and to maintain health insurance benefits for his minor children, to pay all outstanding debts of both parties, and the wife’s attorney’s fees.

The parties personal property was valued at approximately $12,000. The husband retained only the property in his possession at the time of the divorce, including a car. The property he retained has a value of approximately $2,000. He appeals.

In essence the husband argues the District Court abused its discretion in making the awards. In reviewing the District Court’s determination this Court generally gives deference to the lower court’s discretion. “This Court will reverse the District Court . . . only if the District Court’s findings are clearly erroneous in light of the evidence in the record.” Hughes v. Hughes (Mont. 1983), [205 Mont. 69,] 666 P.2d 739, 741, 40 St.Rep. 1102, 1105. A presumption exists in favor of the District Court judgment. To bring about a reversal of the District Court the appellant must demonstrate that there was a clear abuse of discretion or an error in the District Court’s findings. In Re the Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 499, 41 St.Rep. 2419, 2422. The standard of review in determining whether the District Court abused its discretion is whether it acted arbitrarily without conscientious judgment or exceeded'the bounds of reason resulting in substantial injustice. In Re the Marriage of Laster (1982), 197 Mont. 470, 476, 643 P.2d 597, 601.

Certain of the court’s findings and conclusions clearly are erroneous and an abuse of discretion. The record shows that in determining the amount of child support payments the husband owed, the children’s monthly expenses were calculated by including two-thirds of the total monthly mortgage payments due. In addition the husband was ordered to make the mortgage payments on the family home. Thus the husband pays part of the mortgage twice. This arrangement results in a windfall to the wife at the time the home is sold. Such a windfall cannot be sustained. Tefft v. Tefft (Mont. 1981), 628 P.2d 1094, 1098, 38 St.Rep. 837, 842. Moreover, such an arrangement does not reserve to the husband financial resources sufficient to meet his needs, pursuant to Section 40-4-204(e), MCA.

The parties stipulated the husband’s gross income is $1,635 per month. The court found the wife’s income is $417 per month. Applying the Carlson formula, supra, at 500, 41 St.Rep. at 2423, the District Court ordered the husband to pay $600 per month child support. He also was ordered to maintain health insurance for the benefit of the minor children, for which he presently pays $50 per month, and mortgage payments of $465 per month. The husband testified he made monthly payments of $111 per month to First Bank on a $2,500 home improvement loan. The parties have at least $7,000 additional debt which the husband must pay. The record does not show the amount paid on this debt. The husband has $100 a month support obligation for a child of a previous marriage.

We do not find application of the Carlson formula per se to be in error. We find, however, it was error for the District Court to include a pro rata share of the mortgage payments when determining each child’s needs for purposes of application of the Carlson formula, and in addition to order the husband to make mortgage payments. This arrangement is not sustainable according to Tefft, supra. Further, the husband is then without money necessary to meet his needs. He has no other financial resources, the assets he received are non income producing, and he must replace the household furnishings which were awarded to the wife. He has the prior child support obligation. These circumstances require a remand to the District Court for further findings because they are clearly erroneous and result in substantial injustice to the husband. His financial obligations very nearly exceed his financial resources. In Re the Marriage of Keel (Mont. 1986), [223 Mont. 305,] 726 P.2d 812, 814, 43 St.Rep. 1742, 1746.

The husband also contends the court abused its discretion in ápportioning the marital estate. Our function when considering the findings and conclusions of the trial court is not to substitute our judgment for that of the trier of fact, but to determine whether there is substantial credible evidence to support the findings of fact and conclusions of law. In Re the Marriage of Thompson (Mont.1984), [208 Mont. 156,] 676 P.2d 223, 226, 41 St.Rep. 237, 241. While reasonable minds might differ as to an equitable division of the marital assets, there is substantial credible evidence to support the District Court’s division. The husband argues the court adopted wholesale the wife’s estimates on the value of personal property. There is nothing in the record, however, that the husband offered his own estimates. Had the court arrived at a different valuation for the husband’s vehicle, any change in the outcome would be insignificant. We find no abuse in the court’s division of the marital assets.

We remand this case to the District Court for a redetermination of the amount of child support the husband must pay, and a redetermination of responsibility for payment of the mortgage, consistent with this opinion.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICKY D. SCHEFFELMAN, and Terrie Lynn Scheffelman, Defendants and Appellants.
    No. 86-465.
    Submitted on Briefs Dec. 18, 1986.
    Decided Feb. 24, 1987.
    733 P.2d 348.

      Richard J. Carstensen, Billings, for defendants and appellants.
    Mike Greely, Atty. Gen., Helena, Dorothy McCarter, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Scheffelmans appeal from their convictions of felony possession of dangerous drugs and misdemeanor possession of drug paraphernalia in the District Court for the Thirteenth Judicial District, Yellowstone County. We affirm.

The issues are:

1. Was the State’s notice of intent to seek increased punishment properly allowed?

2. Were the defendant’s motions for mistrial properly denied?

3. Does the evidence support Terrie Scheffelman’s conviction of possession of drug paraphernalia?

4. Should the defendants’ felony convictions have been reduced to misdemeanor convictions?

5. Are instructions Number 6 and 7 (on mental state) constitutional?

Ricky and Terrie Scheffelman are husband and wife. In January of 1986, the Scheffelmans hosted a New Year’s party which lasted several days. Marijuana was admittedly consumed at the party.

On January 9, 1986, the Billings police executed a search warrant on the Scheffelmans’ house. In the house, police officers found 3 bags of marijuana weighing 61.55 grams, 43.23 grams, and 7.69 grams. They also found pipes, scales, roaches and nonprescription drugs. Ricky, who was home at the time, was arrested as he fled from the back of the house. Terrie was working at the time of the search. She was later brought to her home and arrested. Ricky made a statement to the police shortly after his arrest. In the statement, he admitted possession of marijuana, but denied that all the drugs in the house belonged to him.

