text:
    BETTY A. McCRACKEN BILLS; Darrell McCracken; David McCracken; Judy South; and Carol Ehresman, Plaintiffs and Appellants, v. HANNAH, INC., a/k/a Hannah Associates, a/k/a Hannah Era Real Estate; Elwood E. Hannah, individually and as agent for Hannah, Inc.; et al., Defendants and Respondents.
    No. 87-225.
    Submitted Nov. 30, 1987.
    Decided Feb. 9, 1988.
    749 P.2d 1076.
    Olsen, Christensen & Gannett, Damon L. Gannett and Marvin Ventrell argued, Billings, for plaintiffs and appellants.
    Emmons & Coder, Robert J. Emmons argued, Great Falls, for Smedsrud.

      Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, John Russell argued, Billings, for Hannah.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The District Court of the Thirteenth Judicial District granted summary judgment upon motion by respondents Hannah Incorporated and Conrad’s Real Estate and Insurance (Hannah and Conrad). In a memorandum accompanying the summary judgment order, the lower court held that no material questions of fact existed, and that Hannah and Conrad were entitled to summary judgment as a matter of law. Darrell and David McCracken, Betty McCracken Bills, Judy South, and Carol Ehresman, (McCrackens), appeal contending that the lower court erred by finding that no material questions of fact existed. Hannah and Conrad cross appeal contending that the statute of limitations and McCrackens’ own negligence bar all claims against Hannah and Conrad. We affirm the District Court’s decision to grant Hannah and Conrad summary judgment, and thus moot the issues presented on cross appeal.

The facts relevant to this appeal are as follows: McCrackens listed their farm for sale with Hannah. The listing contract allowed Hannah to associate with other realtors. Hannah associated with Conrad, and the two realty offices agreed to split the commission for the sale.

Conrad Realty’s agent, Smedsrud, through an acquaintance, found buyer Melcher Corporation (Melcher). Negotiations between Melcher and McCrackens commenced and resulted in offers Mc-Crackens rejected. During the negotiations with Melcher, McCrackens were represented by two lawyers and an accountant.

Melcher’s initial offers proposed that Melcher Corporation make a down payment and secure the balance of the farm’s purchase price with bonds bought on a margin loan from Melcher’s broker. In return the McCrackens were to provide Melcher with a clear deed to the farm. A provision in Melcher’s initial offers also provided that interest accruing on the bonds would first be applied to satisfy the margin loans encumbering the bonds.

Bonds purchased on margin are generally subject to margin calls by the bond broker who makes the margin loans. If the margin call is made by the broker, the purchaser of the bonds must increase the equity he or she holds in the bonds to prevent the broker from selling the bonds.

McCrackens objected to the provision providing for payment of bond interest for Melcher’s margin loans. In the offer that McCrackens accepted, the purchase price was increased and reference to payment of bond interest to satisfy margin loans was deleted. Sidney Kurth, one of the two lawyers representing McCrackens, drafted the agreement. It provided for a purchase price of $2,900,000, with a $812,000 cash down payment prior to closing. Melcher signed a promissory note for the balance of the purchase price, $2,088,000, and the bonds secured the note.

McCrackens were concerned about collateralizing the debt with bonds. Kurth’s provision on the bonds was drafted to guarantee that the bonds would have a net worth equaling the amount due on the promissory note which evidenced the balance of the purchase price. The purchase-sale agreement defined net worth of the bonds to be the difference between their fair market value and any encumbrances held against them.

Although the agreement neither prohibited nor allowed margin encumbrances, evidence indicated that McCrackens assumed that the bonds would not be subject to sales by Melcher’s broker because of margin calls. McCrackens agreed that they would look only to the bonds in the event that Melcher defaulted on the note.

McCrackens closed the deal with Melcher on December 20, 1979. Shortly after closing, Sidney Kurth went to Los Angeles to inspect the bonds Melcher had promised to place in escrow. However, Kurth failed to personally inspect the bonds, and deposition statements indicated that the bonds were not in place during Kurth’s visit to Los Angeles. Depositions also indicated that had Kurth properly inspected the account Melcher had opened for the bonds, he would have discovered that they provided inadequate security because of the margin loans.

Sometime in the spring of 1980, Kurth discovered that the bonds were held on margin. Meanwhile, the bonds became subject to “margin calls”, i.e., the bond broker was authorized to sell the bonds to satisfy Melcher’s margin debt. By December 27, 1982, margin sales had liquidated the bonds. McCrackens received $421,391.04 for their security interest in the bonds.

David and Darrell McCracken, and Betty McCracken Bills, sued their attorney, Sidney Kurth. The other “McCrackens”, Carol Ehresman and Judy South, sued the lawyer they had hired, Gregory Munro. Betty, David, and Darrell settled the suit with Kurth for $500,000. Carol and Judy settled with Munro for $144,000. MeCrackens also have a suit pending against Melcher, and a suit pending against their accountant.

McCrackens allege that Hannah and Conrad should have informed them that the bonds provided inadequate collateral. The basis for this allegation is a statement from H.C. Jordan, Chairman of the Board of Sabre Farms Incorporated (Sabre).

Jordan’s statement concerns an offer by Melcher to purchase property owned by Sabre prior to the land sale at issue in this case. According to Jordan, Sabre rejected the offer because Melcher proposed to secure the debt owed on the Sabre land with bonds purchased on a margin. McCrackens contend that Smedsrud’s alleged knowledge of the deal with Sabre creates a material question of fact in regard to a breach of the duty owed to McCrackens by Hannah and Conrad. Hannah and Conrad deny that Smedsrud knew why Sabre rejected the offer, and contend that even if Smedsrud did know why Sabre refused to sell to Melcher, this knowledge fails to create a material question of fact.

The District Court, facing the argument about the Sabre offer, stated:

“it is impossible to see how his not telling Plaintiffs what they and their counsel already knew and their accountant already had attempted to explain to them can make him liable for their injuries in this case.”

We agree with the District Court.

A realtor has an affirmative duty to disclose all material facts to the seller. See Ellingson Agency v. Baltrusch (Mont. 1987), [228 Mont. 360,] 742 P.2d 1009, 1013, 44 St.Rep. 1598, 1603. However, a realtor has no duty to disclose what the seller already knows. See Mallory v. Watt (1979), 100 Idaho 119, 594 P.2d 629, 632-33. In this case, McCrackens and their attorneys already knew from Melcher’s initial proposals that Melcher offered to secure the balance of the purchase price for property with bonds encumbered by margin loans. Jordan’s statement as to Hannah and Conrad’s knowledge of the existence of a similar offer made by Melcher to Sabre adds nothing material to the facts relevant to Hannah and Conrad’s duty to disclose. Other than Jordan’s statement, there is no evidence to indicate that Hannah and Conrad knew or should have known that the bonds were on margin.

Under Rule 56(c), M.R.Civ.P., summary judgment may be granted where the party opposing the motion fails to “raise or to demonstrate the existence of the genuine issue as to any material fact or demonstrate that the legal issue should not be determined in favor of the movant.” Palin v. Gebert Logging (Mont. 1986), [220 Mont. 405] 716 P.2d 200, 202, 43 St.Rep. 481, 483. McCrackens failed to raise the existence of the genuine issue as to any material fact in regard to Hannah and Conrad’s breach of duty. Thus we affirm.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    In re the MARRIAGE OF ROSEMARY HAGEMO, Petitioner and Respondent, and GARY THEODORE HAGEMO, Respondent and Appellant.
    No. 87-351.
    Submitted on Briefs Dec. 31, 1987.
    Decided Feb. 9, 1988.
    Rehearing Denied March 4, 1988.
    749 P.2d 1079.

      Gough, Shanahan, Johnson & Waterman, Alan L. Joscelyn, Helena, Wendell B. Dunn, Whitefish, for respondent and appellant.
    Knight, Dahood, McLean & Everett, David M. McLean, Anaconda, for petitioner and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The District Court of the Third Judicial District, Deer Lodge County, Montana, entered judgment on April 2, 1987 further modifying a property settlement agreement, which the parties already had modified on June 24, 1983. Gary Hagemo (hereinafter husband) argues that the court’s modification, which granted Rosemary Hagemo (hereinafter wife) maintenance of $250 per month and increased husband’s child support obligation from $300 to $500 per month for each of two children, is improper since the couple had modified their agreement to do away with his maintenance obligation. He cites Section 40-4-208, MCA, as requiring that wife petition for modification within two years. He further argues that the court abused its discretion by failing to provide appropriate findings of fact to bolster its conclusions of law and by accepting the wife’s proposed findings and conclusions in toto and verbatim.

We affirm the District Court.

The couple’s marriage was dissolved in February, 1983. By terms of the initial settlement agreement incorporated by the dissolution decree wife received custody of the parties’ two children and $250 per month per child in support. She also was to receive one-half the proceeds from the sale of the family home plus an amount sufficient to resume her teacher’s retirement. From the month after the family home sold until wife took a teaching job in the Anaconda school system, which the parties assumed would be by September, 1984, she was to receive $500 per month in maintenance.

