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

text:
    WAYNE E. MAHAN, Plaintiff and Appellant, v. FARMERS UNION CENTRAL EXCHANGE, INC., doing business as Cenex, foreign corporation, Defendant and Respondent.
    No. 87-05.
    Submitted Oct. 27, 1988.
    Decided Jan. 24, 1989.
    Rehearing Denied March 13, 1989.
    768 P.2d 850.

      Whalen & Whalen, Timothy J. Whalen argued, Boschert & Boschert, Rosemary C. Boschert, Billings, for plaintiff and appellant.
    Veeder, Broeder & Michelotti, David A. Veeder argued, and Robert J. Waller argued, Billings, for defendant and respondent.
    James Zion, Montana Human Rights, Helena, for amicus curiae.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Wayne E. Mahan appeals from a judgment based on a jury verdict denying him damages against the Farmers Union Central Exchange, Inc. (Cenex), in an action brought by Mahan in the District Court, Thirteenth Judicial District, Yellowstone County. We reverse and remand for a new trial.

On February 16,1983, Wayne E. Mahan was the head development engineer at the Laurel Refinery operated by Cenex. His employment was terminated on that date, effective March 1, 1983. Mahan was sixty years old at the time, and had worked for more than 30 years for Cenex.

The jury verdict decided against Mahan on two issues, finding: (1) that Cenex was not guilty of age discrimination in terminating Wayne Mahan’s employment, and (2) that Cenex had not breached an implied covenant of good faith and fair dealing in terminating Mahan’s employment.

We will state other facts as they become pertinent.

SHOULD MAHAN’S CHALLENGES TO JURORS FOR CAUSE HAVE BEEN GRANTED?

Mahan urges as a principal issue on appeal that the District Court erred in failing to grant challenges for cause made by Mahan against jurors McCann and Anderson in the voir dire selection of the jury.

With respect to juror McCann, the following colloquy occurred:

“MR. MICHAEL J. WHALEN: Thank you.

“Mr. McCann, you I believe have sat on a case that I tried during March of this year; isn’t that correct?

“MR. McCANN: That’s correct.

“MR. MICHAEL J. WHALEN: First, my memory is that on the special verdict that was returned in that case, that you answered differently than the remainder of the jurors on the issue of punitive damages. I’ll ask you whether or not there is something about punitive damages that is offensive to you in nature?

“MR. McCANN: Yes, there is.

“MR. MICHAEL J. WHALEN: Is it your position that you would not award punitive damages in any case, no matter what instructions the Court might give you?

“MR. McCANN: Yes, that’s correct.

“MR. MICHAEL J. WHALEN: Your Honor, I respectfully challenge this juror for cause.

“THE COURT: Mr. Veeder, do you wish to inquire of the juror?

“MR. VEEDER: Just briefly, your Honor. Mr. McCann, if you were given a jury instruction by the Court that indicated to you that punitive damages were a proper award or could be found to be a proper award by the jury in this case, and after hearing all of the evidence set forth during the trial and knowing what that instruction was, do you believe you could not award punitive damages?

“MR. McCANN: I don’t think I would.

“THE COURT: Mr. McCann, the Court will make an inquiry. It isn’t a question of one asking whether you will or wouldn’t, depending on because you haven’t heard the evidence; we all recognize that. The question is if the Court were to instruct you that punitive damages were recoverable, if you found certain facts to be true, and if you found those facts, would you then follow the Court’s instructions?

“MR. McCANN: Yes, I would.

“THE COURT: All right. The challenge is denied.

“MR. MICHAEL J. WHALEN: Do you know of any other reason, Mr. McCann, why you couldn’t be fair and impartial if you’re selected in this case with the information you have at this point as to the nature of the case?

“MR. McCANN: No, I don’t.”

In the voir dire questioning of juror Anderson, the following discussion took place.

“MR. MICHAEL J. WHALEN: Mr. Anderson, have you sat on any of the juries since you’ve been on this panel?

“MR. ANDERSON: (No oral response.)

“MR. MICHAEL J. WHALEN: I believe you’ve been on the panel since last July. Have you sat on any juries during the last year?

“MR. ANDERSON: No.

“MR. MICHAEL J. WHALEN: Your answer is no?

“MR. ANDERSON: No. The answer is yes.

“MR. MICHAEL J. WHALEN: Are you still working as an insurance broker at the present time?

“MR. ANDERSON: I’m retired.

“MR. MICHAEL J. WHALEN: You’re retired?

“MR. ANDERSON: I do have some —

“MR. MICHAEL J. WHALEN: I can’t hear you.

“MR. ANDERSON: I said I’ve been retired.

“MR. MICHAEL J. WHALEN: During the years that you were working as an insurance broker, did you do any business with the Cenex refinery in Laurel or St. Paul, Minnesota?

“MR. ANDERSON: No.

“MR. MICHAEL J. WHALEN: Have you had any direct business relationships with Cenex?

“MR. ANDERSON: No, sir.

“MR. MICHAEL J. WHALEN: You have worked in the insurance industry for a number of years, as I understand. If the Court should instruct you on the subject of punitive damages in this case, would you be willing to consider the law on that subject and award punitive damages if you felt that the facts justified it?

“MR. ANDERSON: I was in Helton Life Insurance.

“MR. MICHAEL J. WHALEN: But is there anything — Strike that.

“Punitive damages can be allowed by a jury for the sake of example, if the Court tells you it’s a matter that you can consider. If the Court should tell you that it is a matter that you can consider in this case, would you be willing to consider it fairly and openly?

“MR. ANDERSON: Yes, sir.

“MR. MICHAEL J. WHALEN: You’d be able to follow the law as given to you by the Court?

“MR. ANDERSON: Yes, sir.

“MR. MICHAEL WHALEN: Do you know of any reason why you couldn’t be fair and impartial if you are selected as a trial juror in this cause?

“MR. ANDERSON: Would you state that again, sir?

“MR. MICHAEL J. WHALEN: Do you have difficulty hearing?

“MR. ANDERSON: Somewhat, yes. And I have a little speech —

“MR. MICHAEL J. WHALEN: Excuse me?

“MR. ANDERSON: (No oral response.)

“MR. MICHAEL J. WHALEN: Do you have difficulty hearing me?

“MR. ANDERSON: No, not now.

“MR. MICHAEL J. WHALEN: Do you feel you would have difficulty hearing the evidence in this case?

“MR. ANDERSON: I could hear the evidence.

“MR. MICHAEL J. WHALEN: Well, do you think you could hear it all as we’re going along?

“MR. ANDERSON: Yes, I do.

“MR. MICHAEL J. WHALEN: Do you know of any reason why you couldn’t be fair and impartial if you are selected as a juror in this case?

“MR. ANDERSON: No reason.

“MR. MICHAEL J. WHALEN: Do you use a hearing aid at all?

“MR. ANDERSON: Not at all.

“MR. MICHAEL J. WHALEN: When you were in the insurance business, did you manage or oversee other employees?

“MR. ANDERSON: That’s right, I do — I have.

“MR. MICHAEL J. WHALEN: How many employees did you have?

“MR. ANDERSON: It would vary for the insurance agents.

“MR. MICHAEL J. WHALEN: What would be, generally, the number that you would have?

“MR. ANDERSON: Well, usually it would be about 25.

“MR. MICHAEL J. WHALEN: Having been in business yourself and managed 25 people on some occasions, do you feel that you would be inclined to favor management as distinguished from the plaintiff, an employee in this case?

“MR. ANDERSON: Could you —

“MR. MICHAEL J. WHALEN : Do you feel that you would be inclined to favor management in this case because of —

“MR. ANDERSON: Oh, yes.

“MR. MICHAEL J. WHALEN: — because of your history?

“MR. ANDERSON: Yes.

“MR. MICHAEL J. WHALEN: You would favor management. That would be over the plaintiff, who is an employee?

“MR. ANDERSON: (No oral response.)

“MR. MICHAEL J. WHALEN: Whatever the evidence is, as I understand your answer, you would favor management; is that correct?

“MR. ANDERSON: I would favor management because I was hiring and — agents, and it wouldn’t be 25 that would seek — and sometimes it — they’d quite [sic] — you know — and go to — they’d quit, you know, and go to other —

“MR. MICHAEL J. WHALEN: When you tell me that, you would favor management in this case, is that a fixed and abiding feeling that you have that you should do?

“MR. ANDERSON: I prefer the management part, yes.

“MR. MICHAEL J. WHALEN: You would favor management in this case?

“MR. ANDERSON: Yes.

“MR. MICHAEL J. WHALEN: Your Honor, I respectfully challenge the juror for cause.

“THE COURT: Mr. Veeder?

“MR. VEEDER: Could you tell me what you mean when you say favor management?

“MR. ANDERSON: I prefer to — instead of being strictly agent, I like to manage, and I would recruit, too, and —

“MR. VEEDER: That was your job before?

“MR. ANDERSON: Yes, sir.

“MR. VEEDER: But —

“MR. ANDERSON: I was in the business 27 years, and I retired the end of ‘79.

“MR. VEEDER: Okay. But the question, sir, is whether you could hear the evidence in this case and wait until you fully heard the evidence before making up your mind, and when you did so, could you reach a verdict in a fair and impartial basis, being fair to both the plaintiff and to the defendant in this case?

“MR. ANDERSON: Yes, sir.

“MR. VEEDER: Could you do that?

“MR. ANDERSON: Yes, sir.

“MR. VEEDER: So any favoritism that you might feel for or towards management you could set aside and hear the evidence fairly?

“MR. ANDERSON: Yes, sir.

“MR. VEEDER: We have no further questions.

“THE COURT: Mr. Anderson, when you said you favored management, did you mean that while you were working, you preferred to be in management rather than out selling?

“MR. ANDERSON: That’s right.

“THE COURT: All right. The challenge is denied.

“MR. MICHAEL J. WHALEN: I renew the challenge, your Honor, for the reason that it is apparent from what has taken place that the prospective juror will not be adequately able to follow the proceedings in this case. He has repeated on more than one occasion that he would favor management in making a decision in the case.