The Scheffelmans pled not guilty and a trial was scheduled for April 7, 1986. An omnibus hearing was held March 28, 1986. No mention was made at the hearing of an intent to seek increased punishment for Ricky Scheffelman. A notice of intent to seek increased punishment was filed by the State on April 1, 1986.

Defendants testified at trial that much of the marijuana and drug paraphernalia in their house had been left by friends after the New Year’s party. Terrie stated that the scales were used to weigh Christmas packages, although Rickie admitted using them to weigh marijuana. They each testified that they jointly purchased a quarter pound of marijuana every month or two for their personal use.

Defendants were convicted by a jury after a two-day trial. Ricky was sentenced to 5 years and is currently in the Montana State Prison. Terrie received a two year deferred sentence. They appeal.

I

Was the State’s notice of intent to seek increased punishment properly allowed?

The defendants challenge the timeliness of the State’s notice of intent to seek increased punishment for Ricky Scheffelman under the persistent offender statute, Section 46-18-503, MCA. Defendants argue that notice should have been given before or at the pretrial omnibus hearing, which was held on March 28, 1986. Notice of intent to seek increased punishment was given April 1, 1986.

Section 46-18-503(1), MCA, requires:

“If the state seeks treatment of the accused as a persistent felony offender under 46-18-502, notice of that fact must be given in writing to the accused or his attorney before the entry of a plea of guilty by the accused or before the case is called for trial upon a plea of not guilty.”

This Court has held that the State can give notice to a defendant who has pled not guilty at any point prior to the moment trial begins. State v. Johnson (1978), 179 Mont. 61, 70, 585 P.2d 1328, 1333. Since trial of this case began on April 7, 1986, there has been no violation of the notice requirement on its face.

The defense nevertheless asserts that because the omnibus order did not refer to notice of intention to seek increased punishment, the State should be precluded from later issuing such a notice. However, as the State points out, the omnibus order form contained no place to record whether such notice was or was not intended to be given. Also, nothing in Section 46-18-503(1), MCA, precludes the State from giving notice after the omnibus hearing, as long as it is still before the trial. We conclude that the lower court properly allowed the State’s notice of intent to seek increased punishment.

II

Were the defendants’ motions for mistrial properly denied?

A mistrial is properly declared when, taking all the circumstances into consideration, there is a manifest necessity to do so. State v. Close (Mont. 1981), 623 P.2d 940, 945, 38 St.Rep. 177, 183, citing United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165. This Court’s review of a denial of a mistrial is limited to whether the district court abused its discretion. Close, 623 P.2d at 946.

The defense contends that twice during trial its motions for mistrial should have been granted. The first time was during examination of a forensic scientist who conducted analyses of items seized at the Scheffelman home. At the close of direct examination, counsel for the State handed the witness a list of all of the items on which the witness had performed analysis reports. The list included several items on which evidence was inadmissible, because the analyses had shown the items (a syringe and its contents) were not controlled substances. After having the witness identify the document, counsel for the State made the following statement to the court concerning the exhibit:

“Your Honor, I am not going to offer this. I wonder if the Defendant asks a number of questions from it, and I will let him, if he chooses to offer it, he certainly may.”

The defense says this was an impermissible reference to inadmissible evidence.

There is no indication that the exhibit was ever shown to the jury or that the test results on the inadmissible evidence were otherwise revealed to the jury. We conclude - that there is nothing whatever to indicate that the jury was informed of inadmissible evidence with the above statement. We hold that the District Court did not abuse its discretion in denying the defense’s motion for a mistrial.

The second time the defense claims it should have been granted a mistrial was during Terrie Scheffelman’s testimony. She testified under questioning by the State that she had been in possession of a quarter pound of marijuana two or three weeks before the date stated in the information. The State’s attorney then said:

“I guess I am kind of at a loss. I think the witness has just made a full confession to the offense. And all she said is that the time is not applied correctly on the information. And I will change the time on the information to reflect the actual fact and accept a plea at this point based on the confession.”

The defense says this statement was highly prejudicial and because of its effect on the jury, a mistrial was required.

While the statement of the State’s attorney was unusual, it did not expand upon the testimony of Terrie Scheffelman that she had a quarter pound of marijuana two to three weeks prior to the arrest, except to request to amend the information to show a different date of possession. The motion to amend was denied. We conclude that the District Court was within the bounds of its discretion in concluding that the jury’s hearing of the State’s motion to amend does not constitute manifest necessity for a new trial.

Ill

Does the evidence support Terrie Scheffelman’s conviction of possession of drug paraphernalia?

The drug paraphernalia listed in the information filed against the Scheffelmans were a hash pipe, a glass water pipe, and O’Haus scales. The defense contends that there was no evidence proving knowing possession of these items on the part of Terrie Scheffelman.

Possession of contraband may be either actual or constructive. Constructive possession occurs when a person either has control or a right to control the item. State v. Meader (1979), 184 Mont. 32, 42-43, 601 P.2d 386, 392. On appeal, this Court will affirm the jury’s verdict on possession if the circumstances reasonably justify the verdict. Meader, 601 P.2d at 392.

In Meader, the defendant was convicted of possession of dangerous drugs found in a residence in which he was staying, but which he neither owned nor leased. Since there was evidence showing that the defendant had dominion and control over the house, the jury’s finding that he had possession of the drugs in the residence was affirmed. Meader, 601 P.2d at 392. In the present case, Terrie Scheffelman was undisputedly a co-owner of the house in which the drug paraphernalia were found. Ricky Scheffelman testified that the pipes had been in the home for several days, since the New Year’s party. The pipes were found on a shelf in the bathroom used by both defendants, and immediately below exclusively feminine items. The jury viewed exhibit No. 18, a photograph of the pipes on the shelf where they were found. Terrie Scheffelman admitted that the O’Haus scales were hers. We conclude that there was ample evidence for the jury to find that Terrie Scheffelman had constructive possession of drug paraphernalia.

IV

Should the defendants’ felony convictions have been reduced to misdemeanor convictions?