Husband is a locomotive engineer for Burlington Northern. His gross earnings from tax year 1986 were $53,126.80. Wife had taught in the Anaconda schools for four years before this marriage. Her testimony was that had she been hired as a teacher she would have earned $22,000 for the 1986-87 term. Because she has not been able to find a teaching job she works as a receptionist and earned $10,539.14 in 1986.

In June, 1983, the family home was sold leaving the parties with net proceeds of $19,122.01. The parties modified the settlement agreement so that wife was to receive $20,000 in payment in lieu of periodic maintenance. Thus, she received the total proceeds from the home sale, and husband’s monthly child-support obligation was raised from $500 to $600 eight months earlier than in the original schedule. The remaining $77.99 was to be paid as the parties determined. Again it appears that the parties envisioned wife would be teaching when the 1984 school year began.

On January 26, 1987, more than three years after the parties had modified the agreement, wife petitioned the District Court to enter another modification. She said that changes in circumstances had occurred, namely that she had been unable to find a teaching job despite “diligent efforts” forcing her to take jobs paying substantially less. Her monthly expenses exceeded her monthly income and she sought maintenance. Meanwhile, she claimed, husband had bought lake property, motorcycles, all terrain vehicles, automobiles, and a share in an airplane and had taken vacations. This, she said, meant that the level of child support was inadequate.

Husband’s first argument is that the wife’s petition for modification was not timely under Section 40-4-208, MCA:

“(2) (a) Whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification . . . may only be made within 2 years of the date of the decree.
“(b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification . . . may only be made:
“(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; . . .”

This argument is not persuasive since both the original agreement and the parties’ modified agreement spoke to maintenance and both explicitly provided for certain levels of child support. Thus, they are not subject to the two-year limitations of Section 40-4-208(2)(a), MCA, but rather are subject to modification at any time upon a showing of substantial and continuing change of circumstance. Section 40-4-208(2) (b), MCA.

Husband’s argument is that as of January, 1987, he was not making monthly maintenance payments, thus they were forgiven, and cannot be resumed at this late date. However, the mere fact that a party is not currently paying maintenance does not necessarily preclude modification. See, Fraunhofer v. Price (1979), 182 Mont. 7, 19, 594 P.2d 324, 331; In re the Marriage of Rush (Mont. 1985), [215 Mont. 498,] 699 P.2d 65, 66-7, 42 St.Rep. 581, 583. The fact that one party has satisfied his maintenance obligations to the other party must be considered by the District Court when it determines whether modification is justified since the amount and duration of maintenance payments are frequently bargained. Marriage of Rush, 699 P.2d at 67.

Husband relies on In re the Marriage of Cooper (Mont. 1985), [216 Mont. 34,] 699 P.2d 1044, 42 St.Rep. 619, for his contention that wife was barred from seeking modification after the two years. That case does not control because there the District Court was asked by the wife to make a determination of the proper rate of maintenance. It held that wife was entitled to none, thus deleting the maintenance provision entirely. Marriage of Cooper, 699 P.2d at 1046. Here, the initial modification was by agreement of the parties.

Whether the change in circumstances was so substantial and continuing as to be unconscionable is primarily a question for the District Court. This Court has not defined the term unconscionable as it is used in Section 40-4-208(2)(b)(i), MCA; its interpretation relies on case by case scrutiny of the underlying facts. In re the Marriage of McNeff (Mont. 1983), [207 Mont. 297,] 673 P.2d 473, 475, 40 St.Rep. 2050, 2052. The facts in this case are consistent with those factors set forth in Sections 40-4-203 and 40-4-204, MCA. Award of maintenance is proper if: (1) the party seeking maintenance lacks sufficient property to provide for his or her needs, and (2) the party is unable to support himself or herself through appropriate employment. In re the Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 955, 44 St.Rep. 1167, 1171-72. The court found that the agreements made by the parties were based on the assumption that wife would have found a teaching job by September, 1984 but that she had been unsuccessful in job searches for four years straight. This, coupled with husband’s higher earnings represents the required changes of circumstances.

The District Court adopted the wife’s proposed findings totally and completely to the exclusion of the husband’s proposed findings. The record shows two sets of proposed findings with the notation on the wife’s that it had been “adopted by the court” and signed by the judge. Husband claims there is insufficient evidence to justify adopting wife’s findings and that this is an abuse of discretion. It is preferred that the District Court consider the proposed findings of both parties and then prepare its own findings. By doing so, the court demonstrates its conscientious concern and exercises its independent judgment, which provides this Court with a better basis for review. See, Tomaskie v. Tomaskie (Mont. 1981), [_ Mont _,] 625 P.2d 536, 538-39, 38 St.Rep. 416, 419; Marriage of Watson, 739 P.2d at 954. Among the findings of fact the court adopted from the wife were:

“25. The Court notes that the husband is driving a 1986 Audi automobile, that he owns a 1973 boat, a 25% interest in an airplane, he possesses a T.V. satellite that requires a $1,000.00 annual payment; that he rents a hangar for his airplane, and is spending over $2,000.00 this year for overhaul on the airplane.
“26. The evidence presented at the trial demonstrates that the wife and two children of the marriage are attempting to meet the necessary obligations of life on approximately $1,210.00 per month. On the other hand, the husband has approximately $2,750.00 for meeting living expenses which include luxury items such as airplanes, boats, T.V. satellites and paying rent on a home that he is not living in.
“27. The wife testified at the trial that in order to meet the necessary living expenses for herself and the children she will require a payment of $250.00 per month alimony and will require that the child support for each child be raised from $300.00 per month to $500.00 per month ...”

Among the conclusions of law adopted were:

“3. There was a showing of change of circumstances that was substantial and continuing so as to make the terms of the original decree of divorce and property settlement agreements unconscionable.
“4. The standard of living of the children has been substantially reduced below that which would have existed had this marriage continued but that the standard of living of the husband has not diminished to a like degree.”

We have developed a test for determining the validity of findings adopted from one party:

“[W]here, as here, findings and conclusions are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and are supported by the evidence, they will not be overturned simply because the court relied upon proposed findings and conclusions submitted by counsel.”

Kowis v. Kowis (1983), 202 Mont. 371, 379, 658 P.2d 1084, 1088. Error occurs when the court relies on one party’s proposed findings instead of its own consideration of the facts and exercise of its independent judgment. In re the Marriage of Alt (Mont. 1985), [218 Mont. 327,] 708 P.2d 258, 262, 42 St.Rep. 1621, 1626. The District Court heard the testimony of both parties and examined the exhibits placed into evidence. Because there is sufficient evidence within the record to support the wife’s findings and conclusions, the court did not abuse its discretion in adopting them. In re the Marriage of Hammill (Mont. 1987), [225 Mont. 263,] 732 P.2d 403, 408, 44 St.Rep. 220, 225. Therefore, we will not reverse.

We note lastly that the husband appeals the court’s determination that he was technically in contempt of court for defying a District Court order that purportedly requires him not to share the premises with female companions overnight when he has custody of the children. We cannot review this question, however, since the record fails to include the text of this order. Rule 9(b), M.R.App.P. We would note, however, that providing there is such an order, husband has not been prejudiced since the court, in its discretion, did not punish him for this contempt, but merely issued a warning.

Affirmed.

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


author: MR. JUSTICE McDONOUGH

text:
    PHILLIP R. MORROW, d/b/a Morrow Mechanical Contractors, Plaintiff and Appellant, v. FBS INSURANCE MONTANA — HOINESS LABAR, INC., Defendant and Respondent.
    No. 87-370.
    Submitted on Briefs Nov. 6, 1987.
    Decided Feb. 9, 1988.
    Rehearing Denied March 4, 1988.
    749 P.2d 1073.

      Holland & Hart, James M. Ragain, Billings, for plaintiff and appellant.
    Moulton, Bellingham, Longo & Mather, Gerald B. Murphy, Billings, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The Thirteenth Judicial District Court granted the respondent’s motion for summary judgment. The issue here is whether the lower court, in granting summary judgment, erred in finding that there were no material questions of fact. We reverse on this issue and remand the cause for trial.

Appellant Morrow, a subcontractor, alleged that respondent FBS Insurance Montana-Hoiness LaBar, Inc., (FBS), a construction bonding agent, intentionally interfered with Morrow’s prospective economic advantage. The economic advantage allegedly jeopardized by FBS’s conduct was the award of a subcontract offered by a general contractor, Fisher Construction, Inc., (Fisher), for work on the construction of a water plant. Morrow claims FBS used its influence as Fisher’s bonding agent to prevent Fisher from accepting Morrow’s subcontract bid.

Prior to bidding as the general contractor for construction of the water plant, Fisher solicited bids from several subcontractors for the mechanical portion of the facility. Morrow and Star Service, Inc., (Star), bid lower than the other mechanical subcontractors bidding the job.

After narrowing its selection to Morrow and Star, Fisher met with the two subcontractors to discuss ways to cut costs on the subcontract. Shortly after this meeting Fisher awarded the subcontract to Star.

Dan Fisher, head of Fisher Construction, stated in his deposition that Star received the contract because it bid lower than Morrow. Alf Hulteng, the Fisher employee in charge of analyzing the two bids, stated in his deposition that Morrow’s bid may have been lower than Star’s bid because it included portions of the subcontract not covered by Star. Thus, the record fails to resolve which bid was initially lower. Morrow alleges that after the meeting to cut costs on the project, Star reduced its bid to match his bid.