“THE COURT: The challenge is denied.

“MR. MICHAEL J. WHALEN: Do you know of any other reasons that might make it difficult for you to be fair and impartial in this case, Mr. Anderson?

“MR. ANDERSON: Would you repeat that, please?

“MR. MICHAEL J. WHALEN: Do you know of any other reason why it would be difficult for you to be fair and impartial in this case?

“MR. ANDERSON: Not at all. I wouldn’t be partial.

“MR. MICHAEL J. WHALEN: Sitting where you are at the present time, are you inclined to decide this case in favor of the defendant at this point?

“MR. VEEDER: I object, your Honor.

“THE COURT: Sustained.”

When a prospective juror has an unqualified opinion or belief as to the merits of the action, that juror is subject to a challenge for cause. Section 25-7-223, MCA. Generally, the determination as to whether a prospective juror is qualified or unqualified is left to the sound discretion of the trial court. This, because the trial court has the advantage of observing the witness and accordingly the court’s decision to allow a juror to sit should not be set aside unless the error is manifest, or there is shown a clear abuse of discretion. State v. Williams (1979), 185 Mont. 140, 150, 604 P.2d 1224, 1229; State v. Russell (1925), 73 Mont. 240, 249-250, 235 P. 712, 715.

In this case plaintiffs counsel was forced to use two of his peremptory challenges to excuse prospective jurors McCann and Anderson from the case. He utilized all of his peremptory challenges, and points out in brief that there were other selected jurors against whom he would have used such challenges.

In Abernathy v. Eline Oil Fields Services, Inc. (1982), 200 Mont. 205, 650 P.2d 772, we had a case where the District Court intervened during voir dire examination of a juror to rehabilitate the qualifications of the juror. In Abernathy, the trial court’s discussion with the prospective juror was more extended. Generally we apply the rule that the trial court is in a better position to judge the prejudice of jurors, and that its decision will not be set aside unless the error is manifest or there is a clear abuse of discretion, Anderson v. Burlington Northern Inc. (Mont. 1985), 709 P.2d 641, 42 St.Rep. 1738, even where there has been a forced use of a peremptory challenge. Aber nathy, supra. In this case, however, the error is manifest. McCann obviously had a fixed scruple against punitive damages and had followed his scruple in a previous jury trial. Anderson not only stated he preferred the management side but appeared to have difficulty in speaking and hearing.

The District Court, of course, may supplement the voir dire examination by his further inquiry, as permitted by Rule 47(a), M.R.Civ.P. However, in each case here the inquiry by the District Court was of a general nature, and not pointedly directed to the manifest “existence of a state of mind in the juror evincing enmity against or bias in favor of either party.” Section 25-7-223(7), MCA. Mahan’s counsel was thus forced to waste peremptory challenges he might have used elsewhere on the panel.

In Montana the right to a jury trial is secure to all and remains inviolate. Art. II, Section 26, 1972 Mont. Const. Concomitant with that right is the right to a fair and impartial jury.

Because we reverse and remand for a new trial, there are other matters raised in the briefs in this appeal which may be subject to controversy in any retrial. Accordingly, we will examine those issues for that purpose, pursuant to § 3-2-204(3), MCA.

DID THE COURT COMMIT ERROR IN LIMITING THE TESTIMONY OF PLAINTIFF’S STATISTICIAN WITH REGARD TO AGE DISCRIMINATION?

In Montana, an employee has the right to obtain and hold employment without discrimination as to age. Section 49-1-102(1), MCA. Courts have recognized that statistics are commonly used in discrimination cases. As the United States Supreme Court has observed:

“. . . Our cases make it unmistakably clear that ‘[statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue.” Teamsters v. United States (1977), 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396, 417.

In this case the court limited the plaintiff’s statistical expert to testimony of statistical tests performed on the Laurel nonunion employees. The District Court refused to allow the expert to testify to results from a statistical analysis of company-wide terminations of employment including union members.

Obviously, the inclusion of union employees in the statistical population, whose employment contracts contained seniority rights, would skew the figures affecting older terminated nonunion employees as to the probability that older nonunion employees were discriminated against on the basis of age. The court was correct in so limiting the testimony.

The result of the limitation was that the entire population of terminated employees considered by defendant’s statistical expert was forty-nine persons. On cross-examination of defendant’s statistical expert, the plaintiff’s counsel used an elementary statistics textbook which indicated such a number was insufficient for a chi-squared test. The plaintiff is not now barred from reinforcing the textbook with live testimony on retrial relating to the statistical effect of low-numbered samples.

DID THE COURT COMMIT ERROR IN LIMITING AND EXCLUDING TESTIMONY OF PLAINTIFF’S LABOR RELATIONS EXPERT?

The District Court denied plaintiff’s offer of proof through the witness Allan D. Brown that the policies of the defendant were deficient in good personnel practices; that the defendant failed to act in good faith, based upon the information made available to Brown from the case; that the policies of the defendant in connection with the termination of personnel in a reduction of force proceedings were not adequate; that the manner of which Mahan was terminated was not conducted fairly through a good personnel policy; and that the actual termination of the plaintiff was unfair under all the circumstances of the case.

In denying the offer of proof, the District Court indicated that it would limit the testimony of the expert to the personnel manual then in existence, and that it would not permit the witness to testify as to his opinion that the company may have breached the implied covenant of good faith and fair dealing. The District Court indicated that it was basing its decision upon the cases of Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487, and Flanigan v. Prudential Federal Savings & Loan (Mont. 1986), [221 Mont. 419,] 720 P.2d 257, 43 St.Rep. 941.

In Crenshaw, relying on Rule 702, M.R.Evid., that the testimony of an expert is admissible if it will “assist the trier of fact to understand the evidence or to determine a fact in issue,” this Court said:

“The trier of fact’s experience does not extend to Hospital disciplinary guidelines, much less the ability to evaluate the propriety of such guidelines. We find Dr. Vinton’s perspective assisted the jury to understand the evidence and ultimately the breach of implied covenant of good faith and fair dealing question at issue. Further, the Hospital’s counsel moved in limine to exclude Dr. Vinton’s testimony. The argument was presented to the trial judge. The trial court in its broad discretion admitted the expert testimony. The trial court’s order will not be disturbed on appeal in the absence of a clear showing of a manifest abuse of discretion. [Citing cases.]” Crenshaw, 213 Mont. at 405, 693 P.2d at 495.

In Crenshaw, this Court also noted:

“The instant case is not a scenario of simple facts. Fault arising from breach of implied covenant of good faith and fair dealing is not easily comprehensible to the average person. Dr. Vinton’s testimony was based on professional expertise and experience which the individual jury members were unlikely to possess. Her testimony assisted the trier of fact by providing the jury with information and a prospective [sic] beyond the common experience of a lay juror. [Citing authority.]”

Crenshaw, 213 Mont. at 502, 693 P.2d at 494.

In Flanigan, this Court approved the foregoing statements from Crenshaw, and went on to state that the District Court in Flanigan had acted properly in allowing expert testimony interpreting written employment policies of the employer.

It appears that the order of the District Court during trial correctly interpreted our holdings in both Crenshaw and Flanigan. In the case at bar, the court did permit experts for both parties to testify as to whether the company complied with or violated its own policies. That ruling, of course, followed Crenshaw and Flanigan.

As to whether the District Court erred in disallowing opinion testimony from the expert about the covenant of good faith and fair dealing, we are unable to say. The offer of proof did not include the specifics on which the proper testimony of the expert witness would be based. We only restate that under Flanigan, based on Crenshaw, opinion testimony from expert witnesses considering the covenant of good faith and fair dealing is admissible, provided that foundation testimony is in the record, and the conditions of Rule 702, M.R.Evid., that the specialized knowledge of the expert will assist the trier of fact to understand the evidence or to determine the fact of issue are met. Though not explicitly stated in the record, it appears that part of the reason for the District Court’s refusal of the offer of proof in this case was based upon the expert’s background and experience, since he had made no study of nationwide policies and practices relating to terminations in reductions in force.

DID THE DISTRICT COURT ERR IN ALLOWING DEFENDANT’S STATISTICIAN TO TESTIFY AS TO WHAT WAS SIGNIFICANT STATISTICALLY IN SHOWING AGE DISCRIMINATION, RATHER THAN LIMITING HIS TESTIMONY TO EXPLAINING WHAT THE TESTS SHOWED IN THE SAME MANNER THAT PLAINTIFF’S STATISTICIAN WAS LIMITED?

Defendant’s statistician, Ira Chorusa, testified as to three statistical tests that he applied to finish exhibit 13A, an exhibit through which plaintiffs expert had earlier testified which showed age discrimination. In response to a question from defendant’s counsel as to whether he had found any statistical significance in the outcome of his tests, he responded:

“A. Well, there is no statistical significance as an outcome of any of these tests.

“Q. What does that mean?

“A. What that means is that there is no evidence, based on these tests, that age was used as a factor.”

The defendant’s counsel objected on the grounds that the testimony went beyond what he was allowed when his expert was testifying. In chambers, the District Court examined the previous testimony of plaintiffs expert:

“THE COURT: I have before me the series of questions that you posed to your expert that you had and the answers which you had typed in advance, Mr. Whalen, and the last question was, ‘What does that mean?’ The answer which is typed, and as I recall, the answer was very close to this, if not almost verbatim, ‘It means that this result would occur by chance only 13% of the time, or conversely, the results are consistent with the pattern of discrimination as to age in terminating employees 87% of the time.’ ”

The District Court made it clear in the discussion in chambers that it would not permit either expert witness to testify that there was or was not actual age discrimination in this case. It appears that the answer of the defendant’s expert came very close to stating that there was no evidence of age discrimination, although he may have been referring merely to plaintiffs exhibit 13A. In any event, we affirm the position of the District Court that on retrial the statisticians may testify that their statistical tests show or do not show patterns of discrimination based on age, but may not testify to the ultimate conclusion that age discrimination in his termination was or was not exercised against Wayne Mahan in this case. The jury should be the final arbiter of that issue. Rule 704, M.R.Evid.