The quantity of drugs involved in this matter is not sufficient to support felony charges against both defendants, they argue. They say that to support such charges, it must be proven that each one of them possessed in excess of sixty grams of marijuana. They claim the total amount of marijuana seized was less than 120 grams when weight of seeds and stems is subtracted.

It has long been the law in Montana that a controlled substance can be possessed jointly by two persons. See State v. Trowbridge (1971), 157 Mont. 527, 487 P.2d 530. Where the controlled substance is found in a place subject to the joint dominion and control of two defendants, possession may be imputed to both defendants. Meader, 601 P.2d at 392.

In the present case, the marijuana was located in a pantry and in a stoneware glass on the television. Both defendants testified that they knew where the marijuana was, and that they used it personally. After subtracting for estimated weight of seeds and stems, the total amount of marijuana seized was somewhere between 100 and 120 grams, well over the 60 gram felony weight. We conclude that there is sufficient evidence to support the jury’s finding of felony possession on the part of both defendants.

V

Are instructions Number 6 and 7 (on mental state) constitutional?

The questioned jury instructions contain the statutory definitions of “knowingly” and “purposefully”. Defendants contend these instructions do not meet the requirement of proof of intent beyond a reasonable doubt. The defendants have failed to support their argument to any significant degree. We affirm the use of these statutory definitions in jury instructions, as. this Court has done before. See, e.g., State v. Coleman (1979), 185 Mont. 299, 399, 605 P.2d 1000, 1054-55, State v. Klein (1976), 169 Mont. 350, 356-57, 547 P.2d 75, 78.

Affirmed.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICES SHEEHY and HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD P. WALKER, a/k/a Buzz, Defendant and Appellant.
    No. 86-222.
    Submitted on Briefs Oct. 23, 1986.
    Decided Feb. 26, 1987.
    733 P.2d 352.

      MR. JUSTICES SHEEHY and HUNT concurred in the result.
    Allen Beck, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, James M. Scheier, Asst. Atty. Gen., Helena, and Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Walker appeals a jury conviction for the criminal sale of dangerous drugs. On March 13, 1986, the Thirteenth Judicial District Court, Yellowstone County, sentenced Walker to seven years in the Montana State Prison.

We affirm.

Walker raises three issues for our review:

1. Did the District Court err when it denied Walker’s third motion for a continuance?

2. Did the District Court violate Walker’s right to a speedy trial?

3. Did the District Court err when it gave the State’s jury instruction on entrapment?

Walker was arrested on July 29, 1985, for selling a quarter-pound of marijuana to a police agent. On July 31, 1985, the State filed an information charging Walker with a violation of Section 45-9-101, MCA, for the criminal sale of dangerous drugs. Walker was indigent, so the District Court appointed Allen Beck as his public defender. Walker’s trial was originally set for November 12,1985. However, on the morning of trial, Mr. Beck moved for a continuance because of scheduling conflicts. The District Court granted his motion and reset trial for January 6, 1986. On January 3, 1986, Mr. Beck moved for another continuance because of scheduling conflicts. The court again granted his motion and reset trial for February 4, 1986.

On the afternoon of February 3,1986, Mr. Beck moved for another continuance because of witness unavailability. The next morning, immediately before trial, Mr. Beck also moved for a dismissal for lack of a speedy trial. The District Court denied both motions. Trial began as scheduled on February 4, 1986. The jury convicted Walker on February 7, 1986.

Issue 1

Did the District Court err when it denied Walker’s third motion for a continuance?

Walker filed his third motion for continuance one day before trial. He requested additional time to locate unidentified witnesses at unidentified addresses who could possibly support his entrapment defense. Mr. Beck stated in his motion:

“With regard to said witnesses, Mr. Walker is reluctant to disclose their names to Allen Beck, unless he (Donald Walker) first discusses the matter with them . . . The witnesses in question are with no telephone numbers and can only be reached through mutual acquaintances. These persons are in the following cities: Denver, Great Falls, and Orlando, Florida, to the best of Mr. Walker’s knowledge, information and belief.”

Judge Baugh asked Mr. Beck:

“With regard to the motion for continuance, I hear talk about witnesses. I don’t know what these witnesses can say. I don’t know where these witnesses are. Maybe even Mr. Walker doesn’t know precisely where they are . . . Do these people have names? Do they have locations? Has Mr. Walker related to you what these witnesses are supposed to be able to say?”

Mr. Beck replied that the absent witnesses might have testified that Walker was intoxicated, that the undercover agent repeatedly asked Walker for drugs, and that Walker’s intoxication made him particularly susceptible to suggestion.

We note that Walker must show reasonable cause for the continuance. As we held in State v. Van Natta (1982), 200 Mont. 312, 321, 651 P.2d 57, 61: “Before a motion for a continuance is granted, the movant must show that he has employed due diligence to procure that which he now requests additional time to procure.”

Walker discussed witness procurement with Mr. Beck on February 1, 1986, three days before trial. The District Court asked Mr. Beck why Walker did not try to contact his witnesses through the mutual acquaintances. Mr. Beck replied:

“I think the best explanation of that came from Mr. Walker when I discussed it with him yesterday, and he said over the weekend, Mr. Beck, [there] is no time to try to reach these people because they are all out drinking. Is that correct Mr. Walker?
“[Walker]: Yes.
“[Beck]: These witnesses are intervening intermediaries, he was trying to contact our people on the Southside who unfortunately are intoxicated much of the time, is that correct sir?
“[Walker]: Quite a bit.
“[Beck]: He states that they are alcoholics and transient.
“[Walker]: Yes sir.”

When Walker requested a continuance to locate absent witnesses, he assumed a dual burden. First, he needed to show that he had reasonably searched for his witnesses. Second, he needed to show that his witnesses’ testimony could have helped his defense. State v. Harris (Mont. 1984), [209 Mont. 511,] 682 P.2d 159, 161, 41 St.Rep. 866, 868-869. Walker offered no proof that the witnesses could have been located within a reasonable time. On the contrary, he was not even sure if they were in Denver, Great Falls, or Orlando. Walker also refused to identify the witnesses. Furthermore, the unidentified witnesses could only be located through intermediaries, who Walker also failed to identify. Even if the witnesses were somehow located through Walker’s network of acquaintances, Walker offered no assurances that they could support his entrapment defense. Walker’s “witness search” was neither timely nor credible. Walker failed to meet his burden of proof, by offering nothing but unsupported speculation.