The record also reveals a conflict as to a “back bonding” requirement for the mechanical subcontractor on the project. Deposition testimony by Fisher and FBS employees shows that FBS contemplated a performance bond from the major subcontractors back to the general contractor to guarantee that the subcontracting work stayed within the amount bid. The depositions also show that all the parties were aware that Morrow would have difficulty obtaining a back bond, and that FBS would not provide a back bond to Morrow. However, the record does not resolve when Fisher actually communicated to the subcontractors that a back bond would be required. Star eventually did obtain a bond to guarantee its subcontract work on the project, but the bond was executed in June, long after the award of the subcontract to Star, and the bond itself was back dated from the date of actual execution.

Morrow alleges that but for the conduct of FBS, he would have received the contract. To support this allegation, Morrow stated that Fisher employees Dan Fisher and Alf Hulteng told him that FBS pressure prevented Fisher from awarding him the subcontract. Morrow also points to the ambiguities concerning the back bonding requirement and the question of the low bid to discredit Fisher’s explanation that Star received the subcontract because they bid lower than Morrow.

According to Phillip Morrow’s wife and business associate, Donna Morrow, FBS’s apparent motive for allegedly pressuring Fisher was a “soured business relationship” between Morrow and FBS. Donna Morrow also stated in her deposition that Alf Hulteng informed her that FBS employee Kip Vandeventer disliked the Morrows.

The soured business relationship between FBS and Morrow apparently resulted from a payment made by FBS as Morrow’s bonding agent on another job. This payment apparently resulted in FBS’s inability to back bond Morrow’s work on the construction project at issue in this case. Deposition statements also showed that a bonding agent such as FBS could exert considerable pressure on a general contractor like Fisher.

In its decision to grant summary judgment on the intentional interference claim, the District Court found, “Mostly this case is plaintiffs words against defendants’ words.” Also in regard to words against words, the District Court found that “all the testimonial evidence other than that from plaintiff and his wife, deny plaintiffs version of the pertinent occurrences.” With the above stated facts and findings in mind, we will proceed to analyze Morrow’s objection to the lower court’s grant of summary judgment.

ISSUE

Whether the District Court properly found that no material facts existed, and that FBS was entitled to summary judgment as a matter of law.

According to this Court’s interpretations of Rule 56(c), M.R.Civ.P., “[t]he party moving for summary judgment has the initial burden of showing that there is no genuine issue as to any fact deemed material in light of the substantive principles that entitled the movant to judgment as a matter of law.” Fleming v. Fleming Farms, Inc. (Mont. 1986), [221 Mont. 237,] 717 P.2d 1103, 1105-06, 43 St.Rep. 776, 779. And, all “reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing summary judgment.” Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

Morrow asserts that in applying this rule, the lower court ignored the material fact questions created by the conflicting affidavits and depositions of the parties. In support of this argument, Morrow cites Section 26-1-301, MCA, which provides:

“One witness sufficient to prove a fact. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason.”

We agree with Morrow’s argument.

Other Courts have emphasized the impropriety of granting summary judgment where the credibility of an affiant may be crucial to decision of a material fact. See Durant v. Stahlin (Mich. 1965), 135 N.W.2d 392, 398; Arnstein v. Porter (2d Cir. 1946), 154 F.2d 464, 469-70. In Arnstein, the material question of fact depended on contradictory allegations in the depositions of the parties. Arnstein, 154 F.2d at 469. In reviewing the lower court’s grant of summary judgment, the Court stated:

“[W]here, as here, credibility, including that of the defendant, is crucial, summary judgment becomes improper and a trial indispensable. It will not do, in such a case, to say that, since the plaintiff, in the matter presented by his affidavits, has offered nothing which discredits the honesty of the defendant, the latter’s deposition must be accepted as true. We think that Rule 56 was not designed thus to foreclose plaintiff’s privilege of examining defendant at a trial, especially as to matters peculiarly within defendant’s knowledge.”

Arnstein, 154 F.2d at 471.

Drawing all reasonable inferences in favor of Morrow’s offered proof, application of Arnstein’s interpretation of Rule 56 is appropriate here because the issues presented by the offered proof generally involve witness credibility. For example:

(1) Dan Fisher stated that Star received the subcontract because they were the low bidder. Phillip Morrow stated that Dan Fisher told him Star received the subcontract because of pressure by FBS. Morrow’s version of events is backed by Alf Hulteng’s ambiguous statements as to who was the low bidder.

(2) Alf Hulteng stated that pressure from FBS did not influence Fisher’s decision to select Star over Morrow. Morrow stated that Hulteng told him that Star received the contract because of pressure from FBS.

(3) Donna Morrow stated that a sour business relationship existed between the parties. Kip Vandeventer, the FBS employee working with Fisher at the time of the bids, denied the existence of animosity between the parties.

Drawing all reasonable inferences in favor of the statements made by the Morrows, we cannot say that there exists no question of material fact. The question presented by the contradictory statements goes to the heart of Morrow’s claim, i.e., did FBS pressure Fisher into awarding the subcontract to Star? Dan Fisher’s statement that Star was the low bidder conflicts with statements made by Alf Hulteng, the Fisher employee who actually analyzed the bids. Under these circumstances, FBS has failed to carry the movant’s initial burden of showing the absence of material facts in light of the substantive principles that entitled the movant to judgment as a matter of law.

However, FBS argues that even if pressure existed, Morrow failed to produce evidence sufficient to show:

(1) that FBS intended to harm Morrow by such pressure;

(2) that the pressure was improper;

(3) that but for the pressure Morrow would have received the contract. FBS argues that Morrow must come forward with proof creating a material question of fact on these issues to maintain an action for intentional interference with prospective economic advantage.

The lower court set out the elements for the intentional interference with prospective economic advantage for this case as follows:

(1) That FBS intentionally and willfully acted;

(2) In a manner calculated to cause damage to plaintiff and plaintiff’s business;

(3) Which acts were done with the unlawful purpose of causing damage or loss to plaintiff without right or justification and;

(4) From which acts plaintiff actually suffered damage or loss. We agree with the lower court’s analysis in this regard. See Bolz v. Myers (1982), 200 Mont. 286, 295, 651 P.2d 606, 611. However, drawing all reasonable inferences in favor of Morrow, Morrow’s affidavits and deposition statements raise a material question of fact under the substantive principles of law involved.

First, as to whether or not FBS acted intentionally, Morrow stated that FBS put pressure on Fisher. There is no evidence in the record to indicate that the alleged pressure was accidental. Morrow’s statement, and the statements allegedly made by Fisher employees as to why Star received the contract, are allegations which by their very nature implicate intentional conduct on the part of FBS.

Second, as to whether or not the interference was “improper” under Montana law, an inference may be drawn from Morrow’s allegations that FBS pressured Fisher to award the contract to Star to make sure that the subcontractor receiving the bid could be back bonded with FBS. We cannot say that interference motivated to gain business advantage among the relationships between bonding agents, general contractors, and subcontractors is necessarily proper. And when there is

“room for different views, the determination of whether the interference was improper or not is ordinarily left to the jury, to obtain its common feel for the state of community mores and for the manner in which they would operate upon the facts in question.”

Restatement (Second) of Torts Section 767 at 38-39 (1977).

Finally, in regard to whether or not an inference could be drawn that the pressure caused damage to Morrow, we need only point out that Fisher narrowed its choice of subcontractors to Star and Morrow. The allegation made by Morrow is that but for FBS’s improper pressure, he would have received the contract. Under these circumstances, an inference may certainly be drawn that Fisher’s choice of Star over Morrow damaged Morrow.

For the foregoing reasons we overturn the lower court’s grant of summary judgment and remand.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, CITY OF BOZEMAN, Plaintiff and Respondent, v. CLIFTON DUANE HETH, Defendant and Appellant.
    No. 87-382.
    Submitted on Briefs Dec. 17, 1987.
    Decided Feb. 9, 1988.
    750 P.2d 103.
    Jerry Bechhold, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Bruce Becker, City Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District Court, Gallatin County. Defendant/appellant, Clifton Duane Heth (Heth) was found guilty by the District Court of driving under the influence of intoxicants (DUI) as outlined in the court’s findings of fact and conclusions of law on May 29, 1987. From this ruling Heth appeals.

We affirm.

The only issue is as follows:

Did the District Court err in not granting Heth’s motion to dismiss based upon his argument that police officers have a responsibility to obtain and preserve exculpatory evidence if they have an opportunity to do so?

This appeal arose out of the conviction of Heth by the District Court sitting without a jury. On October 30,1986, Heth was arrested for driving under the influence pursuant to Section 61-8-401, MCA, after being removed from the 4Bs Restaurant (4Bs) in Bozeman, Montana. Appellant Heth incorporated the findings of facts of the District Court on this appeal and therefore we will accept that rendition of facts.