SHOULD THE COURT HAVE INSTRUCTED THE JURY ON THE ISSUE OF RETALIATION?

It is an unlawful discriminatory practice for any employer to discriminate against an individual because he has filed a complaint, testified, or participated in any manner in an investigation or proceedings before the Human Rights Commission. Section 49-2-301, MCA.

Plaintiff testified that he was retaliated against by his employer in that the employer refused to give him a letter of reference because he had sued the company, and that he was not included in the company and employee functions after he had sued the company.

Under the statutes, acts of retaliation for participating in proceedings before the Human Rights Commission are discrimination actions separate and apart from the claim of discrimination in the original proceedings. It might possibly be considered evidence of bad faith in the original termination of employment as well as in the retaliation. Plaintiff was therefore entitled to instructions to the jury based on his claim of retaliation, as it was for the jury to determine whether such retaliation actually existed. He was further entitled to comment on such retaliation in oral argument.

DID THE DISTRICT COURT ERR IN REFUSING TO ADMIT TESTIMONY OF THE COMMISSIONER’S COMPLIANCE OFFICER, JERRY KECK?

In hearing the dispute between Mahan and Cenex, Keck found that there was “probable cause” to believe that Cenex discriminated against Mahan on the basis of age. Mahan offered the determination testimony at the District Court. Mahan directs our attention to Rule 803(8) (C) of the Federal Rules of Evidence which allows public records and reports.

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness.

“(8) Public records and reports. Records, reports, statements or data compilations, in any form, of public officers or agencies, setting forth . . . (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investígation made pursuant to an authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”

However, the rule as adopted in Montana, Rule 803(8) (iv) M.R.Evid. states:

“[Not excluded by the hearsay rule are] records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: . . . (iv) factual findings resulting from special investigation of a particular complaint, case, or incident.”

The Commissioner’s comments to the Montana Code provides that it adopted the uniform rule (1974), rather than the federal rule “because it was clearer than the Federal Rule and because it expressed better policy with certain reports in requiring the official to testify rather than admitting his report as a hearsay exception.”

The Commission carefully considered the exceptions to Rule 803(8), before adopting the uniform rule. The very investigation information that the federal rule allows is specifically excluded in the Montana rule. The District Court did not err in excluding the testimony offered by Mahan.

Another consideration concerning whether the testimony of the compliance officer is allowable is whether as an expert witness he can testify as to the determination he made for the Human Rights Commission. Rule 704, M.R.Evid., states:

“Opinions on ultimate issue.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

The Advisory Committee’s Note to Federal Rule 704 (the rule being identical to the Montana rule), 56 F.R.D. 183, 284-85 (1972) indicates:

“. . . that the ‘basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact.’

“. . . the rule is not intended to allow all opinions and would exclude those ‘which would merely tell the jury what result to reach

It was Keck’s intention to testify that he determined that Mahan had been discriminated against because of his age. This is a determination for the jury to make. The issue here is not so complex that the jury is not able to determine whether there was age discrimination. Moreover, there was other sufficient evidence offered by both parties from which the jury could make a reasonable determination of whether there was age discrimination.

OTHER SPECIFICATIONS OF ERROR

We determine that the court properly instructed the jury with respect to the issues of bad faith and implied covenant of good faith and fair dealing in this cause. We find no error in the offered instructions on these subjects which were refused by the court.

We conclude it was within the discretion of the District Court to exclude refinery yield statements; evidence respecting new construction at the refinery; whether the reduction of force was caused by the mismanagement of the company; the relationship of the cost of labor to the cost of producing a refined product at the Laurel refinery; the benefits of Mahan’s job to the company and his ability to fill the job; and the exclusion of Exhibit 30 which does not particularly relate to age discrimination. Moreover, it was not error to allow defendant to offer evidence showing the necessity of the cost containment program which the defendant contends led to the reduction in force.

Accordingly, the judgment of the District Court is reversed, and the cause remanded to the District Court for further proceedings. Costs to plaintiff.

MR. JUSTICES HARRISON, WEBER and HUNT concur.

MR. JUSTICE SHEEHY,

concurring and dissenting.

I concur with the majority opinion but dissent from its holding that the “reasonable cause” finding of the state Human Rights Commission and the testimony of its compliance officer are not admissible.

After his discharge, Mahan filed a complaint of age discrimination in employment with the Federal Equal Employment Opportunity Commission (EEOC). That agency deferred investigation of Mahan’s complaint to the Montana Human Rights Commission. Mahan filed a perfected state complaint with the Montana Human Rights Commission on August 19, 1983, based on § 49-2-303, MCA.

After the Commission’s staff investigated the complaint, it made a written finding of reasonable cause to believe Mahan had been subjected to age discrimination in his employment with Cenex. The written finding was made on August 16, 1984. On October 5, 1984, because the complaint had been pending for more than one year at that point (§ 49-2-509(1) (b), MCA), at the request of Cenex, the Commission issued a “right to sue letter.” This procedure compelled Mahan to file a de novo action in District Court (§ 49-2-509(7), MCA.). Mahan filed his complaint in the District Court on December 6, 1984, including his age discrimination claim with other theories of recovery against Cenex.

In a special interrogatory, the jury found that Cenex was not guilty of age discrimination in terminating Wayne Mahan.

During the course of the trial the District Court ruled that Jerry Keck, the compliance officer of the Human Rights Commission, could not give testimony as to the regular procedures of the Human Rights Commission in investigating a complaint of age discrimination or his testimony as to where he obtained the information used in making a finding. The court further ruled that the written reasonable cause finding issued by the Commission was not admissible. The Human Rights Commission found that 5 younger engineers were hired and that 4 older engineers were discharged. One engineer was hired just 6 months before notice was given to Mahan of his discharge. Mahan also offered testimony through Keck that by the action of Cenex in refusing severance pay to Mahan after he filed an age discrimination complaint, Cenex may have been in violation of the retaliatory provision of the Human Rights Act. (Section 49-2-301, MCA.)

The Human Rights Commission filed in this appeal an amicus curiae brief. The purpose of the amicus brief was to inform the court of the development of law on the admissibility of Commission findings, the testimony of its staff members, and the use of statistics gathered during investigation as “probative evidence.”

The District Court refused the written finding of reasonable cause based on Rule 803(8) (iv), M.R.Evid. The court denied the oral testimony of Jerry Keck also.

Thus, there are two subissues which should be determined by us; one, whether the report of reasonable cause was admissible; and two, whether the oral testimony of Jerry Keck should have been allowed.

In Chandler v. Roudebush (1976), 425 U.S. 840, 48 L.Ed.2d 416, 96 S.Ct. 1949, the United States Supreme Court determined that such a report was admissible, relying on § 803(8) (c) of the Federal Rules of Evidence. Cenex contended before the District Court (and the District Court agreed) and now contends that the Rule 803(8) as adopted in Montana is different from the federal rule and therefore Chandler is not authority.

The pertinent part of Rule 803, M.R.Evid., is as follows:

“Rule 803. Heresay exceptions; availability of declarant immaterial.

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

“. . . (8) Public Records and Reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to an authority granted by law. The following are not within this exception to the hearsay rule: . . . (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness.” The Montana Supreme Court Commission on Rules of Evidence, in adopting what is now Rule 803(8) purposely departed from the federal rule. It explained why in its comment contained in its report to this Court on November 3, 1976:

“Exception (8). Public records and reports. This exception is not the same as Federal Rule 803(8), but is identical to Uniform Rule (1974) 803(8). The Commission chose to adopt the Uniform provision because it was clearer than the Federal Rule and because it expressed better policy with certain reports in requiring the official to testify, rather than admitting his report as a hearsay exception.

“The guarantee of trustworthiness of this exception can be found partly under Exception (6), records of regularly conducted activity, partly under the assumption that official duty is regularly performed [R.C.M. 1947, Section 93-1301-7(14)] and ‘the unlikelihood that he will remember details independently of the record.’ Advisory Committee’s Note, Supra 56 F.R.D. at 311.

“This exception is consistent with existing Montana law except that it clarifies several areas where official reports are to be excluded. R.C.M. 1947, Section 93-1001-32, provides the entries in official books or records, made in the performance of official duty are prima facie evidence of the facts stated therein. R.C.M. 1947, Section 93-901-1, et. seq., the Uniform Official Reports as Evidence Act, modernizes this exception to the hearsay rule. Section 93-901-1, MCA, provides: ‘Written reports or findings of fact made by the officers of this state, on a matter within the scope of their duty as defined by statute, shall, insofar as relevant, be admitted as evidence of the matter stated therein.’ The adoption of the exception is intended to remove the restriction of admitting only reports from state officials, found in the statute and applied in Richardson v. Farmers’ Union Oil Co., (1957) 131 Mont. 535, 553, 312 P.2d 134 (1957). Note that a police report was excluded in a civil case, but on grounds that it stated the cause of an injury, in Cagnier v. Zook, (1962) 141 Mont. 214, 377 P.2d 101. This exception is inconsistent with State v. Snider, (1975) 168 Mont. 220, 541 P.2d 1204, 32 St.Rep. 1056, 1062, which held a state chemist’s report admissible under Section 93-901-1, RCM (1947), and so this case is overruled by this exception.

The comment of the Commission made it clear that in those cases where reports of agency action are refused, it is “better policy with certain reports in requiring the official to testify.” The refusal therefore of the District Court to allow the testimony of Jerry Keck flies in the face of the reason adopted by the Commission in refusing the report in the first place.

There is an internal conflict within the present form of Rule 803(8). In the first sentence it makes admissible “factual findings resulting from an investigation made pursuant to authority granted by law.” The authority of the Human Rights Commission to investigate age discrimination cases is found in Chapter 2, of Title 49, MCA. Therefore under the first sentence of 803(8) its report of reasonable cause should have been admitted. However, subparagraph (iv) “factual findings resulting from special investigation of a particular claim, case or incident,” seems to take away what is granted in the first sentence.