Section 46-13-202(3), MCA, states:

“All motions for a continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. This section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the state to a speedy trial.”

In light of the minimal diligence shown by Walker, the District Court properly denied his motion for a continuance. The District Court is under no obligation to repeatedly adjust its schedule to accommodate Walker’s motions. The granting of a continuance by a District Court is discretionary, and not a matter of right with a defendant. Walker has failed to cite and support any specific instance of discretionary abuse. Absent a clear abuse of discretion, the court does not err when it denies such a motion. State v. Harvey (1979), 184 Mont. 423, 431, 603 P.2d 661, 666. We affirm the District Court’s denial of Walker’s motion for a continuance.

Issue 2

Did the District Court deny Walker a speedy trial?

We analyze speedy trial issues under a four-part test, which was first articulated in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. Citing Barker in State v. Robbins (1985), [218 Mont. 107,] 708 P.2d 227, 233, 42 St.Rep. 1440, 1445, we noted that the factors of the test are:

(1) length of the delay;

(2) reasons for the delay;

(3) defendant’s assertion of his right to a speedy trial; and

(4) prejudice to the defendant.

These factors are related and “must be considered together with such other circumstances as may be relevant. The Court must still engage in a difficult and sensitive balancing process.” State v. Larson (1981), 623 P.2d 954, 957, 38 St.Rep. 213, 215.

The length of delay, from the date of Walker’s arrest to the date of his trial, was 189 days. When analyzing an acceptable length of delay, this Court will consider both the State’s and the defendant’s actions in the delay.

“For the State, the question is whether the prosecution was pursued with reasonable diligence ... On the other side of the coin, it must be determined what percentage of the delay is chargeable to the defendant and this amount of time must accordingly be deducted from the total delay.”

State v. Freeman (1979), 183 Mont. 334, 338-339, 599 P.2d 368, 371.

Walker’s motions for continuances accounted for 83 days of the delay. But for Walker’s motions, the delay would only have been 106 days. These 106 days are well within our acceptable delay limit. Robbins, 708 P.2d at 234, 42 St.Rep. at 1447; State v. Kelly (1983), 203 Mont. 159, 661 P.2d 26, 27, 40 St.Rep. 364, 365.

Walker did not assert his right to a speedy trial until the morning of trial. We recently upheld the denial of a motion to dismiss for lack of a speedy trial, which was filed on the day of trial. State v. Cutner (1984), [214 Mont. 189,] 692 P.2d 466, 468, 41 St.Rep. 2404, 2407. Walker’s assertion was not timely, and the District Court properly denied his motion.

Walker also failed to show any unfair prejudice as a result of the District Court’s denial of his motion. Although Walker was incarcerated for approximately six months prior to trial, incarceration alone is insufficient to prove prejudice. State v. Boyer (1984), [208 Mont. 258,] 676 P.2d 787, 790, 41 St.Rep. 321, 324.

In summary, we will not allow Walker’s motions for continuance to serve a secondary purpose as grounds for denial of the right to a speedy trial. We find no merit in his claim.

Issue 3

Did the District Court err when it gave the State’s jury instruction on entrapment?

Court’s Instruction No. 13 instructed the jury on the defense of entrapment, and is based upon a model instruction in Devitt and Blackmar, Federal Jury Practice and Instructions, Section 13.09 (1977). Instruction 13 states:

“The issue of entrapment has been raised by the defendant. Where a person has no previous intent or purpose to commit the crime or sale of dangerous drugs, but is induced or persuaded by law enforcement officers or their agents to commit this crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.
“On the other hand, where a person already has the readiness and willingness to engage in the sale of dangerous drugs, the mere fact that law enforcement officers or their agents provided what appears to be a favorable opportunity is not entrapment. When a law enforcement officer suspects that a person is engaged in the illegal sale of dangerous drugs, it is not entrapment for a law enforcement officer to pretend to be someone else and to offer, either directly or through an agent, to purchase dangerous drugs from the suspected person. The law, however, does not permit a law enforcement officer to originate or implant the criminal design of sale of dangerous drugs in a defendant’s mind.
“If, then the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit the crime of sale of dangerous drugs, then the jury should find that the defendant is not a victim of entrapment.
“On the other hand, if the evidence in the case should leave you with a reasonable doubt that the defendant had the previous intent or purpose to commit the offense of the sale of dangerous drugs except for inducement or persuasion of some law enforcement officer or his agent, then it is your duty to find him not guilty. The burden is on the State or [sic] prove beyond reasonable doubt that the defendant was not entrapped.”

Walker claims that Instruction 13 conflicts with Section 45-2-213, MCA, which states:

“A person is not guilty of an offense if his conduct is incited or induced by a public servant or his agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant or his agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated.”

Walker argues that Section 45-2-213, MCA, focuses on a defendant’s conduct which was “incited or induced by a public servant,” in contrast to Instruction 13, which focused on a defendant’s “readiness and willingness” to sell dangerous drugs. Walker, therefore, contends that Instruction 13 is an incorrect statement of the law and that it should have focused more forcefully on the police agent’s “inducement.”

We find that Instruction 13 fairly reflects the language of Section 45-5-213, MCA. In interpreting Section 45-2-213, MCA, we have set forth the following elements of entrapment:

(1) criminal intent or design originating in the mind of the police or their agent;

(2) absence of criminal intent or design originating in the mind of the accused; and

(3) luring or inducing the accused into committing a crime he had no intention of committing.

State v. Kamrud (1980), 188 Mont. 100, 105, 611 P.2d 188, 191.