Three 4Bs waitresses saw Heth at the restaurant on the night of October 30, 1986. They were subpoenaed to testify at the District Court hearing but no transcript was submitted on this appeal. According to one of the waitresses Heth was “[yjelling in a loud manner and attracted attention to himself.” One of the waitresses knew Heth was not to be in the restaurant due to previous misconduct and she telephoned the police. This same waitress also believed Heth was intoxicated because he slurred his words and had difficulty maintaining his balance. All three waitresses believed Heth was intoxicated according to the findings of fact of the District Court.

Officers Kerry Bickle and David Krogstad requested that Heth leave the 4Bs. At that point, Bickle began recording Heth’s conversation. After an argument with the police officers, Heth left the 4Bs indicating he would walk home, leaving his vehicle.

Officer Bickle returned to the 4Bs parking lot shortly thereafter and noticed Heth’s vehicle traveling north on 5th Street. The officer noted that Heth’s vehicle crossed the center line of the street a number of times and at one intersection, Heth failed to yield to an oncoming vehicle as he made a left turn. The officer stopped Heth and requested him to perform a number of field sobriety tests which Heth completed in an unsatisfactory manner. Conversations during this testing were again taped by Bickle.

Heth was arrested for DUI, read his Miranda rights, and taken to the Gallatin County Detention Center for processing. Heth, after reading the implied consent form, refused to take a blood test to determine his blood alcohol content. Thereafter, one of the officers activated a videotape machine to film Heth’s activities but failed to turn on the volume and therefore no sound was recorded.

Heth claims he was denied due process because the tape may have contained exculpatory evidence showing that he did not have slurred speech. The District Court concluded that Heth was guilty of DUI based on the testimony of the waitresses and officers and because Heth was seen driving his vehicle after leaving the 4Bs.

The State offered the audio cassette recorded by Bickle which was admitted by the court over defense counsel’s objection. The State also offered the video but it was refused by the District Court after objections by defense counsel.

Heth’s counsel relies on the case of State v. Swanson (Mont. 1986), [22 Mont. 357,] 722 P.2d 1155, 43 St.Rep. 1329, for the proposition that “[pjolice have a responsibility to properly administer exculpatory evidence when they have an opportunity to do so.” Heth’s counsel argues that Heth was denied use of evidence which is generally available to both sides because of the Bozeman Police Department’s policy of using video tapes. Heth claims:

“But for the Police’s failure to properly administer the video, the Appellant would have had sound to said video and thus allowed him to present a valid defense to the charge of drunk driving. With the sound to the video, the Appellant could have shown that he did not have slurred speech. Further, the sound would have tended to establish the Appellant’s sobriety and his anger with respect to the way the Police were handling him. The sound would have established the rudeness in which the Police treated the Appellant. Though Police rudeness is not a defense in this case, the video would show reasons for Appellant’s response.”

On the audio tape recording of the sobriety tests, Heth could not count from 90 to 100 and back to 87 correctly. He also had difficulty reciting the alphabet. The findings show when requested to stand with his left foot in front of his right, Heth stood with his right foot in front of his left. Heth also had difficulty with the Rhomberg test (feet together, head back, eyes closed, used to judge equilibrium) and did not complete a one-legged stand test.

It is clear that Swanson, supra, does not support the proposition which Heth’s counsel asserts. Swanson involved the negligent handling by the police officers of a defendant’s blood sample that was left unrefrigerated for two days. Under Montana law, defendants have a statutory right to request separate blood testing to obtain exculpatory evidence.

“The person tested may, at his own expense, have a physician or registered nurse of his own choosing administer a test, in addition to any administered at the direction of a peace officer, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath, or urine.” Section 61-8-405(2), MCA.

There is no question that Swanson stands for the proposition that an accused has a constitutional right to attempt to obtain exculpatory evidence. Swanson, supra, 722 P.2d at 1157. However, the case does not stand for the proposition that police officers have to assist in the gathering of such evidence.

Heth argues that police officers have a responsibility to properly administer exculpatory evidence when they have an opportunity to do so. However, there is a difference between “gathering” and “preserving” such evidence. State v. Hayes (1985), 108 Idaho 556, 700 P.2d 959, 964.

The officers in Swanson failed to properly preserve the blood sample taken from the accused.

“[0]nce the sample was taken from Swanson, the police had a duty to see to its safekeeping . . . [The] careless handling of the sample deprived Swanson of his due process right to gather possible exculpatory evidence.”

Swanson, 722 P.2d at 1158.

Heth contends the police in essence were required to gather evidence showing that he was not intoxicated by engaging the audio on the video tape. There is no question that police officers must allow a defendant to obtain a separate and independent blood test. But Swanson is limited to the actual blood test which is mandated by statute.

“[P]olice officers are not required to take the initiative or even to assist in procuring any evidence on behalf of a defendant which is deemed necessary to his defense. [Citations omitted.] But in no event can duly constituted authority hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood, without denying to him due process of law. We are persuaded to such conclusion in any instance where the conduct of the authorities, whether through affirmative action or by the imposition of their rules and regulations, imposes any material obstacle in the path of the accused. Nor are we impressed that an accused, as perhaps in the instant case, might have reached his goal by pursuing a different course . . .

“While the police have no duty to assist an accused in obtaining independent evidence of sobriety, they cannot frustrate such an effort through either affirmative acts or their rules and regulations.”

Swanson, 722 P.2d 1157-1158.

Only a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process. To amount to a denial of due process, negligently suppressed evidence must be vital to the defense. It must be more than a mere suppression, in that the defense must show the evidence was material and of substantial use. Finally, the evidence must be exculpatory meaning it “[w]ould have tended to clear the accused of guilt, to vitiate a conviction.” Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; State v. Patterson (1983), 203 Mont. 509, 512-513, 662 P.2d 291, 293. Heth has not shown that the video sound was vital to his defense especially in light of the audio tape that Bickle recorded. The tape made by Bickle does not provide Heth with any exculpating evidence. Although the video’s audio may have been substantially used by defense counsel, we cannot agree that it would have been exculpatory.

The administration of a video and audio test, just as in Hayes, supra, falls into the category of gathering evidence. Police officers do not have an affirmative duty to search out favorable evidence for the defendant as the State has appropriately pointed out. State v. Ames (1985), 109 Idaho 373, 707 P.2d 484, 486; People v. Moore (Colo. App. 1985), 701 P.2d 1249, 1254.

The defendant was not denied due process under Brady or Swanson. Police officers may not frustrate or hamper a defendant’s right to obtain exculpatory evidence but they have no affirmative duty to gather such evidence absent express statutory mandate.

Affirmed.

MR. JUSTICES HARRISON, HUNT, SHEEHY and McDON-OUGH concur.


author: MR. JUSTICE HARRISON MR. JUSTICE GULBRANDSON,

text:
    ELAINE A. SEDLACK, Claimant and Appellant, v. BIGFORK CONVALESCENT CENTER, Employer, and Church Mutual Insurance, Defendant and Respondent.
    No. 87-168.
    Submitted Nov. 30, 1987.
    Decided Feb. 10, 1988.
    749 P.2d 1085.

      Trieweiler Law Firm, Terry N. Trieweiler argued, Whitefish, for claimant and appellant.
    Keller, Reynolds, Drake, Sternhagen & Johnson, G. Curtis Drake argued, Helena, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Elaine Sedlack, a registered nurse, appeals the Workers’ Compensation Court’s judgment denying her permanent partial disability benefits under Section 39-71-703, MCA (1983). We reverse the judgment and remand the matter to the Workers’ Compensation Court.

Sedlack worked four days per week at the Bigfork Convalescent Center in January, 1983; she chose not to work a full five-day work week. On January 14, 1983 she injured her back when she jumped away from a patient who tried to kick her. She saw a doctor about the injury and was told to rest her back. She got one week’s worth of bedrest before returning to work at the convalescent center. She earned $8.05 per hour at the time she was injured. She continued to work at the convalescent center until January 1984, when she resigned so she could accept a job with the Flathead County Health Department as a nurse who visits homebound patients. In May, 1986, she earned $8.50 per hour in the new job and she would have liked to work a five-day work week because of the number of cases.

Dr. George Ingham, an orthopedic surgeon, is treating her for her back injury, which he initially thought was an early onset of sciatica. When Sedlack’s back pain flared in September, 1985, he ordered her to rest up. She did not work from September 23, 1985 to October 8, 1985, during which time the respondents paid temporary total disability benefits. Dr. Ingham advised Sedlack after this spell that she should not work more than four days per week. On March 13, 1986, Sedlack filed for permanent partial disability benefits of $102.78 per week for 500 weeks under Section 39-71-703, MCA. The parties later agreed that $110.72 per week was the proper disability rate. Dr. James Burton, also an orthopedic surgeon, examined Sedlack for the respondents. He testified via deposition that he believes Sedlack is suffering nerve damage from a slipped disk. Dr. Ingham testified by deposition that he believes the problem is degenerative disk disease compounded by the injury. Neither doctor submitted an impairment rating.

Norm Johnson, a Job Service counselor, also testified via deposition on behalf of Sedlack. He said the injury has reduced the percentage of jobs she could compete for in Flathead County from 53 percent to 17 percent, a 68 percent reduction. He conceded, however, that he did not foresee that Sedlack would have to settle for a job paying less than her current situation.