In the face of the ambiguity contained in Montana’s § 803(8), the better practice is to follow the examples of the federal courts in construing the reports of the EEOC. The court of appeals for the Ninth Circuit strongly favors the admission of such reports as these in federal cases. Bradshaw v. Zoological Society of San Diego (1978), 569 F.2d 1066; Plummer v. Western International Motels Inc. (1981), 656 F.2d 502. In that Court of Appeals, whose jurisdiction includes Montana, under the federal system (it is also true in our system) the report to the Court of the Commission requires a de novo proceeding. The trier of fact therefore must determine from the beginning and on its own whether or not an infraction of the discrimination statutes occurred. The court said in Plummer:

“A civil rights plaintiff has a difficult burden of proof and should not be deprived of persuasive evidence. We therefore hold that the plaintiff has a right to introduce an EEOC probable cause determination in a Title VII lawsuit, regardless of what other claims are asserted, or whether a case is tried to a judge or jury . . .”

656 F.2d at 505.

The weight, of course, of this evidence is for the jury to decide.

Amicus brief points to a jury instruction in Gilchrist v. Jim Slemons Imports, Inc. (9th Cir. 1986), 803 F.2d 1488, 1500-1501, wherein the Court approved:

“The District Judge instructed the jury that ‘the letter need be given no greater weight than any other evidence in deciding the age discrimination claim’ and ‘that you, the jury, and not the EEOC are the sole judges of whether or not there was a violation of the Age Discrimination Employment Act.”

The reason for admitting such reports was expressed by Smith v. Universal Services, Inc. (5th Cir. 1972), 454 F.2d 154:

“. . . The action of the EEOC is not agency action of a quasi-judicial nature which determines the rights of the parties subject only to the possibility that the reviewing courts might conclude that the EEOC’s actions are arbitrary, capricious or an abuse of discretion. Instead, the civil litigation at the district court level clearly takes on the character of a trial de novo completely separate from the actions of the EEOC. (Citation omitted.) It is thus clear that the report is in no sense binding on the District Court and is to be given no more weight than any other testimony given at trial.

“This is not to say, however, that the report is inadmissible. A trial de novo is not to be considered a trial in a vacuum. To the contrary, the district court is obligated to hear evidence of whatever nature which tends to throw factual light on the controversy and ease its fact-finding burden.”

454 F.2d at 157.

Though the Court of Appeals for the Ninth Circuit holds such reports admissible as a matter of right, its view of admissibility is by no means the minority view. Courts considering admissibility generally determine that the question is discretionary with the courts, and as the brief of amicus points out, without burdening this opinion with extraneous citations, reports are admissible as “significant evidence,” as “discretionary,” “absent prejudice,” in the exercise of “sound discretion,” “admissible unless shown not trustworthy,” and similar holdings.

We are also concerned about the impact that a ruling of inadmissibility for Commission reports would have on other areas of illegal discrimination. The Human Rights Commission concerns itself with not only age discrimination, but other discrimination in employment, in public accommodations, in housing, in financing and credit transactions, in education, in insurance and retirement plans, in maternity leave, and in discrimination by the state. Part 3, Chap. 2, Title 49, MCA.

The better view, to be consistent with the Ninth Circuit, is to hold such reports admissible, and for the trial court to instruct the jury to give such reports only the weight they should be accorded.

In like manner, the oral testimony of Jerry Keck should have been admitted by the District Court. As an agent of this State, making an investigation which is authorized by law, his findings of fact were admissible, and constituted probative evidence which would be an aid to the jury.

MR. JUSTICE McDONOUGH

dissenting and concurring:

I dissent. The trial court’s ruling on Mahan’s challenges to jurors for cause was not clearly erroneous, and I would affirm the jury’s verdict. I concur, however, with the balance of the majority opinion.

If Mahan’s objection for cause to the two jurors was for a legal cause, this Court would be in as good a position as the trial court to decide the question. Instead, Mahan’s objection goes to the grounds of unqualified opinion, belief as to the merits, or existence of the state of mind evincing enmity against or bias in favor of a party. The majority has also alluded to Anderson’s possible physical incompetency. Disqualification of a juror on any of these grounds is a question of fact to be decided by the trial judge. Rule 47(a), M.R.Civ.P.; Simons v. Jennings (1935), 100 Mont. 55, 46 P.2d 704. By the very nature of a jury selection proceeding, the challenging party bears the burden of proof that the proposed juror should be dismissed for cause. Sirotiak v. H.C. Price Co. (Alaska 1988), 758 P.2d 1271; City of Kotzebue v. Ipalook (Alaska 1969), 462 P.2d 75, 77; Borman v. State (1967), 1 Md.App. 276, 229 A.2d 440; State v. Davis (App.1983), 137 Ariz. 551, 672 P.2d 480. For this Court to reverse a trial court’s ruling on a question of fact, we must find that the ruling is clearly erroneous. Rule 52(a), M.R.Civ.P.

As with any trier of fact, the District Court has the advantage of observing a prospective juror’s demeanor and the tenor of his answers. Nonverbal communication skills are important on voir dire in the selection of a jury. See, V. Starr & M. McCormick, Jury Selection (1985), Chapters 11, 12, 13 and 14. The look on a prospective juror’s face sometimes indicates whether he correctly understands the question and how his answer is to be taken. This Court discussed the nature of jury selection proceedings in Watson v. City of Bozeman (1945), 117 Mont. 5, 10-11, 156 P.2d 178, 181:

“While we feel that under the circumstances of this case, on proper motion, the trial court should call in other jurors, we cannot say that its failure to do so constituted an abuse of judicial discretion. As is said in State v. Russell, supra [73 Mont. 240, 235 P. 712]: ‘The examination of a juror on his voir dire is no more nor less than the taking of testimony on the issues raised as to his qualifications to serve in the case before the court. . . . The determination must be left largely to the sound discretion of the trial court (Scribner v. State, 3 Okla.Cr. 601, 108 Pac. 422, 35 L.R.A., N.S., 985; Commonwealth v. Minney, 216 Pa. 149, 65 A. 31, 116 Am.St.Rep. 763) and, in determining the question, the trial court, as in passing upon any other question of fact established by oral testimony, has the advantage of observing the witness on the stand, his demeanor and candor, or lack of candor, and a review of the court’s rulings and findings should be governed by the same rules as in reviewing any other findings and judgment based thereon. They should not be set aside unless error is manifest, or there is shown a clear abuse of discretion.’ ”

It is clear from the colloquy among McCann, Anderson and the attorneys in this case that the jurors expressed an opinion, belief or preference. It is also clear, however, that the jurors said they would put these aside and follow the instructions of the court.

When jurors on voir dire make conflicting statements, it is a question of fact for the trial judge to decide whether they can act impartially. People v. Duncan (1960), 53 Cal.2d 803, 3 Cal.Rptr. 351, 350 P.2d 103; Rule 47(a), M.R.Civ.P. The statements made by these prospective jurors in response to questions by the court (and counsel for Cenex in Anderson’s case) conflicted with their prior responses to questioning by counsel. The court committed no manifest, clearly apparent, or obvious error, even in the “cold” record. The majority mischaracterizes the court’s questions as too general. In reality, counsel’s questions were as general or more general than those asked by the court.

The proper approach for deciding whether a juror is impartial is found in State v. White (1968), 151 Mont. 151, 155-56, 440 P.2d 269, 272. In White, this Court quoted State v. Allison (1948), 122 Mont. 120, 199 P.2d 279, and said:

“It is a difficult matter at best to ascertain the real state of mind of a prospective juror with respect to detecting the existence of bias or prejudice against one accused of crime. For that reason this court has said (State v. Russell, 73 Mont. 240, 249, 235 P. 712, 715) that the determination of the qualification of a juror to serve in a case before the court ‘must be left largely to the sound discretion of the trial court.’ Again in State v. Huffman, 89 Mont. 194, 296 P. 789, 790, this court said: ‘. . . the trial court is the judge of the weight to be given to the testimony adduced on a voir dire examination. ‘ True, there are cases holding that when a witness has once admitted bias his subsequent statements that he can consider the evidence impartially should be viewed with caution. But granting the need for careful scrutiny of the testimony of a witness who has first said ‘no’ and then said ‘yes,’ it still remains the province of the trial court to decide where the truth lies and with that determination the appellate court will not interfere unless a clear abuse of discretion is shown. State v. Russell, supra.

Although this Court said in Watson and White that appellate courts would not interfere unless a clear abuse of discretion is shown, with the adoption of Rule 52(a), M.R.Civ.P., the test should be whether the court’s decision is clearly erroneous.

The majority’s reference to the constitutional right of a jury trial is inappropriate. The right to four peremptory challenges is only statutory. See, § 25-7-224(1), MCA. The Legislature could raise or lower the number of challenges if it so desired. It is merely a means of obtaining a fair and impartial jury. There is no constitutional right to exercise peremptory challenges and the loss of such a challenge is not of constitutional dimension. Ross v. Oklahoma (1988), _U.S._, 108 S.Ct. 2273, 101 L.Ed.2d 80.

MR. JUSTICE GULBRANDSON and MR. JUSTICE McDON-OUGH would grant the petition for rehearing.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    RONALD R. STEWART and Lydia M. Stewart, Plaintiffs and Appellants, v. BILL FISHER, Defendant and Respondent.
    No. 88-138.
    Submitted Oct. 12, 1988.
    Decided Jan. 25, 1989.
    767 P.2d 1321.

      Roger M. Sullivan argued, McGarvey, Heberling, Sullivan and McGarvey, Kalispell, for plaintiffs and appellants.
    I. James Heckathorn argued, Murphy, Robinson, Heckathorn and Phillips, Kalispell, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The mobile home owned by Stewarts, the plaintiffs, fell off its foundation blocks approximately one week after Fisher, the defendant, had set up the mobile home in a new location. The jury empaneled in the District Court of the Eleventh Judicial District, Flathead County, returned a verdict on November 25, 1987, finding in favor of Fisher. The District Court denied Stewarts’ motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Stewarts appeal. We affirm the District Court.