Section 45-2-213, MCA, provides a defendant with a framework upon which to build an entrapment defense. However, Walker failed to show any specific instance of entrapment under any of the Kamrud elements. His defense consisted of general speculation on possible entrapment. Walker objects to the language of Instruction 13, which embodies the balanced defense principles of Section 45-2-213, MCA. After mediating several compromises in the original language, the District Court did not allow Walker to further distort the language of Instruction 13 to conform to his entrapment defense.

Walker also failed to offer a written alternative to Instruction 13, as required by Section 46-16-401(4)(a), MCA: “When the evidence is concluded, if either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered, signed by the party or his attorney, and delivered to the court.” We have held this statutory language to be mandatory. State v. Radi (1975), 168 Mont. 320, 325, 542 P.2d 1206, 1209-1210.

We hold that Instruction 13 is a correct statement of law. The police merely afforded Walker an opportunity to commit an offense. The criminal intent originated in Walker. We find that the instruction was proper, and Walker’s objection has no merit.

We affirm the District Court on all issues.

MR. JUSTICES HARRISON and GULBRANDSON concur.

MR. JUSTICES SHEEHY and HUNT,

concurring:

We concur in the result. We have doubt about the entrapment instruction.


author: MR. JUSTICE HUNT

text:
    FREDRIC CADWELL, Claimant and Appellant, v. BECHTEL POWER CORPORATION, Employer and INDUSTRIAL INDEMNITY COMPANY, Defendant and Respondent.
    No. 86-254.
    Submitted on Briefs Sept. 25, 1986.
    Decided Feb. 26, 1987.
    732 P.2d 1352.
    MR. JUSTICE GILBRANDSON filed dissenting opinion.
    Bottomly & Gabriel, R.V. Bottomly, Great Falls, for claimant and appellant.
    Marra, Wenz, Johnson & Hopkins, David E. Bauer, Great Falls, for defendant and respondent.
    Jeffrey T. Renz for ACLU, Billings, for amicus curiae.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Claimant Cadwell was awarded permanent partial disability benefits by the Montana Workers’ Compensation Court. We are asked to decide if attorney fees awarded to this successful Workers’ Compensation claimant whose injury occurred in 1981 should be based on standards in effect on the date of the injury or on the standards adopted in 1985 and set forth in Section 39-71-614, MCA.

We reverse the Workers’ Compensation Court’s decision to apply the later 1985 standards and remand with instructions to use the law in effect at the time of claimant’s injury.

On November 30, 1981, claimant injured his back while working as a carpenter erecting scaffolding at Colstrip, Montana. Claimant filed for compensation with the Workers’ Compensation Court and trial was held on September 24, 1984.

The court ordered proposed findings of fact and conclusions of law by November 30, 1984. Defendants moved and were granted an open-ended extension based on their desire to have a transcript of the proceedings prepared. Appellant objected to the extension being open-ended. The transcript was completed five months later and the parties’ findings of fact and conclusions of law were submitted May 10, 1985.

The Workers’ Compensation Court adjudged claimant’s injury to be compensable and awarded the claimant 500 weeks of permanent partial disability benefits at the rate of $120.50 per week.

Claimant and his attorney had entered into a contingency fee agreement to cover claimant’s attorney fees for the case. On April 19, 1985, H.B. 778 became effective as Section 39-71-614, MCA amending Sections 39-71-611; 612, MCA. The statute required attorney fees be paid to successful claimants based exclusively on an hourly rate. It required the hourly fee to be based on the attorney’s customary hourly fee for legal work performed in the State. Gullett v. Stanley Structures (1986), [222 Mont. 365,] 722 P.2d 619, 43 St.Rep. 1335.

The Workers’ Compensation Court found that Section 39-71-614, MCA (1985), applied to this case since the case was submitted to that court after April 19, 1985 and found that the claimant’s right to an award of attorney fees did not attach until the court ordered a fee award. It held that claimant’s attorney fees were to be determined by an hourly rate using the attorney’s customary and current hourly fee pursuant to Section 39-71-614(2), MCA.

Counsel’s affidavit indicates he did not have a set hourly rate because he worked on a contingency fee basis. The Workers’ Compensation Court requested counsel supply additional information as to the reasonableness of the requested $200 per hour attorney fee for this attorney. Claimant appeals the order finding Section 39-71-614, MCA, applicable to his case.

Although the amicus curiae brief thoroughly addresses the issue of how to determine reasonable attorney fees in Workers’ Compensation cases, this issue is not before this Court and therefore will not be addressed here. We limit our opinion to the issue of the attorney fee standards to be applied.

The effective date of Section 39-71-614, MCA (1985), was April 19, 1985. Claimant’s injury occurred on November 18, 1981. He contends that the law in effect on the date of the injury is the applicable law for this case and argues that use of the amended statute would be an impermissible retroactive application.

This Court has held that Workers’ Compensation benefits are determined by the statutes in effect as of the date of injury. Trusty v. Consolidated Freightways (Mont. 1984), [210 Mont. 148,] 681 P.2d 1085, 41 St.Rep. 973.

In Trusty, we held that: “The statute in effect on the date of the injury determines the benefits to be received . . . (Citations omitted.) That sets the contractual rights and debts of the parties.” Id. at 1088, 976. The basis for Worker’s Compensation is a contract of hire either express or implied. Sections 39-71-117, -118, MCA. This Court, as well as courts of other states, have held that Workers’ Compensation is based on contract theory. Buckman v. Montana Deaconess Hospital and State Compensation Insurance Fund (1986), [224 Mont. 238,] 730 P.2d 380, 43 St.Rep. 2216. The Buck-man Court approved the holding of the Kansas Supreme Court in Estate of Baker (1977), 222 Kan. 127, 563 P.2d 431 which reads as follows:

“The liability of an employer to an injured or deceased employee arises out of the contract between them; the terms of the workmens’ compensation statute are embodied in the contract. The substantive rights between the parties are determined by the law in effect on the date of the injury. (Citation omitted.) However, the rights under the contract vest when the cause of action accrues, and the cause of action accrues on the date of injury or death. (Citations omitted.)” Id. at 436.