On May 21, 1986 a hearings officer heard testimony in the case. He subsequently filed “findings of facts and conclusions of law” that the Workers’ Compensation Court adopted on March 6, 1987. However, the hearings officer did not make findings of fact, he only recited the testimony that had been presented. Thus, we have at least three possible “findings” as to the nature of the injury:

“11. Dr. Ingham’s initial impression was that the claimant had early sciatica.
“17. Dr. James R. Burton . . . told her he thought she had a slipped disk that was pressing on the ligaments causing them to go into spasm and affecting the nerves . . .
“18. Her treating physician, Dr. Ingham, diagnosed her condition as being a combination of degenerative disk disease and the industrial injury . . .”

But we do not have an indication that one of these is to be accepted to the exclusion of the other two. Although it is vital that findings of fact be based on the evidence presented, it is equally crucial that the findings be consistent and support the same conclusions of law. Rules 52(a), 53(e), M.R.Civ.P. These recitals of testimony fail that requirement.

In the conclusions of law, the hearings officer stated:

“The claimant did establish that she suffered an injury arising and occurring in the course of her employment with the Bigfork Convalescent Center. The claim was accepted as compensable by the defendant Church Mutual Insurance Company who paid temporary total disability benefits from September 23, 1985 through October 8, 1985. There is no dispute that the claimant is as far restored as the permanent character of her injuries will permit. However, she has not proven by a preponderance of the credible evidence that she has an actual loss of earnings to support an award of permanent partial disability benefits under Section 39-71-703, MCA. No evidence was presented as to the wage being paid the position she held with the Bigfork Convalescent Center as found necessary in McDanold v. B.N. Transport, Inc., [208] Mont. [482,] 679 P.2d 1188 (1984).
“The trial in this case was held approximately one month prior to the Montana Supreme Court decision of Dunn v. Champion International Corporation, [222 Mont. 142, 720 P.2d 1186.] 43 St.Rep. 1124 (1986) which held that a claimant in similar circumstances was not entitled to permanent partial disability benefits as an actual loss of earnings when in fact she was able to earn as much or more than she was earning at the time of the injury.” (Emphasis added.) Thus, the Workers’ Compensation Court entered judgment denying Sedlack permanent partial disability benefits on March 6, 1987.

Sedlack presents two issues on appeal: Does Section 39-71-703, MCA, require her to prove an actual wage loss or only a reduction in her earning capacity? Is there substantial evidence to support the Workers’ Compensation Court’s conclusion that she had sustained no permanent partial disability when she had proven she was capable of working five days a week before the injury, but restricted to four days of work each week after the injury?

The respondents, in turn, argue that the judgment should be affirmed since there was sufficient credible evidence to support the Workers’ Compensation Court’s conclusion that Sedlack had not suffered a wage loss. Resolution of Sedlack’s first issue is dispositive of this case.

Section 39-71-703(1), MCA, as it read before its amendment in 1987, controls since Sedlack’s injury occurred in 1983. See, Buckman v. Montana Deaconess Hospital (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 382, 43 St.Rep. 2216, 2218. That section provided:

“(1) Weekly compensation benefits for injury producing partial disability shall be 66%% of the actual diminution in the worker’s earning capacity measured in dollars, subject to a maximum weekly compensation of one-half the state’s average weekly wage . . .” (Emphasis added.)

This Court defined impairment of earning capacity in a personal injury context as “the permanent diminution of the ability to earn money in the future.” Thomas v. Whiteside (1966), 148 Mont. 394, 397, 421 P.2d 449, 451. Earning capacity is not determined by comparing pre-injury wages with post-injury wages; it includes factors of age, occupation, skills and education, previous health, number of productive years remaining, and degree of physical or mental impairment. Thomas, 421 P.2d at 451.

The correct test for loss of earning capacity, cited time and again, is whether the industrial accident has caused “a loss of ability to earn in the open labor market.” Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211, 213-14, 259 P.2d 340, 342; Fermo v. Superline Products (1978) 175 Mont. 345, 348, 574 P.2d 251, 253; Hafer v. Anaconda Aluminum Co. (1982), 198 Mont. 105, 109-10, 643 P.2d 1192, 1195, aff’d on remand 684 P.2d 1114, 41 St.Rep. 1403; Dunn v. Champion International Corp. (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 1189, 43 St.Rep. 1124, 1128. Under this test, even the injured worker who earns more after his injury is eligible for permanent partial disability if certain conditions are met. Fermo, 574 P.2d at 254; Hafer, 643 P.2d at 1195-96.

In Fermo, we noted that while claimant was earning more money after his injury, he also was suffering great pain that detracted from the speed and efficiency of his work. Claimant in that case worked as a loader of trucks and had suffered an injury to his wrist. He was further hindered because he was forced to compete against younger and healthier persons for the available work. Fermo, 574 P.2d at 253. We affirmed an award of compensation under 92-703.1, R.C.M. (1947), (later Section 39-71-703(1), MCA) since there had been a loss of capacity to perform his work and a loss of the ability to compete in the open labor market.

Respondents in the case at bar contend that because Sedlack was earning as much, if not more, after the accident, there was no credible evidence of lost earning capacity thus restricting her to indemnity benefits found in Sections 39-71-705 through 39-71-708, MCA. They argue that Section 39-71-703, MCA, was intended to compensate the injured worker for actual, present loss of earning capacity, while Section 39-71-705, MCA, was intended to compensate injured workers for possible future loss to their earning capacity. The respondents misunderstand the statutes and this Court’s decisions concerning them.

In McDanold v. B.N. Transport, Inc. (Mont. 1984), [208 Mont. 470,] 679 P.2d 1188, 41 St.Rep. 472, a truck driver suffered an ankle injury that prevented his return to work as a truck driver so he took a job at a liquor store. We held in that case that the claim could be filed under either Section 39-71-703, MCA, or Section 39-71-705, MCA. McDanold, 679 P.2d at 1191, aff’d 701 P.2d 1001, 42 St.Rep. 940. Such a claim under Section 39-71-703, MCA, is proper so long as the compensation is proportional to the actual diminution of earning capacity. McDanold, 679 P.2d at 1191. Similarly, in Hafer, we held that an ironworker who earned $7 an hour at the time he injured his elbow but $10 an hour when he filed his claim qualified for benefits under Section 39-71-703, MCA. Hafer, 643 P.2d at 1196. The claimant’s work was hampered by an elbow prosthesis, making him less efficient. This loss of efficiency in the claimant’s work would decrease his chance of finding employment in the open labor market, according to his employment expert. We held that a diminished chance to gain employment translates into a reduced earning capacity and is sufficient for benefits under Section 39-71-703, MCA. Hafer, 643 P.2d at 1195-96.

The decision in Dunn, cited by the hearings officer as authority for his conclusion that one must prove a reduction in earnings, does not change substantially either Hafer or McDanold and so is misconstrued by the Workers’ Compensation Court. Dunn specifically acknowledges that a worker may receive permanent partial disability benefits despite an increase in pay:

“As can be seen from the recent case of Hafer v. Anaconda Aluminum Co. (Mont. 1984), [211 Mont. 345,] 684 P.2d 1114, 41 St.Rep. 1403, it is possible under this test for a worker to earn more after his injury and still collect disability benefits for loss of earning capacity. In Hafer, the claimant earned more after his injury than before and yet we found that he had suffered a 40% loss of earning capacity.” (Emphasis supplied.)

Dunn, 720 P.2d at 1190.

Dunn is a case in which an injured millworker returned to work after surgery on her injured knees. She earned $8.38 per hour when she injured her knees in May, 1980. She earned over $10 per hour at a different job in the mill in 1984. We reversed an award of benefits under Section 39-71-703, MCA, because we concluded that the entirety of the evidence did not sustain the Workers’ Compensation Court’s determination that Dunn’s injury reduced her ability to compete in the labor pool for jobs. The claimant testified that she felt pain, but could bear it; her doctor had not restricted her work activity. Her employment expert testified that she probably would face a pay cut of up to one-half if she left the mill, but did not allow for her ability to earn in the mill at any of seven jobs she was trained for. We held that the employment expert’s refusal to consider her possible earnings at the mill showed that he had not analyzed her ability to earn in the entire, open labor market. Dunn, 720 P.2d at 1190. Therefore, we reversed. Dunn, 720 P.2d at 1191.

Elaine Sedlack has suffered a diminution of her earning capacity, as defined by Thomas and Shaffer. Although she may earn more after the injury than before, the recent cases of Hafer, McDanold, and Dunn are consistent in saying that factor alone does not disqualify her for benefits under Section 39-71-703, MCA, (1983). When coupled with her severe back pain, her attending doctor’s recommendation that she work no more than four days in any given week, and the employment expert’s statement that she now qualifies for only 17 percent of the jobs in the area, it is axiomatic that she has forfeited not only a portion of her ability to earn in her current situation but also her ability to find work in the open labor market as a whole. Section 39-71-104, MCA (1983) provided for a liberal interpretation of the Workers’ Compensation Act. Therefore, we reverse and remand this case for more specific findings of fact, appropriate conclusions of law, and a judgment in keeping with this opinion. Furthermore, Section 39-71-611, MCA (1983), provides that the Workers’ Compensation Court make an award of reasonable attorney’s fees to Sedlack upon a determination that her injuries are compensable.