The issues raised on appeal are:

(1) Whether the District Court improperly failed to instruct the jury on the legal standards associated with an “act of nature” defense.

(2) Whether the District Court improperly failed to instruct the jury that more than one factor may cause an injury and that the defendant may not avoid liability by claiming that some other factor helped cause the injury.

(3) Whether the plaintiffs were entitled, as a matter of law, to judgment on the issue of defendant’s liability for negligence, and whether substantial credible evidence supports the jury verdict.

(4) Whether the District Court erred in not granting the plaintiffs’ motion in limine which sought to preclude the defendant’s mention at trial of a collateral source of insurance.

In mid-March of 1985, Lydia Stewart decided to relocate her mobile home. She contacted Bill Fisher, a professional contractor who sets up and services these types of dwellings. Fisher agreed to do the work, which included leveling, blocking, and skirting the mobile home at its new location.

On March 30, 1985, Fisher transported the Stewarts’ mobile home to its new location. Before setting the home up, Fisher had Lydia Stewart ask the manager of the mobile home park to plow the lot because a layer of snow and ice was in the area where the mobile home was to be placed. After the area was plowed, Fisher testified that among the mixed dirt and gravel, ice spots existed. Nonetheless, Fisher proceeded to setup the mobile home on the new location. Fisher testified that he used one more set of blocks than usual because the lot sloped and a waterbed was to be placed in the back of the home.

Fisher and his employee worked on blocking and leveling until 5:00 p.m. on March 30, 1985. An understanding existed between Lydia Stewart and Fisher that Fisher would return to re-level the home and put the skirting up, however, the testimony differs as to whether Fisher would return on his own or whether he would return when Lydia Stewart called him to inform him that the snow and ice was gone from the yard.

Eight days later, on April 7, 1985, at approximately 11:30 p.m., the Stewarts’ mobile home fell off its foundation blocks. The mobile home itself sustained major damage and was later sold to a local wrecking yard for salvage value. Likewise, a large amount of the Stewarts’ personal property inside the mobile home suffered either serious damage or was destroyed. In addition, following the accident, Lydia Stewart, who was alone inside the mobile home when it fell, began to suffer from a psychological disorder requiring psychiatric treatment and multiple hospitalizations.

The first issue raised on appeal is whether the District Court improperly failed to instruct the jury on the legal standards associated with an “act of nature” defense.

At trial, Stewarts asserted that Fisher was negligent in his duty of setting up their mobile home. The issue to be determined in such an action is “whether a reasonably prudent and skillful contractor would have acted as defendant did.” Bush v. Albert D. Wardell Contractor, Inc. (1974), 165 Mont. 312, 317, 528 P.2d 215, 217-18. The burden of proving that a defendant breached his duty by not exercising reasonable care is on the plaintiffs. See e.g., State ex rel. Burlington Northern, Inc. v. District Court of First Judicial Dist. (1972), 159 Mont. 295, 301, 496 P.2d 1152, 1155-56.

Stewarts then argue on appeal that Fisher, instead of simply denying negligence, relied upon an “act of nature” defense when asserting that he was not liable for their mobile home falling off its foundation blocks. In particular, Stewarts point towards Fisher’s testimony where he stated, for example, that “unstable ground” was the cause of the mobile home falling from its foundation blocks. The Stewarts therefore contend that the District Court erred by not instructing the jury on the legal standards that a defendant must meet before asserting this defense. We disagree. The case before the jury was simply whether Fisher acted as a responsibly prudent and skillful contractor when setting up the Stewarts’ mobile home under the winter weather conditions. Merely because ice was present when Fisher set up the mobile home, does not necessarily mean that an “act of nature” or “act of God” defense is being raised. We conclude that Fisher did not raise such a defense nor do the facts warrant the use of it. We hold that in the present case, the District court did not err by refusing to instruct the jury on the legal standards associated with an “act of nature” defense.

The second issue raised on appeal is whether the District Court improperly failed to instruct the jury that more than one factor may cause an injury and that the defendant may not avoid liability by claiming that some other factor helped cause the injury.

Stewarts argue that if the damage to their mobile home was the result of two concurring causes, one being the negligence of the defendant and the other being an act of nature, then the District court committed reversible error by not instructing the jury on multiple factor causation. In light of our holding that an act of nature defense is not applicable in this case we hold that the District Court did not err when it refused Stewarts’ proposed instruction on multiple factor causation.

The third issue raised on appeal is whether the plaintiifs were entitled, as a matter of law, to judgment on the issue of defendant’s liability for negligence, and whether substantial credible evidence supports the jury verdict.

When substantial evidence exists to support the jury verdict, then this Court will sustain the District Court’s action denying a motion for directed verdict. Gunnels v. Hoyt (Mont. 1981), [_Mont._,] 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495. When determining whether substantial evidence exists to support the verdict, this Court reviews the evidence in a light most favorable to the prevailing party. Wheeler v. City of Bozeman (Mont. 1988), [232 Mont. 434,] 757 P.2d 345, 347, 45 St.Rep. 1173, 1176. The evidence may be inherently weak and still be considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176, Local Union No. 400 of Intern. Union v. Bosh (Mont. 1986), [220 Mont. 304,] 715 P.2d 36, 42, 43 St.Rep. 388, 394. In addition, when conflicting evidence exists, the credibility and weight given to the conflicting evidence is within the province of the jury. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176.

In the present case, the jury had to determine whether a defendant acted as a reasonably prudent and skillful contractor. The jury had available to it all the evidence presented at trial, including the testimony of three professionals regarding the proper standards and procedures for setting up mobile homes under winter conditions; the procedures Fisher used in setting up Stewarts’ mobile home; and the prevailing weather conditions. After being presented with the evidence at trial, the jury found in favor of Fisher.

The Stewarts argue that the uncontradicted testimony establishes that at least a portion of the lot onto which the Stewarts’ mobile home was moved was still covered with ice after it had been plowed and that Fisher was aware of this fact; that it is a violation of accepted standards and procedures to set foundation blocks on top of ice rather than clearing out the ice and setting the foundation block on the ground; and that at least two of the foundation blocks were set on ice. However, testimony was also presented that the mobile home would not have fallen off its foundation blocks when only two of the foundation blocks were set on ice. The evidence also establishes that the lot where the mobile home was to be placed was not covered entirely with ice, but that the ice was only located in spots. Thus, the jury could have determined that only two of the foundation blocks were set on ice and that therefore Fisher acted as a reasonably prudent and skillful contractor when only two of the nine foundation blocks were placed on ice.

As we have previously held, the evidence may be inherently weak and still be considered substantial and the credibility and weight given to conflicting evidence is within the jury’s province. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176. We therefore hold that substantial credible evidence exists to support the jury verdict and that therefore the Stewarts were not entitled, as a matter of law, to judgment on the issue of defendant’s liability for negligence.

The last issue raised on appeal is whether the District Court erred in not granting the plaintiffs’ motion in limine which sought to preclude the defendant’s mention at trial of a collateral source of insurance.

The Stewarts’ presented the court with a motion in limine during pretrial conference, seeking to preclude the defendant’s mention at trial of a collateral source of insurance. The District Court reserved ruling on this motion. The Stewarts did not request a ruling on this motion before the case went to trial, but more importantly, the Stewarts did not object, nor present the District Court with any motions for mistrial or to strike the alleged testimony when insurance was first mentioned by the defendant at the trial. Failure to object or request corrective action after the mentioning of insurance by the defendant constitutes a waiver of objection on this issue. Rasmussen v. Sibert (1969), 153 Mont. 286, 295, 456 P.2d 835, 840.

We therefore hold that this issue is not properly before this Court as a result of the Stewarts’ failure to object at the time when insurance was first mentioned during the trial.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    CONTINENTAL OIL COMPANY, a corporation, Petitioner, v. ELKS NATIONAL FOUNDATION, a legal entity; Floyd R. Young; Chad Randall Young, by his guardian Sherry L. Young; Joshua Lee Young, by his guardian Sherry L. Young; Michael Edwin Maxwell, by his guardian Shirley G. Johnson; Corinna Nell Maxwell, by her guardian Shirley G. Johnson; Lois E. LaRue Riggins; Sherry L. Young; James Byrd; Joseph Edwin Maxwell, Jr.; Betty Wilson; Mary Jo Byrd; Thomas A. Larson and Gene Huntley, Respondents.
    No. 88-331.
    Submitted Dec. 13, 1988.
    Decided Jan. 25, 1989.
    Rehearing Denied Feb. 22, 1989.
    767 P.2d 1324.

      Chris Mangen, Jr., argued, Carolyn Ostby, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for petitioner.
    Gene Huntley argued, Baker, for respondents.
    James L. Sandall, Billings, for amicus curiae Frank A. Gunnip and Robert P. Schwinn.
    W.H. Bellinghan, Billings, for Shell Oil Co.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an application for a writ of supervisory control under Rule 17, M.R.App.P. It follows a summary judgment by the District Court for the Sixteenth Judicial District, Fallon County, which adjudicated the ownership of the working interest in an oil and gas lease. We accept supervisory control and reverse the judgment of the District Court.

The issue is whether this Court should issue a writ of supervisory control to determine the extent of Continental Oil Company’s ownership in the oil and gas lease.

This case was before the Court previously as Gunnip v. Continental Oil Co. (Mont. 1986), [223 Mont. 141,] 727 P.2d 1315, 43 St.Rep. 1605. That opinion sets forth the complicated history of the ownership of the working interest in the NVi of the NW'/i of Section 8, Township 7 North, Range 60 East. In all discussion in this opinion, we are referring to that working interest. In the Gunnip opinion, this Court indicated the ownership of the working interest, as established in the previous judgments relating to the property, as follows: half of the NVfeNWVi in H.W. McDonald, subject to a 1962 ratification agreement with Continental Oil Company (Continental), and the other half of the N14NWV4 in Frank Gunnip. Gunnip, 727 P.2d at 1316. The Court remanded the case to District Court for joinder of essential parties and “to assess Continental’s interest considering potential application of adverse possession, waiver and estoppel.” Gunnip, 727 P.2d at 1317.