In the instant case, claimant’s cause of action accrued on November 18, 1981. His substantive contract rights vested at this time.

Further, a statute should not be applied retroactively unless the legislature clearly expressed an intention to so apply it. First National Bank in Billings v. First Bank Stock Corporation (D.C. Mont. 1961), 197 F.Supp. 417; Yurkovich v. Industrial Accident Board (1957), 132 Mont. 77, 314 P.2d 866. Here there is no indication that the legislature intended the amendments to apply retroactively and we will not make those amendments retroactive.

Section 39-71-614, MCA, does not apply to cases where the injury occurred prior to April 19, 1985. Rather, the law in effect on November 18, 1981, the date of claimant’s injury is the applicable law.

This Court interpreted the 1983 attorney’s fee statutes which are the same as the 1981 statutes applicable to this case in Wight v. Hughes Livestock Company et al (Mont. 1983), [204 Mont. 98,] 664 P.2d 303, 40 St.Rep. 696.

The net award concept, as articulated by this Court in Wight, allowed a claimant to recover the full value of lost earnings or earning capacity benefits. It did this by awarding the claimant attorney fees in an amount sufficient to cover the actual attorney fees whether the attorney-client agreement was based on a contingent fee or hourly fee. In most cases, this meant an award of attorney fees based on a contingency fee.

These were substantive provisions which granted substantive rights from the date of the injury.

The 1985 amendments were meant to change this arrangement. Section 39-71-614, MCA, (1985) recognized the necessity of contingency fee contracts and allowed a claimant and her attorney to enter into such contracts. However, the statute was changed so the insurer is now exempted from paying fees based on this contract. The claimant must now pay any difference between an agreed upon contingency fee and the hourly rate ordered by the court. This is a substantive change from the law in effect at the time this claimant was injured.

Because the applicable law here is the law in effect on the date of claimant’s injury, the date his contract rights vested, the Wight interpretation applies to this case and the 1985 amendments do not apply.

We therefore reverse and remand this case with instructions to determine attorney fees in accordance with this Opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, SHEEHY and WEBER concur.

MR. JUSTICE GULBRANDSON, dissenting:

I respectfully dissent.

The Workers’ Compensation Court Judge in his order awarding attorney fees relied upon Castles v. State ex rel. Mont. Dept. of Highways (1980), 187 Mont. 356, 609 P.2d 1223, and stated:

“An analogous situation is presented by the dispute over the recently enacted attorney fee amendments which are at issue in the instant case. Under a Castles analysis, those amendments are procedural in nature since claimants are still entitled to an award of attorney fees, but the means of calculating the attorney fee has been legislatively modified. Since claimants are still entitled to an award of attorney fees, the substantive right was not impacted by the House Bill 778 amendments. Instead, those amendments only affect the method of calculating the attorney fee to be awarded, and are therefore, procedural in nature.
“While it is apparent that the claimant’s right to an award of attorney fees does not, in fact, attach until this Court orders an award of attorney fees, this Court finds it appropriate to look beyond the date a case is decided, and instead focus on its date of submission. This legal fiction serves the interests of justice for if this Court were to apply the law in effect at the time a case is decided, instead of the law in effect at the time the case was submitted, a claimant could conceivably be penalized by a backlog on this Court’s calendar. Such a result would be patently unfair, and that is the reason that this Court will look to the date of submission.”

This Court in Yearout v. Rainbow Painting (Mont. 1986), [222 Mont. 65,] 719 P.2d 1258, 43 St.Rep. 1063, reaffirmed the rule that no attorney’s fees may be awarded until the claim is adjudged compensable by the Workers’ Compensation Court Judge. Based upon that reasoning, the Workers’ Compensation Judge properly, in my opinion, applied the law in effect at the date of submission of the case. By so doing, the Judge avoided penalizing a claimant due to a backlog on the court’s calendar.

The majority seem to justify the classification of the amendments as substantive, rather than procedural, by the statement that claimants must now pay any difference between an agreed contingency fee and the hourly fee determined by the court. As a practical matter, few, if any, attorneys would attempt to collect any such difference, if they intend to continue a workers’ compensation practice. In fact, the amendments provide that an attorney, with a contingent fee agreement, may be awarded a larger sum in fees computed under the hourly fee requirement than he would have received under the contingent fee agreement. See Paulsen v. Bonanza Steak House (Mont. 1987), [225 Mont. 191,] 733 P.2d 335, 44 St.Rep. 159, where counsel for claimant was awarded an hourly fee approximately three times greater than he would have earned under his contingent fee contract.

I would affirm the order of the Workers’ Compensation Court Judge.


text:
    In the Matter of the ESTATE OF LOTTIE H. LONG, Deceased.
    No. 86-408.
    Submitted on Briefs Dec. 4, 1986.
    Decided Feb. 26, 1987.
    732 P.2d 1347.

      Sherwood & Englund, Karl J. Englund, Rossbach & Whiston, William A. Rossbach, Missoula, for appellant.
    Snavely & Phillips, Donald V. Snavely, Missoula, Larry Persson, Hamilton, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District Court, Ravalli County, by appellant Shriners’ Hospital for Crippled Children from a denial of their petition for appointment as Special Administrator for the Estate of Lottie H. Long.

We affirm.

The issue presented on appeal is whether the District Court erred in denying appellant’s petition to be appointed special administrator of the Estate of Lottie H. Long.

In March 28, 1984, appellant and Marcia Peters, the testatrix’s granddaughter, filed a complaint in District Court against respondents Emil and Lenora Skroch alleging that the Skrochs unduly influenced the testatrix to sign a document which created a joint tenancy with rights of survivorship between the testatrix and the Skrochs in certain bank accounts owned by the testatrix totaling $190,000.

Appellant was named as the residual beneficiary in the testatrix’s will. In their complaint, appellant and Peters alleged the Skrochs abused their confidential relationship by unduly influencing the testatrix into signing the joint tenancy documents.