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

MR. JUSTICE GULBRANDSON,

dissenting.

I respectfully dissent for the reason that the Workers’ Compensation Court, in my opinion, had before it substantial, credible evidence to support its conclusion that appellant suffered no permanent partial disability under Section 39-71-703, MCA.

        FOOTNOTES

      1. The cited section was amended by the 1987 Legislature. It now makes an award of permanent partial disability “66 % % of the difference between the worker’s actual wages received at the time of the injury and the wages the worker is qualified to earn in the worker’s job pool, subject to a maximum compensation rate of one-half the state’s average weekly rate at the time of the injury.”

      . Although this appeal deals with the statutes as they existed before July, 1987, it should be noted that Sections 39-71-705, -706, and -707, MCA, have been repealed.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD ALLEN KINNEY, JR., Defendant and Appellant.
    No. 87-181.
    Submitted on Briefs Dec. 31, 1987.
    Decided Feb. 10, 1988.
    750 P.2d 436.
    J. Dirk Beccari, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Betty T. Wing, Deputy County Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant/appellant Donald A. Kinney (Kinney) appeals his conviction by jury and judgment by the Fourth Judicial District Court, Missoula County, on the offense of driving under the influence (DUI) pursuant to Section 61-8-401, MCA et seq. Kinney claims he was unfairly prejudiced by the State’s introduction into evidence of prior convictions of DUI. We affirm.

The only issue we have before us is whether the District Court erred in allowing the State to introduce evidence of Kinney’s prior convictions for DUI.

We initially note that appellant has included only a partial transcript on this appeal. There is no notice in the file as required pursuant to Rule 9(b), M.R.App.P. We are limited on the facts in this review because of lack of information concerning the circumstances of the arrest. Further, the partial transcript causes problems in determining the issue at bar, admissibility of the prior convictions, due to a lack of the District Court’s substantive rulings.

According to the information filed February 20, 1986, Kinney was charged with three counts. Count I charged Kinney with the offense of DUI, third or subsequent offense, a high misdemeanor under Section 61-8-401, MCA; Count II charged him with operating a motor vehicle with improper license plates pursuant to Section 61-3-301, MCA; and Count III charged Kinney with operating a motor vehicle with a revoked driver’s license under Section 61-5-212, MCA.

The affidavit and motion for leave to file information stated that Missoula County Deputy Steve Peterson stopped Kinney for speeding on January 25, 1986. Peterson smelled alcohol on Kinney’s breath and requested performance of a number of field sobriety tests which Kinney failed. Kinney was arrested and taken to the police department for processing. He refused a blood alcohol test. When asked if he had been drinking, Kinney replied that he had. When asked if he was “under the influence,” he stated, “naturally.”

At an April 3, 1986 omnibus hearing, the State gave Kinney notice that it intended to introduce evidence of previous convictions pursuant to Rule 404, M.R.Evid. A checklist at the omnibus hearing required the State to file formal notice as required under State v. Just (1979), 184 Mont. 262, 602 P.2d 957, by April 18, 1986. This notice was never filed and on November 20, 1986, the District Court granted Kinney a motion in limine disallowing the State from introducing any evidence of the prior convictions.

Kinney originally entered a plea of not guilty to all three counts but changed the plea to guilty on all counts except driving under the influence on November 20, 1986. Trial occurred November 20 and 21, 1986. At trial, the following testimony was elicited from Kinney:

“[On direct examination by defense counsel]:
“Q. Are you familiar with the term “under the influence,” Mr. Kinney?
“A. I am now, yes.
“Q. I’m going to ask you the critical question. Were you under the influence of alcohol at the time you were arrested?
“A. I don’t believe so.
“Q. You’re quite sure?
“A. Yes.
“Q. Do you recall when I was talking to the jury earlier and I explained the difference between ‘under the influence’ or ‘having one drink and driving under the influence?’
“A. Yes.
“Q. When the officer asked you if you were under the influence, were you or were you not assuming that ‘under the influence’ meant just having a sip of beer?
“[Prosecutor]: Objection, leading the witness, Your Honor.
“[The court]: Sustained. Rephrase your question.
“Q. [Defense Counsel]: Why did you tell the officer you were under the influence, when obviously from your testimony, you did not have very many beers?
“A. Well, I didn’t understand what ‘under the influence’ meant. I thought even if you took like a teaspoon full of alcohol, you’d be under the influence since you had the alcohol in your system.

[On cross-examination, Kinney testified as follows]:

“Q. [Prosecutor] I guess I will rephrase my question and ask you to answer my question. My question is you just testified you do not understand the term, ‘under the influence.’ My question to you is, is that the reason why you answered the officer in response to his question, ‘Naturally?’
“A. Yes.
“[Defense Counsel]: Your Honor, I think he should be allowed to explain that question more. The first time [the prosecutor] asked that he had begun to answer by explanation.
“[The court]: Did you have more of an answer you wanted to give?
“A. Yes. The reason I answered, ‘Naturally,’ is because the previous question was, ‘Had I been drinking?’ And the next question was, ‘Was I under the influence?’ And I didn’t understand what the term meant, so I said, ‘Naturally.’
“Q. [Prosecutor]: Mr. Kinney, your testimony has been that you don’t understand the meaning of ‘under the influence of alcohol,’ is that correct?
“A. I didn’t at the time, I do now.
“Q. Mr. Kinney, isn’t it also true that you have two prior convictions before this incident for driving under the influence of alcohol?
“A. Yes.”

[No objection was made to the question and there was no motion to strike the answer.]

The general rule is that failure to timely object or make a motion to strike does not preserve the record for claiming error on appeal. Rule 103, M.R.Evid., states that “[e]rror may not be predicated upon a ruling which admits evidence unless ... a timely objection or motion to strike appears of record . . .” See, Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 188, 44 St.Rep. 444, 450; Poindexter & Orr Co. v. Ore. R.R. Co. (1905), 33 Mont. 338, 83 P. 886.

As evidenced in the partial transcript, however, the District Court, on the following day of trial, let defense counsel object on the record to the questioning regarding the prior convictions. Due to the ruling of the District Court we will consider the evidence as if the objection had been timely made.

At the close of the trial, the District Court properly instructed the jury on prior convictions:

“The State has offered evidence that the defendant at another time engaged in other crimes. That evidence was not admitted to prove the character of the defendant in order to show he acted in conformity therewith. The only purpose of admitting that evidence was to show knowledge or absence of mistake or accident. You may not use that evidence for any other purpose.”

Kinney claims the District Court erred when it allowed questioning regarding the prior DUI conviction evidence because it was inadmissible under Rule 609, M.R.Evid., and the State violated the notice requirements of State v. Just, supra. Kinney claims his character was degraded in contravention of Section 26-2-302, MCA, when the prosecutor asked him about his prior DUI convictions. This statute is cross-referenced with Rule 609, M.R.Evid., which states: “For purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible.”

Rule 404(b), M.R.Evid., also deals with the question of when prior conviction evidence is admissible. It states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added.)

Prior conviction evidence is generally admissible in two ways. The first, requires compliance with the standards set out in State v. Just, supra. Alternatively, however, when the defendant puts before the jury the issue of his character or misguides the jury by statements of his good moral attributes, he “opens the door” and the prosecution may introduce evidence of prior crimes, wrongs or acts.

We have stated that the trial court has wide discretion in determining whether previous conviction evidence should be allowed. Absent an abuse of discretion, the Court will not overturn a District Court’s weighing of the danger of prejudice to the defendant against the probative value of the prior conviction evidence. Rule 403, M.R.Evid.; State v. Pease (Mont. 1986), [222 Mont. 455,] 724 P.2d 153, 162, 43 St.Rep. 1417, 1428; State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380.

In Austad, supra, we affirmed the District Court when it allowed evidence of a previous conviction even though the strict procedure of Just was not followed. The defendant in Austad, stated that he would not have committed the crime of burglary because it was not in his nature. The prosecution then presented evidence that the defendant had indeed previously been convicted of burglary. We stated that despite the defendant’s answer being elicited from the State, the pertinent trait of the defendant’s character was thrust before the jury and therefore the defendant’s statement came [w]ithin the exception of Rule 404(a)(1), and open[ed] the door for the State to present rebuttal evidence of a pertinent trait of the character of the accused.” Austad, 641 P.2d at 1383.

The defendant in Austad primarily relied on Rule 609, M.R.Evid., just as Kinney is in this case. Under the facts of this case, Rule 404(b) is also applicable.

“Here, the evidence of defendant’s prior felony conviction was admitted to prove not that defendant committed the crimes of which he was charged, but that defendant lied under oath.” Austad, 641 P.2d at 1384.

In the instant case, the evidence was not presented by the State to prove that, because Kinney had previously committed the offense of DUI that he would commit it again, but instead the previous crime evidence was allowed to prove that he had knowledge of what “under the influence” meant. As we said in Austad, this type of case falls outside of Rule 609 and the strict procedural requirements of Just, supra, and its progeny of case law.