The plaintiffs in the present case trace their ownership in the NV&NWV4 to conveyances from H.W. McDonald subsequent to the 1962 ratification agreement. The effect of the 1962 ratification agreement was argued on remand. The District Court ruled that the intent of the parties to the ratification was that Mr. McDonald conveyed to Continental one half of his interest in the NV&NWV4. It ruled that the ownership of the NVfeNW^ is as follows: one half in Frank Gunnip and his assigns, one fourth in plaintiffs, and one fourth in Continental. Continental filed a notice of appeal to which plaintiffs objected because certification had not been obtained from the lower court as required by Rule 54(b), M.R.Civ.P. We allowed an opportunity for the lower court to certify its partial summary judgment, but the court declined to do so. Continental now asks this Court to exercise its power of supervisory control. At oral argument, counsel for plaintiffs joined in the request that this Court determine the interest of Continental in the NV4NWV4.

Frank Gunnip and his assign Robert Schwinn, who were formerly plaintiffs, have obtained separate counsel and have been redesignated by the lower court as defendants. They have filed a third-party complaint below, asserting their right to one half of the working interest in the NVfeNWVi. In their brief to this Court, they take no position on the application for supervisory control but ask that their one half interest in the working interest in the NV&NWV4 be acknowledged.

Should this Court issue a writ of supervisory control to determine the extent of Continental’s ownership in the oil and gas lease?

Our caselaw has set forth the standard to be employed in determining whether supervisory control under Rule 17, M.R.App.P., is warranted. Supervisory control is proper to control the course of litigation when the lower court has made a mistake of law or willfully disregarded the law so that a gross injustice is done and there is no adequate remedy by appeal; also, to prevent extended and needless litigation. State Highway Com’n. v. District Ct., Thirteenth J.D. (1972), 160 Mont. 35, 42-43, 499 P.2d 1228, 1232.

As the opinion in Gunnip stated, the 1962 ratification agreement signed by Mr. McDonald provided that:

“. . . the undersigned, H.W. McDonald, does hereby ratify, adopt and confirm said assignment, in all things with the same force and effect as if the undersigned had been named the assignor therein and had duly executed and delivered said assignment to Continental Oil Company.

“For the same consideration, the undersigned does hereby transfer, assign, set over and convey unto Continental Oil Company an undivided one-half (V2) interest in the oil and gas lease above described

Gunnip, 727 P.2d at 1316. The plaintiffs argued here, as they did before the District Court, that the ratification is ambiguous so that a court must look beyond the four corners of the document to interpret it. The Court was not persuaded by that argument in Gunnip, nor is it now. We stated:

“There remain unresolved issues of material fact regarding the interest of Continental. Although McDonald conveyed an ‘undivided one-half interest’ in the Lease under the ratification agreement, Continental admits in its brief that it did not treat its 50% interest in the NVá of the NWVi as being derived solely from McDonald until judgment no. 4062 was entered. In 1964 McDonald assigned undivided interests to Huntley, Iverson, and Larson. Huntley, Iverson and Larson have claimed under this assignment adverse to the interest Continental now claims under the ratification agreement. A trial must be held to assess Continental’s interest considering potential application of adverse possession, waiver and estoppel.”

Gunnip, 727 P.2d at 1317.

In the above quotation, this Court recognized that the ratification conveyed an “undivided one-half interest” in the lease. Then, as now, we found no ambiguity in the ratification agreement. We remanded so that adverse possession, waiver, and estoppel could be considered as theories under which Continental might have subsequently lost or forfeited any portion of its one-half interest. The District Court ignored this Court’s opinion and reconsidered the effect of the ratification agreement. We therefore grant supervisory control.

We have considered all materials and evidence submitted by plaintiffs, including copies of certain oil division orders and correspondence between Continental and plaintiffs’ attorney. We have considered whether those might support a theory of adverse possession, waiver, or estoppel against Continental. However, we find nothing to indicate that Continental has relinquished its claim to any portion of one half of the working interest in the NVfeNWVi. The documents reflect Continental’s mistaken reliance, at that time, on the validity of interests claimed by Vernon Eide and J. Von De-Linde. This ended after the 1970 judgment voiding the conveyance to Mr. Eide and Mr. Von DeLinde and vesting ownership in Gunnip. See Gunnip, 727 P.2d at 1316. Plaintiffs contend that the documents demonstrate that Continental relied upon a conveyance to it from Mr. Eide and Mr. Von DeLinde. We do not accept that contention. The mere statement in the letters and division order of a supposed interest held by Eide and Von DeLinde is not enough to establish a loss of interest conveyed to Continental from H.W. McDonald. The documents also indicate that Mr. Huntley and two other McDonald assigns held interests in the lease. They do not name the grantor of any of the interests, however. The documents uniformly show Continental’s claim to one half of the working interest. We conclude that plaintiffs have failed to present substantial evidence to support a theory of adverse possession, waiver, or estoppel against Continental.

We therefore reverse the District Court. We hold that Continental owns an undivided one-half interest in the working interest in the NVfcNWVi. We further hold that Mr. Gunnip and his assigns own the remaining half of the working interest in the NVfcNWVi. We remand to the District Court for entry of judgment establishing the ownership of the working interest in the NVfcNWV4 and for such further proceedings as are necessary in conformity with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT and McDONOUGH, and the HON. LEONARD H. LANGEN, District Judge, sitting for MR. JUSTICE GULBRANDSON and MR. CHIEF JUSTICE HASWELL, retired, sitting for MR. JUSTICE SHEEHY concur.


author: MR. JUSTICE GULBRANDSON

text:
    MARTHA M. BERLIN and Donald J. Peterson, Plaintiffs and Respondents, v. BRETT A. BOEDECKER, Defendant and Appellant.
    No. 88-453.
    Submitted on Briefs Dec. 9, 1988.
    Decided Jan. 25, 1989.
    767 P.2d 349.
    Loren J. O’Toole, II, O’Toole & O’Toole, Plentywood, for defendant and appellant.
    James A. Manley, Poison, for plaintiffs and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant appeals from an order by the District Court of the Eleventh Judicial District, Flathead County, denying his motion for a change of venue. We affirm the District Court’s denial.

In May of 1984, Joseph Berlin, allegedly acting on behalf of his wife Martha Berlin, and Donald Peterson met with defendant Boedecker in Dawson County and told Boedecker of their interest in purchasing mineral investments. All orally agreed that Boedecker would find, evaluate and appraise potential mineral investment opportunities for the plaintiffs in return for an agreed upon commission. The parties did not agree upon a place of performance for this oral contract.

Later that same month, defendant Boedecker told plaintiffs he had a potential seller of such mineral interests. The plaintiff's, defendant and the potential seller (who was defendant’s brother) subsequently met together in Flathead County. At this meeting, defendant allegedly apprised plaintiffs of the value of these mineral interests located in eastern Montana and western North Dakota. Plaintiffs subsequently purchased these mineral interests from the seller for $175,000, and defendant was paid the agreed upon commission in Missoula County.

Plaintiffs later determined that the mineral interests were nearly worthless. They then filed suit in Flathead County on March 10, 1988, alleging in Count I that defendant breached his contractual obligation by appraising and evaluating the mineral interests at an inflated value and by representing the seller’s interests while under obligation to the plaintiffs. Plaintiffs also alleged in Counts II and III that defendant tortiously breached his fiduciary duty of reasonable care in regards to the investigation, valuation and appraisal of the mineral interests and that he committed constructive fraud.

Thereafter, on April 11, 1988, defendant filed a timely motion for change of venue to Dawson County, the county of his residence. Following a hearing on May 19, 1988, the court denied defendant’s motion for change of venue. Defendant appeals from his denial.

The sole issue raised on appeal is whether Flathead County is the proper venue for this cause of action. “The general rule governing venue of any civil action is that the action shall be tried in the county in which the defendant resides.” Whalen v. Snell (1983), 205 Mont. 299, 301, 667 P.2d 436, 437; see also § 25-2-118(1), MCA. A plaintiff also may choose to bring a contract action in the county where a contract was to be performed. Section 25-2-121(l)(b), MCA; Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 146 P.2d 151. However, this performance exception applies only if the plaintiff clearly shows that the contracting parties mutually agreed at the time they entered the contract that the contract was to be performed in a particular county other than that of defendant’s residence. The particular county must be clear from the express terms of the contract or by necessary implication from the contract terms. Armon v. Stewart (1973), 162 Mont. 262, 264, 511 P.2d 8, 9.

In the present case, the parties did not have a written contract with any such express terms. Further, defendant’s oral obligation to evaluate, appraise and recommend certain mineral investments did not necessarily imply any one county for performance. Consequently, the contract performance exception would not apply to this case and would not justify the filing of this action in Flathead County. See Erickson v. Toy (1963), 142 Mont. 121, 385 P.2d 268.

A plaintiff also has the option of bringing the action in the county where the alleged tort was committed. By statute:

“If the tort is interrelated with and dependent upon a claim for breach of contract, the tort was committed, for the purpose of determining the proper place of trial, in the county where the contract was to be performed.”

Section 25-2-122(2), MCA. This statutory determination of the situs of a tort generally applies only to a hybrid tort/contract case with an interrelated and dependent tort claim and a contract clearly indicating a place of performance. Slovak v. Kentucky Fried Chicken (1974), 164 Mont. 1, 7, 518 P.2d 791, 794.

This statutory determination of the place of a tort in a hybrid case was not intended to create new law but only to codify existing case law. Weiss v. State (Mont. 1986), [219 Mont. 447,] 712 P.2d 1315, 1317, 43 St.Rep. 82, 84, quoting from Comments by the Montana Supreme Court Commission on the Rules of Evidence. We thus interpret this statute as being in accord with existing case law. Montana case law resorted to this hybrid case rule when the contract clearly indicated a place of performance and the parties contested the place of the tort. See, Slovak, 518 P.2d at 794; see also Brown v. First Federal Sav. & Loan Ass’n of Great Falls (1964), 144 Mont. 149, 394 P.2d 1017. Consequently, when no clear place of performance is indicated in the contract, as in the present case, this hybrid case rule provides little guidance as to where a tort was committed. We therefore will look to the facts to determine the actual place where the alleged tort occurred.