Respondents Emil and Lenora Skroch were long time friends of the testatrix. Emil had been a friend and confidant for almost 40 years. When he first moved to Montana, Emil worked on the Long ranch for approximately 9 years.

The previous 15 years before the testatrix’s death, Emil assisted the Long’s in the financial management of their affairs and advised them on their investments. When the testatrix’s husband died, Emil became more involved in the testatrix’s financial affairs and was consulted regarding investments in stocks, bonds and mutual funds. He also assisted by driving her on errands, writing checks for her, as well as other daily business.

In June, 1983, she appointed Emil her attorney-in-fact granting him authority to handle all transactions involving her bank accounts together with her real and personal property. In August, 1983, he witnessed her Last Will and Testament. Around Christmas, 1983, she asked Emil Skroch to transfer the certificates of deposit at issue here, from her name alone to her and Emil and Lenora Skroch in joint tenancy. Sometime in January, 1984, the documents were prepared and signed. The document was signed by the testatrix in the nursing home where she had lived for sometime. Nursing home employee Joanne Griffith signed as a witness.

As of the date she created the joint estate with Mr. and Mrs. Skroch, the testatrix’s estate exceeded $726,000. In her will, she noted that she had made provisions for her two granddaughters and her great-granddaughter outside of her will and for that reason she made only a small bequest to each of them in her will. She further noted that she had also provided for certain of her friends outside of her will for some type of savings account, or certificate of deposit in my name, and that of the other individual in joint tenancy with the right of survivorship. She named appellant the residual beneficiary.

Successive suits were filed by the appellant. At the time the first action was filed by appellant and Ms. Peters the testatrix was still alive. Various depositions, motions and discovery were instituted. On July 26,1985 Marcia Peters decided after a written request from her grandmother, dated seven months after the controversial transfer, to stipulate to the dismissal of her claim with prejudice. Summary judgment was granted on the Skroch’s motion to dismiss. The lower court found that appellant, as expectant heir, lacked standing to maintain an action to revoke a lifetime transfer. It held that since a conservator had been appointed for the protection of the testatrix’s estate, the conservator was the proper party to bring any action for undue influence unless allegations of deception could be made between the conservator and the Skrochs. The action was dismissed without prejudice.

Appellant amended the complaint to allege deception between the Skrochs and the conservator, Larry Persson. The Skrochs answered the complaint. Prior to the status conference the testatrix died. In her will, the testatrix had appointed Eileen Wakeham Richardson and A. Don Evans as personal representatives. At the status conference on the amended complaint, the District Court found that appellant’s remedy as heir was first to request the personal representatives to bring the claim and, if they refused to act, appellant could petition the Probate Court for their removal as personal representatives.

On November 27, 1985, the testatrix’s will was admitted to formal probate. Appellant sent its discovery results to the attorney for the personal representatives, Larry Persson, to inform him of the controversy. The personal representatives reviewed the depositions and exhibits and concluded that the claim was not an asset of the estate of Lottie H. Long and informed appellant that there was no basis for pursuing the claim.

Appellant then filed a petition for appointment as special administrator of testatrix’s estate pursuant to Section 72-3-701, et seq., MCA. The District Court considered that petition and concluded that the decision of the co-personal representatives not to litigate this claim did not constitute a breach of their obligation under Montana Probate Code and therefore appointment of a special administrator was not necessary.

Appellant appeals the denial of the petition for appointment and the denial of its’ Motion to Reconsider. It contends that the testatrix was not competent the day she signed the transfer document and that she acted under undue influence. It argues the existence of this information supports an action for undue influence against the Skrochs who sought to persuade the testatrix to sign away property that the personal representatives should have sought to include in the assets of the estate. Appellant alleges the co-personal representatives had a duty to marshal all assets including any claims against the estate and when they did not do so, they breached this fiduciary duty.

Appellant also contends that a special administrator should be appointed whenever the appointment is necessary to preserve the estate or to secure proper administration. It contends this includes but does not limit appointment to circumstances in which there is necessarily a conflict of interest.

Appellant further argues that since the personal representatives have refused to prosecute a claim against Emil and Lenora Skroch they therefore are not securing the proper administration of the Estate of Lottie Long. It claims the first step in such proper administration is taking possession and control of the estate assets under Section 72-3-606, MCA, and this may involve litigation by the personal representatives. A right to bring an action is property of the estate under Section 72-1-103(34), MCA, and it alleges that any claim against the Skrochs for undue influence is property of the estate.

In addition, appellant claims the personal representatives wrongly abandoned this claim and by so doing violated their responsibilities as personal representatives. Personal representatives may only abandon property with the consent of heirs, devisees or the court and allegedly no such permission was requested or given here.

Finally appellant argues it is the proper party to be appointed special administrator and it is qualified as an “interested person” under Section 72-1-103(21), MCA, because it is the residual heir of the Long estate.

Respondents, on the other hand, claim the District Court correctly denied the request for appointment as special administrator in both the conservatorship and probate proceedings. They argue the District Court correctly found in the conservatorship proceeding that appellant, as an heir, does not have standing to bring suit on behalf of an incapacitated person where the duly appointed conservator of that person’s estate has determined that the subject claim is without merit. In the probate proceeding of the testatrix’s estate the co-personal representative’s decision not to pursue the meritless claim is alleged to be final and conclusive in the absence a conflict of interest, collusion or other legal impediment to their making an unbiased decision. Thus they claim no appointment of a special administrator was necessary.

Respondents contend that this appeal places before this Court the scope of the discretion left to personal representatives in administering an estate when litigation against third parties is contemplated.

The Skrochs maintain there is no evidence that the personal representatives were impeded by conflict of interest, colluded with the Skrochs, or acted under any legal impediment when they decided not to pursue the claim. They contend appellant has no right to second guess the personal representatives when they are deciding whether to pursue a lawsuit on behalf of the estate. A mere difference of opinion between an heir and the personal representatives as to the validity of the claim, they argue, is not grounds for appointment of this residual heir as special administrator.