“Here, on cross-examination, defendant answered a question with an unnecessary, self-serving statement which he knew to be untrue, intended to place him in a better light with the jury.”

Austad, 641 P.2d at 1384.

We stated that Austad’s testimony “open[ed] the door” for the state to present rebuttal evidence. The testimony in this case shows Kinney also made statements which were self-serving and placed him in a better light with the jury on direct examination. Specifically, when Kinney said he was not familiar with the term “under the influence” at the time of the arrest and did not believe he was under the influence when he was arrested, he opened the door to evidence of the previous DUI convictions.

Once the issue is presented to the jury by the defendant, the prosecution may introduce evidence of prior crimes. In State v. Wilson (Mont. 1981), [_ Mont _,] 631 P.2d 1273, 1277, 38 St.Rep. 1040, 1044, we stated:

“If [a defendant in a criminal case] takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. ‘[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’. . . Brown v. United States (1958), 356 U.S. 148, 154-155, 78 S.Ct. 622, 626, 2 L.Ed.2d 589, 596-597.”

Kinney’s statements fall precisely under the exception stated in Rule 404(b) that prior crimes can be presented to prove defendant’s knowledge. Having been convicted of DUI on a number of prior occasions, Kinney undoubtedly had knowledge of what “under the influence” encompassed. In his testimony, Kinney attempted to misguide the jury by claiming he did not understand the term.

When a defendant understands the intricacy of proving a legal term of art and attempts through his own testimony to subvert proof of this element, he has clearly shown knowledge. There is no question that Kinney’s knowledge was relevant in this case and fell into the category of exceptions stated in 404(b).

Under the facts of this case, we hold that the District Court did not abuse its discretion by allowing evidence of the prior DUI convictions.

Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    ERMINDO ZAVARELLI, Plaintiff and Respondent, v. ANGELA MIGHT, Defendant and Appellant.
    No. 87-191.
    Submitted on Briefs Oct. 22, 1987.
    Decided Feb. 10, 1988.
    749 P.2d 524.

      Connell, Beers & MacDonald, Thomas J. Beers, Missoula, for defendant and appellant.
    Hugh Kidder, Missoula, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, the judgment of the District Court, Fourth Judicial District, Missoula County, permanently enjoined Angela Might from destroying or interfering with the existing sewer system servicing the apartments of Ermindo Zavarelli, denied Angela Might any money damages, and denied each party costs of suit. We reverse.

Ermindo Zavarelli and Angela Might are brother and sister. Through the probated will of their father, in 1968, they each became life tenants with undivided interests in the whole of certain abutting tracts of land in Missoula County, previously owned by the father.

The father died in 1966. Beginning in that year, Ermindo commenced with building certain apartment buildings on the property subject to the then undivided life estates of the parties. This continued until eight apartments were built, all of them being situated on Lot 18, Cobban and Dinsmore Orchard Homes No. 2.

Ermindo obtained permits for the installation of septic tanks and sewer drainage lines from the Missoula County Health Department. The court found that part of the septic tank system (or sewer system) intruded on lands contained within the Eddy Addition to the south of said Lot 18. The court further found that Ermindo placed the septic tanks on the property before the life estate interests were divided north of a board fence which the court found was understood by the parties to be on the south property line of Lot 18.

The foregoing recitation of the location of the septic tank system as to Eddy Addition comes from our interpretation of the findings of the District Court. We are hampered in an exact determination because no exhibit or testimony which is part of the appeal record, by diagram or otherwise, sets forth the location of the apartments and the septic tank system anywhere near the Eddy Addition. The system may indeed intrude over the north border of Tract A, which is wholly contained within Lot 18 of Cobban and Dinsmore Orchard Homes No. 2 Subdivision. Regardless, the principles here set forth are the same.

On February 25, 1971, Ermindo made, executed and delivered to Angela a quitclaim deed to all of the lots contained in Blocks 2 and 3 of the Eddy Addition, plus tracts of land described as Tract A and Tract B, situated within Lots 18 and 19 of Cobban and Dinsmore Orchard Homes No. 2. In like manner, on February 25, 1971, Angela made, executed and delivered a quitclaim deed to Ermindo of all of the remaining portions of Lots 18 and 19, Cobban and Dinsmore Orchard Homes No. 2. The remaindermen after the life estates were all grandchildren of the deceased father and all of the remainder-men joined in the execution and delivery of the quitclaim deeds. Thus, the parties agree that the issues in this case involve only the rights of the life estate holders, Ermindo and Angela.

In 1983, Angela had survey work done to locate the property lines pursuant to the descriptions in the 1971 quitclaim deed. She discovered thereby that the sewage disposal system for the apartments of Ermindo were located partially to the south of his property line and were partially on the property deeded to her. The court found that Angela had no knowledge of the existence and location of the septic tanks and system partially on her land until the survey.

After the survey, Angela attempted to place a fence along the boundary lines as surveyed, keeping it approximately 1 foot inside her boundary. Some unknown person cut the wire, took down the fence posts and removed the surveying pins. Ermindo denied any knowledge of the destruction of the new fence. The court found that the new fence interfered with the operation of Ermindo’s apartments and maintenance of the septic tanks serving those apartments.

On November 18, 1983, Ermindo filed in the District Court his complaint for injunctive relief against Angela, seeking temporary, preliminary and permanent injunctions against her for interfering with the existing sewer system of Ermindo’s and to prevent her from further fencing the property. Angela responded, contending ownership of the properties as set forth in the quitclaim deeds, alleging the unwanted presence of the septic tanks upon her lands, contending that she had been damaged, that she had no longer full utility of her property, and, that the value of her land had decreased and counterclaimed for appropriate relief.

Trial was had before the District Court, sitting without a jury. The District Court found and concluded that the parties had by mutual agreement divided property subject to the the life estates between themselves by delineating in the quitclaim deeds the exact descriptions of the property each party was to own; that they relied on the legal descriptions as set forth in recorded subdivision plats in Missoula County; that they were both under the impression that the fence erected by the father was a boundary fence between Cobban and Dinsmore Homes No. 2 Subdivision and the Eddy Subdivisions; that the trespass to Angela’s property by Ermindo was unknown to her until 1983 when she made the survey, and the court further concluded:

“That the plaintiff has built apartments close to the south boundary of his property where it abuts the property of the defendant. That when he built the apartments, plaintiff unknowingly placed the septic systems for the apartments partially on the property of the defendant. That the septic systems for the apartments were in place long before the parties divided the property and plaintiff acquired a prescriptive easement for said septic tanks system.”

Based on the foregoing, the court ordered that Angela be permanently enjoined from interfering with the existing sewer system for the apartments of Ermindo, and denied her any other relief.

Angela has appealed the final decision to this Court.

Issues raised by Angela are that the District Court erred in determining that Ermindo had acquired a prescriptive easement for the sewer system on her property; that it erred in allowing the issue of prescriptive easement to be raised after trial; and that extrinsic evidence to the parties’ agreement to divide the life estate should not have been admitted.

It is clear that neither the findings of the court nor the evidence will support a prescriptive easement in this case.

A prescriptive easement is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of five years. Section 23-2-322, MCA. The party claiming title to an easement by prescription must show that the possession was open, notorious, exclusive, and adverse to the other party, and under a claim of right. The absence of anything to show a claim of right on the part of a person claiming the prescriptive easement disposes of the matter of prescription, Custer Consolidated Mines v. City of Helena (1916), 52 Mont. 35, 45, 156 P. 1090, 1094. The circumstances of the possession must be sufficient to put a prudent person upon inquiry. Brannon v. Lewis and Clark County (1964), 143 Mont. 200, 205, 387 P.2d 706, 709-710. The District Court here found that “the trespass became known to [Angela] in 1983, when a survey of her property was completed.” Such a finding negates that the claim of easement by Ermindo was “open . . . notorious, hostile, adverse ...” The statutory elements, therefore to establish a prescriptive easement are missing. See Custer Con. Mines. Co. v. Helena (1916), 52 Mont. 35, 156 P.2d 1090.

The findings of the District Court that the septic systems were in place long before the parties divided the property and the plaintiff acquired a prescriptive easement for the septic tanks are not supported by the evidence. The statutory period for prescriptive easements, five years had not expired when the parties divided their estates. Section 70-19-405, MCA. Until the parties divided their life estate interests in 1971, Ermindo was an equal owner of an undivided life estate in all of the property formerly owned by their father. It is elementary that one cannot acquire a prescriptive easement against oneself as owner.

Ermindo’s complaint proceeds on the theory that he and Angela had divided the property in accordance with directions received from the father and that the true boundary line between their property should have been that marked by a board fence south of Lot 18. Although the District Court made findings and conclusions respecting the location of the fence, the judgment of the court that there was a prescriptive easement, is a refutation of any title to the disputed area in Ermindo and is, instead, a conclusion that Angela owned the land up to the subdivision line of Lot 18, but subject to the purported prescriptive easement of Ermindo. Ermindo can not both own the surface of the land up to the line of the board fence, and have a prescriptive easement under the same ownership. The easement would merge in the title. Ermindo could not claim the title to the surface of the disputed area south of Lot 18 by adverse possession, since he did not pay the taxes thereon. Section 70-19-411, MCA.