The facts in this case indicate that any tort resulting from defendant’s alleged misrepresentation of the proper value of the mineral interests would have had to occur in Flathead County as this is the county where the defendant met with the plaintiffs and the seller and discussed the value of the seller’s mineral interests. Consequently, the District Court did not abuse its discretion when it denied defendant’s motion to move the action to Dawson County. The District Court had to change the place of trial, upon motion, if the county designated in the complaint was not the proper county. Section 25-2-201(1), MCA. Yet, the facts indicated that the alleged tort occurred in Flathead County and the plaintiffs were thus entitled to file this case in that county.

The District Court’s denial of the motion for change of venue is affirmed.

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


author: MR. JUSTICE McDONOUGH

text:
    VICKI BLACK BALLARD, Claimant and Appellant, v. CLARK FORK VALLEY HOSPITAL, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 88-476.
    Submitted on Briefs Dec. 9, 1988.
    Decided Jan. 26, 1989.
    767 P.2d 1327.

      Milodragovich, Dale & Dye, Kristine L. Foot, Missoula, for claimant and appellant.
    Rebecca L. Smith, Asst. Atty. Gen., Agency Legal Services, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant Ballard appeals the judgment of the Workers’ Compensation Court. The lower court held that Ballard suffered a compensable injury, but that Ballard’s injury reached maximum healing a short time from the date it occurred. The lower court also held that no entitlement existed after Ballard reached maximum healing. Ballard appeals this decision.

Respondent, the State Compensation Insurance Fund (Fund), cross appeals contending that the lower court erred in finding the existence of a work injury. We affirm the lower court on both the appeal and the cross appeal.

The Clark Fork Valley Hospital in Plains, Montana, employed Ballard as a nurses aid. On January 12, 1981, Ballard injured her back catching and lifting a patient who was falling to the floor. At the time of the injury she knew that she had hurt her back, but she continued to work her regular hours through January 20, 1981.

On January 20, 1981, Ballard aggravated the back injury bending over to pick up an article of clothing while shopping. The severe pain from the aggravated injury led Ballard to consult Dr. Albert-son. Dr. Albertson suspected a disk herniation, and prescribed six weeks bed rest. Approximately two weeks later Ballard told Albert-son her back had improved and that she could return to work. Albertson released her to work, and noted that he may have been mistaken on his earlier diagnosis of disk herniation because Ballard had improved so quickly.

Ballard returned in early February with reduced hours. The record is unclear on whether Ballard or the Hospital requested the reduction in work time. Ballard contends on appeal that the injury forced her to accept fewer hours on the job.

Ballard testified that at that time she returned to work the injury was improved but not completely healed. She also testified that the press of financial needs forced her back to work even though performance of her job duties caused pain. She continued her employment at the Hospital until 1984 when she quit in anticipation of the birth of her third child.

After the birth of her third child Ballard found employment at Benji’s Restaurant, and at Dairy Queen. Ballard also gave birth to two other children prior to 1987. Ballard testified that her pregnancies never aggravated her allegedly continuing back problems.

On September 29, 1986, Ballard saw Dr. Wielenga complaining of severe back pain. Dr. Wielenga suspected Ballard suffered from nerve compression syndrome resulting from a herniated disk. The parties agree that available tests could confirm or refute the presence of a herniated disk, but that these tests have not been performed.

Resolution of Ballard’s appeal hinges on conflicting evidence on the presence of a disabling condition from a work injury. Ballard’s testimony supports a conclusion that the source of her 1986 back problems may be traced to the injury in 1981. Ballard testified that the injury never healed and that the pain never completely subsided, but that she endured the presence of her injury for lack of funds to seek a medical solution.

However, the Fund effectively argues that the circumstances and passage of time surrounding Ballard’s injury and her return to work fail to support Ballard’s version of events. For example, Ballard failed to seek any medical treatment for her back between 1981 and 1986. She had two children in the interim, and continued her employment at the hospital. The Fund also pointed out that in December of 1981 Ballard filed a report on another back injury at work. When questioned on this incident, Ballard testified that she could not remember filing the injury report. The report conflicted with Ballard’s testimony that the single injury to her back occurred in January of 1981.

The Fund also contends that the medical evidence supports the decision of the lower court. For example, Dr. Albertson testified on whether it was possible to connect the prior injury to Ballard’s current condition as follows:

“Sometimes I think that is possible to do. In this case I don’t think it is because we didn’t see her enough to really document exactly what was wrong with her and where it was because she got well so quickly. So no x-rays were taken and she had no negative neurologic — or no positive neurologic findings or anything else to localize the disk area. If we had known she had hurt the L4-5 disk in the original area and we knew that she hurt the L4-5 disk later, you could probably make a correlation, but there’s no way to know that in this case.”

The judgment of the lower court summarized the medical and other evidence as follows:

“Since leaving Clark Fork Regional Hospital in 1983, she [Ballard] has worked at Benji’s [Restaurant] and Dairy Queen. She has also given birth to three children prior to her complaint of back pain to Dr. Wielenga on September 29, 1986. Because there were no x-rays taken or neurological tests performed in 1981, Dr. Albertson could not make a correlation between her 1986 condition and her 1981 injury. Because the claimant has the burden of proving her claim by a preponderance of the credible evidence, the Court finds that the claimant did not carry that burden and failed to relate any future wage loss after she returned to work February 4, 1981.”

Ballard contends the finding that she failed to carry the burden in showing a causal connection ignores other medical testimony. For example, Ballard contends that Dr. Wielenga’s diagnosis provided the necessary evidence of causation. Wielenga concluded that:

“[I]t is a reasonable possibility that her acute back problems of five years ago, which are similar to those she is now experiencing, could have resulted from the lifting of the patient at the hospital. It is, indeed, possible that the lifting of the patient with the associated tingling into her leg may have caused a weakening of her disk. This may have resulted, a few days later [while shopping], in a more complete herniation with minimal stress placed on the back and the resulting acute symptoms of nerve compression that were seen on her exam of January 21, 1981.”

Ballard contends that Dr. Wielenga’s statement and Albertson’s 1981 diagnosis provide evidence sufficient to demonstrate that her 1981 injury more probably than not set in motion a continuous and progressively deteriorating condition leading to her disability in 1986. We disagree.

Dr. Wielenga qualified his opinion on the possibility of a connection between the conditions as follows:

“This is a reasonable medical possibility, although I cannot make a definite statement as to whether this actually occurred in Vicki’s case since I was not at all a part of her initial evaluation.”

And Albertson, the physician conducting the initial examination, holds the opinion that it is impossible to connect Ballard’s condition in 1986 with her injury in 1981. Given the fact that Albertson participated in the initial evaluation and Wielenga did not, the lower court was justified in finding Albertson’s opinion more probative than Wielenga’s opinion.

Ballard also argues that the Fund failed to carry the burden of showing that an intervening cause resulted in Ballard’s 1986 impairment citing Gaffney v. Industrial Accident Board (1955), 129 Mont. 394, 404, 287 P.2d 256, 261. However, in Gaffney, the only “sworn testimony before the Board, from which a rational finding can be made, is that the injury received by claimant was a contributing cause of his present total and permanent disability.” Gaffney, 287 P.2d at 261. Here, the medical evidence and the lapse of time during which Ballard continued her employment at the hospital provide evidence to make a rational finding that the injury did not contribute to her condition in 1986.

We also agree with the Fund that the facts and law in Brown v. Ament (Mont. 1988), [231 Mont. 158,] 752 P.2d 171, 45 St.Rep. 508, and Currey v. 10 Minute Lube (Mont. 1987), [226 Mont. 445,] 736 P.2d 113, 44 St.Rep. 790, more closely control this case than Gaffney. In Brown the claimant failed to carry the burden of showing a causal connection because:

“The medical evidence is inconclusive and, at best, establishes only a possibility of a causal link. As noted by the Workers’ Compensation Court, this is a difficult case to chart and ‘too much time has passed without explanation and without a tracing of the injury through that time.’ Following December 1, 1978, claimant did not seek any medical attention for his back for approximately three and one-half years. The evidence presented fails to sufficiently demonstrate that treatment rendered after that period was a direct result of the injury received in 1978 . . .”

Brown, 752 P.2d at 175. In Currey this Court stated:

“ ‘Medical possibility’ is to be weighed just as any other evidence; if supported by other independent evidence it is ‘acceptable’ to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate the conclusion that the claimant has met his burden of proof under the Act.”

Currey, 736 P.2d at 116 (quoting Wheeler v. Carlson Transport (1985), 217 Mont. 254, 704 P.2d 49, 53-54, 42 St.Rep. 1177, 1183). Ballard fails to distinguish Currey and Brown.

Ballard argues further that the lower court erred in relying on Stangler v. Anderson Meyers Drilling Co. (Mont. 1987), [229 Mont. 251,] 746 P.2d 99, 44 St.Rep. 1944. In Stangler evidence that the claimant had returned to strenuous labor supported a finding that the injury had reached maximum healing. Stangler, 746 P.2d at 102. According to Ballard, the lower court misinterpreted Stangler by holding that the work release given by Albertson to Ballard established the end of the healing period. We agree that situations exist where the Workers’ Compensation Court properly finds that claimants have returned to work prior to maximum healing of their injury. Tenderholt v. Travel Lodge Int’l. (Mont. 1985), [218 Mont. 523,] 709 P.2d 1011, 42 St.Rep. 1792. And that Stangler should not be interpreted to mean that a work release settles the maximum healing issue. However, here the lower court focused on evidence in addition to the release.

Finally, Ballard argues that equity prevents a finding that she failed to prove her case. According to Ballard, because of the Fund’s initial denial of her claim she lacked medical benefits to make affordable the necessary testing to confirm the presence of a herniated disk. Her brief states, “Vicki should not be required to satisfy her burden of proof by presenting medical evidence of equal weight to the tests the defendant denied her.”