They note that the co-personal representatives knew Lottie Long well for many years. Both of the representatives saw her frequently. Eileen Richardson evidently visited Lottie Long almost on a daily basis up to her death and Don Evans, the other co-personal representative, consulted frequently with her on financial matters for many years up to the time of her death. The Skrochs claim the co-personal representatives knew the testatrix’s desires and for that reason refused to pursue a claim of undue influence. They also note that the testatrix’s physical condition improved in the spring of 1984 and seven months after the controversial transfer documents were executed she wrote a letter urging her granddaughter, Marcia Peters, to drop the lawsuit challenging the transfer. Marcia did so with prejudice. The Skrochs contend this indicates that the testatrix herself confirmed her intention to put the Skrochs names as joint tenants onto the subject bank accounts.

The respondents argue a finding of good cause is necessary under Section 72-3-701, MCA, before a special administrator may be appointed and an heir has no standing to sue, absent demonstration of collusion, conflict of interest or other legal impediment to unbiased action by the personal representative.

The decision of when a special administrator should be appointed is addressed in Section 72-3-701, MCA, as follows:

“A special administrator may be appointed: (1) informally by the clerk on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in 72-3-522;

“(2) in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration, including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.”

Because the Long estate is being formally probated, subsection (2) applies and a special administrator may be appointed only if that is necessary to preserve the estate or secure its proper administration. We have held that a personal representative’s conflict of interest can be such a “circumstance,” although appointment is not simply limited to a conflict of interest of a personal representative. In the Mat ter of the Estate of Sauter (Mont. 1980), 189 Mont. 244, 615 P.2d 875, 37 St.Rep. 1425.

Shortly after Sauter we decided State ex rel. Palmer v. District Court (Mont. 1980), 619 P.2d 1201, 37 St.Rep. 1876 and ruled that an expectant heir had no right to intervene in an action maintained by the special administrator who was the sole person authorized to pursue that claim. This Court reasoned that allowing such intervention would work chaos upon estate proceedings. If the personal representative did not have discretion to determine when or when not to pursue litigation involving alleged estate assets, then an heir could effectively tie up probate proceedings indefinitely to the prejudice of all other heirs, creditors and persons interested in the estate. The heir need simply state a claim as a prima facie case and then request the personal representative pursue the claim. As noted by this Court in Palmer, such a result would defeat the entire purpose of representative litigation and would likely result in the affairs of the estate becoming hopelessly entangled. Palmer, 619 P.2d 1201, 1203-04, 37 St.Rep. 1876, 1879.

A case relied upon by this Court in its ruling in Palmer demonstrates that the law does not countenance such a result. Holland v. Kelly (1917), 177 Cal. 507, 171 P. 421 is similar to the one at hand. There the surviving husband of the deceased sued one McCarthy to recover a fund deposited by the deceased in a bank account in joint tenancy with McCarthy. The surviving husband claimed that McCarthy had caused the deceased to deposit money into the joint tenancy bank account by the use of fraud and undue influence and by plying the deceased with liquor. McCarthy moved to dismiss the complaint, alleging that the deceased’s husband, as an heir of the deceased, did not have standing to bring the claim because the deceased’s personal representative was available to pursue the claim. Nothing in the record indicated that in fact the personal representative had pursued the claim, and from all that appeared he had made a decision not to continue pursuit of it. The trial court dismissed the complaint. The California Supreme Court affirmed and ruled, consistent with a unanimous line of authorities from other jurisdictions, that in the absence of special equitable circumstances an heir has no standing to bring suit to collect property allegedly belonging to the deceased’s estate or to bring any action which affects the estate. Holland, 171 P. at 423. Absent such special equitable circumstances, the power to maintain an action to recover property of the estate rests with the personal representatives.

Here there is no apparent conflict of interest. The record does not indicate that the personal representatives were related, connected in any significant way or colluding with the Skrochs. The co-personal representatives assessed the fruits of discovery after appellant requested they evaluate the potential claim of undue influence. They then sent the following letter to appellant:

“. . . We do agree, however, with you that the key question here involved was whether Lottie H. Long was competent at the time she signed the documents which resulted in creating the joint tenancy accounts. Both of the Co-Personal Representatives were long associated with Lottie Long. Eileen Richardson was a close and personal friend of Lottie Long, who probably visited with her and talked to her on the phone more often than any other person, with the possible exception of Emil Skroch. Co-Personal Representative Don Evans for many years was a financial advisor and friend to Lottie and Walter Long. Don Evans had a chance to meet with Lottie Long on many occasions to talk about their investments and to make new investments and to make changes in existing investments. This association continued during the time that she was in the rest home and up until her death.
“Based upon the evidence that is before us and based upon the personal knowledge of both the Co-personal Representatives, it is our opinion that the claim of your client is not an asset of the estate of Lottie H. Long, deceased. The Co-Personal Representatives do not feel that there is a basis for pursuing any legal action against Emil J. Skroch and/or Lenora Skroch to set aside the joint tenancy transfers referred to in the letter signed by Lottie H. Long and directed to the Ravalli County Bank, First Federal Savings & Loan Assn., Citizens State Bank and Western Federal Savings & Loan Assn. ...”

Appellant argues that this refusal by the co-personal representatives to prosecute this claim in and of itself represents a violation of their fiduciary responsibility to the Long estate to preserve the assets and secure proper administration of it. We cannot agree.

The personal representatives do have the responsibility to marshal the assets and properly administer the estate. Lottie Long had known the co-personal representatives for years and she trusted them to administer her estate after her death. They reviewed the information made available by the appellant. Simply because appellant did not agree with the co-personal representatives on what to do about a potential claim does not mean, as the lower court correctly concluded, that they improperly administered the estate such that they should be removed and a special administrator appointed.

Absent a showing of fraud, collusion, conflict of interest, inability to act or other special equitable circumstances the petition for appointment as special administrator by an heir need not be granted and the power to maintain such an action to recover property of the estate rests with the duly appointed co-personal representatives of the Estate of Lottie Long.

The decision of the lower court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and MORRISON concur.