Since the prescriptive easement cannot be supported, the judgment must be reversed. We remand for such further proceedings as are necessary in the light of this opinion and the facts found by the District Court.

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


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

text:
    JOSEPHINE M. BECK, Claimant and Appellant, v. FLATHEAD COUNTY, d/b/a Flathead County Nursing Home, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 87-262.
    Submitted Jan. 4, 1988.
    Decided Feb. 10, 1988.
    749 P.2d 527.

      Trieweiler Law Firm, Terry Trieweiler argued, Whitefish, for claimant and appellant.
    Warden, Christiansen, Johnson & Berg, Todd A. Hammer argued, Kalispell, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Claimant Josephine M. Beck appeals the Workers’ Compensation Court order denying her claim for permanent partial disability benefits for loss of actual earning capacity under Section 39-71-703, MCA (1985). We vacate the judgment and remand the matter to the Workers’ Compensation Court.

Because we are reversing, we limit our review to the following issue:

Is the claimant required to prove an actual wage loss or merely a reduced earning capacity before she qualifies for permanent partial disability benefits under Section 39-71-703, MCA (1985)?

Claimant Josephine M. Beck is a forty-three-year-old mother of four adult children. Claimant Beck is currently employed by the Flathead County Nursing Home as a nurse’s aide. Claimant’s duties as a nurse’s aide include feeding, bathing, and changing patients and assisting patients in and out of bed. Claimant has been employed as a nurse’s aide for approximately ten years. Previously, she was employed as a waitress, a sales clerk, an anodizer and a plywood-plant laborer.

On April 14, 1984, claimant Beck injured her neck, shoulder and arm when a patient, whom she was changing, grabbed her neck and “jerked.” In September 1984, Beck underwent back surgery, during which her sixth and seventh cervical vertebrae were fused. Immediately following claimant’s injury, defendant accepted liability and paid benefits of $126.61 per week for 105 weeks. On January 22, 1986, defendant denied Beck’s claim that she sustained a permanent physical impairment and a permanent reduction in earning capacity. On March 4, 1986, Beck offered to settle for $50,010.95 for future “whole person” permanent partial disability benefits.

At the time of her injury on April 11, 1984, Beck was earning $4.76 per hour. Claimant returned to work on February 4,1985. Currently, Beck earns $5.56 per hour. Following hearing on May 21, 1986, the hearings examiner found that Beck was not entitled to permanent partial disability benefits under Section 39-71-703, MCA (1985), since she was earning more after her injury. On June 22, 1987, the Workers’ Compensation Court adopted the hearings examiner’s proposed findings of fact and conclusions of law.

We note the issue discussed below is identical to the issue discussed in Sedlack v. Bigfork Convalescent Center, [1988] [230 Mont. 273,] 749 P.2d 1085, [45 St. Rep. 199].

Issue

Is the claimant required to prove an actual wage loss or merely a reduced earning capacity before she qualifies for permanent partial disability benefits under Section 39-71-703, MCA (1985)?

Claimant contends that the hearings examiner and the Workers’ Compensation Court incorrectly applied Section 39-71-703, MCA (1985), which provides:

“Weekly compensation benefits for injury-producing partial disability shall be 66% of the actual diminution in the worker’s earning capacity measured in dollars subject to a maximum weekly compensation of one-half of the average weekly wage.” [Emphasis added.]

Section 39-71-116(12), MCA, defines permanent partial disability:

“(12) ‘Permanent Partial Disability’ means a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capacity less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit . . . .” [Emphasis added.]

Previously, we defined impairment of earning capacity in a personal injury context as “the permanent diminution of the ability to earn money in the future.” Thomas v. Whiteside (1966), 148 Mont. 394, 397, 421 P.2d 449, 451. Pre-injury and post-injury wages are but one factor to consider when determining earning capacity. Earning capacity also includes age, occupational skills, education, previous health, remaining number of productive years and degree of physical or mental impairment. Thomas, 421 P.2d at 451.

The correct test for loss of earning capacity is whether the injury has caused “a loss of ability to earn on the open labor market.” Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211, 213-214, 259 P.2d 340, 342; Fermo v. Superline Products (1978), 175 Mont. 345, 348, 574 P.2d 251, 253; Hafer v. Anaconda Aluminum Co. (1982), 198 Mont. 105, 109, 643 P.2d 1192, 1195, appeal after remand, 684 P.2d 1114, 41 St.Rep. 1403; Dunn v. Champion International Corp. (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 1189, 43 St.Rep. 1124, 1128. An injured worker who earns more after his injury may be eligible for workers’ compensation benefits if he shows a reduced earning capacity. Fermo, 574 P.2d at 254; Hafer, 643 P.2d at 1195-1196.

In Fermo, claimant was earning more after his injury. However, claimant was suffering great pain that detracted from the speed and efficiency of his work. Claimant was forced to compete against younger and healthier persons for the available work. 574 P.2d at 253. Claimant Fermo also showed loss of capacity to perform his work and a loss of ability to compete in the labor market. Therefore, we affirmed claimant’s workers’ compensation award under Section 92-703.1, R.C.M. 1947 (later Section 39-71-703(1), MCA).

In a fashion similar to Fermo, claimant has attempted to show that although she currently earns more, she has a reduced earning capacity. Claimant Beck cites her persistent muscle spasms, numbness, and soreness in her shoulder, back and neck. Beck also testified that her condition grows worse by the end of each working day and that she occasionally misses work due to injury-related headaches. Beck’s treating physician corroborated the above-mentioned testimony. Additionally, Norman Johnson, a vocational rehabilitative specialist, testified that the percentage of the Flathead Valley job market for which Beck qualifies has been greatly reduced. Judy Mumford, also a vocational rehabilitative specialist, stated that due to her injury claimant Beck would probably not be able to continue working indefinitely as a nurse’s aide. In the event that claimant was forced to compete in the job market, Mumford testified that claimant’s earning capacity would be reduced to minimum wage.

Respondents contend that the Workers’ Compensation Court properly denied appellant’s claim based on her election of remedies. Claimant Beck earned more following her injury. Therefore, respondents contend that she failed to present substantial credible evidence of lost earning capacity. As a result, respondents claim that Beck’s remedy is limited to indemnity benefits under Sections 39-71-705 through -708, MCA (1985).

We held in McDanold v. B.N. Transport (Mont. 1984), [208 Mont. 470,] 679 P.2d 1188, 1191, 41 St.Rep. 472, 476, that a workers’ compensation claim could be filed under either Section 39-71-703, MCA, or Section 39-71-705, MCA. A claim made pursuant to Section 39-71-703, MCA, is proper when the compensation benefits are proportional to the actual diminution of earning capacity. McDanold, 679 P.2d at 1191. Similarly, in Hafer v. Anaconda Aluminum Co. (1982), 198 Mont. 105, 643 P.2d 1192, we approved an award of workers’ compensation benefits to a claimant who earned more following his injury. We held that a claimant is entitled to compensation benefits upon his showing of reduced earning capacity, evidenced by a diminished chance to gain employment. Hafer, 643 P.2d at 1196; Section 39-71-703, MCA.

Respondents also argue that substantial credible evidence supports the Workers’ Compensation Court’s decision denying appellant’s claim of lost earning capacity. Respondents contend that since appellant has remained employed as a nurse’s aide earning more following her injury for approximately one year, she has not shown reduced earning capacity. Respondents rely on Dunn v. Champion International Corp. (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 43 St.Rep. 1124. In Dunn, a millworker’s claim for permanent partial disability benefits was rejected after evidence was presented that the claimant received higher wages after her injury and did not prove a reduced earning capacity. 720 P.2d at 1190-1191.

We hold the Workers’ Compensation Court erred when it held that claimant was required to prove actual wage loss to qualify for permanent partial disability benefits under Section 39-71-703, MCA (1985). We reverse and remand to the Workers’ Compensation Court. We instruct the Workers’ Compensation Court to determine whether claimant Beck has shown substantial credible evidence of a reduced earning capacity.

MR. JUSTICES HARRISON, WEBER, SHEEHY, McDON-OUGH and HUNT concur.

MR. JUSTICE GULBRANDSON,

dissenting.

I respectfully dissent for the reason that, although the Workers’ Compensation Court may have made an overly broad statement when it concluded: “. . . Because she is now earning more than she was at the time of her injury, she is not entitled to an award of permanent partial disability benefits for loss of earning capacity under Section 39-71-703, MCA[,]” there was substantial credible evidence to support the court’s decision.

In my opinion, the court correctly characterized the case as involving a possible, prospective loss of earning capacity under Section 39-71-705, and noted that the claimant retains her right to elect and petition for further relief. I would affirm.

        FOOTNOTES

      1. Section 39-71-703, MCA (1985), was amended by the 1987 Legislature. The cited section makes an award of permanent partial disability “66 %% of the difference between the worker’s actual wages received at the time of the injury and the wages the worker is qualified to earn in the worker’s job pool, subject to a maximum compensation rate of one-half the State’s weekly rate at the time of injury.”

      . Sections 39-71-705 through -707, MCA, have since been repealed.