The claimant bears the initial liability for medical expenses. Section 39-71-704, MCA; ARM § 24.29.1401. Section 39-71-2907, MCA, authorizes assessment of penalties on insurers who unreasonably deny benefits. Thus, under the Montana Workers’ Compensation Act no issue exists on the failure of the Fund to provide tests to diagnose Ballard’s condition.

The Fund’s position on cross appeal concedes that medical testimony demonstrates a possibility that a work injury occurred. However, the Fund contends that the lower court erred in holding that Ballard carried her burden of demonstrating an entitlement to temporary total disability benefits from January 21,1981, to February 4, 1981.

The record amply supports the lower court’s decision on this issue. Ballard testified that the back strain she suffered at work caused her to consult Dr. Albertson. Dr. Albertson prescribed six weeks bed rest. Ballard missed work during the period the lower court found entitled her to temporary total disability benefits. This evidence sufficiently supports the lower court’s decision that an injury occurred. AFFIRMED.

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


text:
    In the matter of the ESTATE OF ROBERT E. STONE, DECEASED.
    No. 88-277.
    Submitted on Briefs Dec. 9, 1988.
    Decided Jan. 27, 1989.
    768 P.2d 334.

      David N. Niklas, C. Bruce Loble, Helena, for appellant.
    David A. Grauman, Jardine and Grauman, Whitehall, for respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal involves a dispute over fees awarded to the personal representative of an estate who was removed for cause. Petitioners Sherrie Schandelmeier and Sam Wonderly, successor co-personal representatives of the Estate of Robert Emerson Stone, appeal from an order of the District Court of the Fifth Judicial District, Madison County. On remand from a previous appeal to this Court, [223 Mont. 227, 727 P.2d 508, the District Court was instructed to remove R. Thomas Garrison as personal representative of the Estate and determine the fee due Garrison for his services. The court ordered: (1) Garrison is entitled to $20,000 for services rendered as personal representative and attorney for the Estate, and any amount previously paid to him in excess of that sum must be reimbursed; (2) Garrison is entitled to $3,814 to pay for the services of an attorney in resisting his removal as personal representative; and (3) Garrison must pay the Estate $15,000 as his contribution to lost interest and tax penalties occasioned by his administration. We reverse and remand.

Petitioners present four issues in this appeal:

1. Whether the prior personal representative and attorney for the Robert Emerson Stone Estate was entitled to combined fees of $20,000, as allowed by the District Court?

2. Whether it was proper for the District Court to allow payment of $3,814 in Estate funds to the attorney for the former personal representative for his services in the removal litigation?

3. Whether the District Court, after hearing objections to the Accounting of the prior personal representative, should have made a determination of damages to the Estate instead of merely ruling on the proper amount of attorney’s fees and personal representative’s fees?

4. If the ruling on the issue of damages was within the scope of the hearing, whether the amount of damages awarded was sufficient?

The facts of this case were discussed in our prior opinion, Matter of Estate of Stone (Mont. 1986), [223 Mont. 327,] 727 P.2d 508, 43 St.Rep. 1760. They will be reiterated here only where relevant. Our instructions on remand directed the District Court to remove Garrison and determine his fees. Once removed by the court, Garrison submitted his Final Account of all receipts and disbursements during his administration of the Estate. Petitioners filed an objection to the Final Account, objecting specifically to the fees Garrison paid himself as personal representative and attorney for the Estate, and to the fees paid to a law firm Garrison employed to defend him in the removal suit.

Petitioners contended that Garrison was not entitled to a fee, because his administration was harmful to the Estate. They also contended that Garrison’s decision to resist removal was not made in good faith, and he was therefore not entitled to pay his attorneys out of Estate funds. Garrison had paid himself a total of $26,515 for his services as personal representative and attorney for the Estate. After hearing was had on Petitioners’ objections to the Final Account, the District Court reduced that fee to $20,000, and Petitioners appealed.

The fees challenged by Petitioners are outlined by sections of the Uniform Probate Code as adopted in Montana. The personal representative’s fee is covered in § 72-3-631, MCA, which sets a maximum based on the size of the estate, and directs that in any case the fee shall be “reasonable.” Section 72-3-633, MCA, states that the fee for an attorney engaged by the estate shall not exceed IV2 times the compensation allowed the personal representative. Section 72-3-632, MCA, deals more explicitly with litigation expenses incurred by the personal representative on behalf of the estate, and allows for a “reasonable” attorney’s fee for actions maintained in good faith.

Section 72-3-634, MCA, allows any person with an interest in the estate to petition for review of fees paid to a personal representative, attorney or other person rendering services to the estate. The comments to the Uniform Probate Code written by the Code Commission state that one important feature of the UPC is that a personal representative has initial control over fees paid for services to the estate, including his own fee. Formerly, fees were set by the probate court. Because the personal representative would control the “purse strings” of the estate and essentially pay himself, the drafters of the UPC felt it important to allow for review of those fees.

This Court has not yet had the opportunity to define a standard of review for cases of this type. However, because the UPC is a uniform act, we can look to decisions from other jurisdictions utilizing the same statutory scheme.

The review of fees paid or taken by a personal representative is left to the sound discretion of the District Court. We will not overturn that decision absent a showing of abuse of discretion, and the court’s findings of fact will be upheld unless clearly erroneous. Estate of Davis (Me. 1986), 509 A.2d 1175; Matter of Estate of Baird (1984), 137 Mich.App. 634, 357 N.W.2d 912.

Once review of a fee is sought by one with an interest in the estate, the personal representative has the burden of proving that the services rendered were necessary, and the fee charged was reasonable. Baird; Matter of Estate of Vertin (N.D. 1986), 381 N.W.2d 199. With regard to legal services, a reasonable fee should be ascertained by considering the time spent, the nature of the service, and the skill and experience required. Matter of Weaver’s Estate (1982), 119 Mich.App. 796, 327 N.W.2d 366. A crucial factor for determining the reasonableness of any challenged fee is whether the services rendered were beneficial to the estate. Matter of Kjorvestad’s Estates (N.D. 1980), 287 N.W.2d 465. We agree with the view taken by the courts of the State of Michigan that when a personal representative’s negligence causes harm to the estate, he or she may be deprived of all or part of their fee. Matter of Estate of Thacker (1984), 137 Mich.App. 253, 358 N.W.2d 342.

In the present case, petitioner Sherrie Schandelmeier is one of the devisees under the will, and therefore certainly has an interest in the Estate. Petitioners’ objection to the Final Account challenged the fees taken by Garrison and those paid to his attorney, thereby requiring a review of those fees under § 72-3-634, MCA. The burden was therefore upon Garrison to show that the fees paid to himself and to his attorney were reasonable, and were for the purpose of obtaining necessary services for the Estate. The record indicates that he failed to do so.

Beyond submission of the Final Account, which merely lists the Estate’s income and expenditures, Garrison adduced virtually no evidence concerning the reasonableness of the fees. While there is some evidence from the initial removal hearing showing Garrison’s work product, he has made no attempt to show the value of those services to the Estate or their relation to the fees he took. Under cross-examination by counsel for Petitioners, Garrison testified that he kept no time logs of his activities as either personal representative or attorney for the Estate, and was able to give only a very rough estimate of the time he devoted to these tasks.

Garrison’s argument for his entitlement to the fees he charged rests on the premise that they were “the standard amounts that are allowed.” This is fundamentally incorrect. Sections 72-3-631 and 72-3-633, MCA, provide that fees for personal representatives or attorneys shall not exceed certain amounts based on the size of the estate. Garrison took not a standard fee, but the maximum fee under each section. Given Garrison’s removal for cause and his nearly complete failure to justify his fees when challenged, the record is patently insufficient to support the District Court’s award.

In our previous opinion, we held that Garrison should be removed as personal representative and attorney for the Estate because of shortcomings in the discharge of his duties:

“1. Failure to invest excess Estate monies in an interest-bearing account.

“2. Failure to pay any portion of Montana inheritance tax due when Estate monies were available to do so.

“3. Failure to file the Estate’s inventory and appraisement for over four years after his appointment as personal representative.

“4. Active misleading of a devisee concerning the disposition of the main Estate asset.”

The present record also demonstrates a remarkable failure by Garrison to complete his work properly, and a nearly complete failure to do so in a timely fashion. Simple arithmetic indicates that Garrison’s failure to invest Estate monies resulted in lost interest, and his failure to pay taxes completely or in part resulted in the imposition of penalties and the accrual of interest on unpaid amounts. These failures alone brought calculable harm to the Estate, which calls for reduction or even elimination of Garrison’s fee.

As to the fees paid to Garrison’s attorney, under § 72-3-632, MCA, such fees are to be reimbursed only if the were incurred in an action pursued in good faith. The District Court’s ruling on these fees was based on Finding of Fact No. 7, which states that Garrison was obligated to resist removal under the decedent’s will. We find no such language in the will, and hold this finding to be clearly erroneous.

R.T. Garrison was sufficiently remiss in performing his duties as personal representative and attorney for the Estate of Robert E. Stone that he was removed for cause. He failed to present meaningful evidence to justify the fees he paid himself when those fees were challenged. The fees he claimed for the services of an attorney in resisting removal were allowed on the basis of a finding of fact that is clearly erroneous. On this record, the District Court’s award of $20,000 was a manifest abuse of discretion.

The award of $15,000 to the Estate as “reimbursement” for tax penalties and interest was also inappropriate. The objection filed by Petitioners sought review of Garrison’s fee, but did not mention any liability that might be imposed for his actions. The court did not have issue jurisdiction on the question of Garrison’s liability for his actions, because that issue was not placed before the court in the pleadings. The award of “reimbursement” was therefore error. See, In re Marriage of DiPasquale (Mont. 1986), [220 Mont. 497,] 716 P.2d 223, 43 St.Rep. 557.

We reverse the decision of the District Court as clearly erroneous and an abuse of discretion, and remand for retrial of the fee dispute.

Reversed and remanded.

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