author: MR. JUSTICE McDONOUGH MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID HOLZAPFEL, Defendant and Appellant.
    No. 86-550.
    Submitted on Briefs Aug. 20, 1987.
    Decided Jan. 14, 1988.
    748 P.2d 953.

      Arthur D. Agnellino, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Marc Racicot, County Prosecutors Services, Joe Roberts, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant, David F. Holzapfel, appeals his conviction of two counts of accountability for the criminal sale of dangerous drugs (felony) in the Thirteenth Judicial District, Yellowstone County. Holzapfel was sentenced to 20 years on each count, the sentences to be served concurrently, with the last ten years suspended in lieu of restrictive probation. We reverse and remand for dismissal of Count I (hereinafter referred to as the Motel Count) and affirm as to Count II (hereinafter referred to as the Apartment Count).

Defendant raises five issues on appeal:

1. Whether the District Court erred in admitting into evidence the results of a post-arrest, nonconsensual, warrantless search of defendant’s wallet?

2. Whether the fruits of a warrantless search of defendant’s hands after arrest with an ultraviolet light are admissible?

3. Whether it was error to instruct the jury that the State’s witness was an accomplice of the defendant as a matter of law?

4. Whether there existed sufficient corroboration of accomplice Mohland to support conviction on the Motel Count?

5. Whether there is sufficient credible evidence to support defendant’s conviction on the Apartment Count?

The facts relevant to this appeal are as follows:

Motel Count: On July 16, 1985, an undercover agent for the Montana Criminal Investigation Bureau, Doug King, contacted John Mohland in a Billings bar. While meeting with Mohland, arrangements were made by King to purchase an ounce of cocaine through Mohland for $2,200.

On July 19, 1985, King met Mohland at the same bar. The two men drove to a Thrifty Scot Motel where King waited in Mohland’s truck while Mohland went inside the motel. Mohland returned to the truck in a short time stating that the person whom he was seeking was not there. Mohland and King came back to the Thrifty Scot Motel later that evening. Again, Mohland took King’s $2,200 and entered the motel while King waited outside in the truck. Mohland returned from the motel with a baggie containing white powder purported to be cocaine. The two men separated and King turned the alleged cocaine over to a police agent.

Trial testimony shows that David Holzapfel, address 3930 Victory Circle, Billings, Montana, was registered at the Thrifty Scot Motel on July 19,1985. The record states that Holzapfel was staying at the motel for a few days because of an argument between he and his wife.

Apartment Count: On July 23, 1985, King again contacted Mohland at a Billings bar. On this date King asked Mohland to help him purchase 4 ounces of cocaine. As a result of this meeting King met with Mohland at a designated location on July 25,1985. They drove in Mohland’s truck to Victory Circle, a Billings apartment complex. King gave Mohland $8,400 to purchase the drugs. The money had been dusted with invisible detection powder which shows up only under ultraviolet light. Mohland took the money and disappeared into Building 3930. An agent stationed outside of the complex as part of a surveillance team testified that he saw Mohland at the door of Apartment 18 in Building 3930. There were approximately 12 officers attempting to completely surround the apartment buildings for a 360 degree surveillance.

After approximately ten minutes, Mohland returned to King’s location and gave him a baggie containing a white substance which was later identified as cocaine. Police agents and officers surrounded the vehicle and Mohland was arrested.

Following Mohland’s arrest, an officer of the Billings police department and two special agents proceeded to Apartment 18 in Building 3930. No one answered the door to Apartment 18 when they knocked so the officer kicked the door open.

Although the agents and officer did not have a search warrant at the time they kicked the door to Apartment 18 open, they testified that because no one was observed leaving the apartment or the apartment building they believed the suspected drug seller was inside. They apparently believed that they needed to get inside quickly to preserve any evidence in the apartment.

The only people inside Apartment 18 were a woman and a baby, later identified as Esther and Jennifer Holzapfel, David Holzapfel’s wife and infant daughter. However, one of the agents testified that Esther Holzapfel told the police that her husband had just left the residence. The apartment was secured until a search warrant was obtained approximately three hours later. The search warrant was obtained in the name of Esther Holzapfel for the apartment of Esther Holzapfel. The search revealed books about drugs and drug manufacturing, a scale, plastic baggies, plastic vials and other alleged drug paraphernalia.

Around 3:30 or 4:00 that afternoon, while the police were waiting for the search warrant, David Holzapfel appeared at the apartment with a friend. The friend, Harold C. James, Jr., testified that he had been with David Holzapfel since approximately noon of that day, July 25, 1985. However, on cross-examination James indicated that Holzapfel may have arrived at least two hours after noon. Holzapfel supposedly came to James’ house to solicit his help in moving some heavy furniture. After watching TV and talking for “a while” they proceeded to Apartment 18, in Victory Circle where defendant lived with his wife, Esther Holzapfel and their daughter. When confronted at the apartment door and denied entrance, David Holzapfel walked away from the apartment complex. James was retained and questioned for approximately 2 to 3 hours.

At the time of his arrest, John Mohland told the police that David Holzapfel had sold him cocaine on July 19 at the Thrifty Scot Motel and on July 25 at Apartment 18, Building 3930, Victory Circle. On July 25, David Holzapfel called an attorney, Allen Beck, and requested Beck to find out if a warrant for his arrest had been issued. Beck talked with the Yellowstone County Special Deputy County Attorney and made arrangements with him to have David Holzapfel arrested at Beck’s office the following day.

David Holzapfel was arrested at Allen Beck’s office on July 26, 1985. Special agent McKay transported Holzapfel to the Yellowstone County Jail where he was booked. Without obtaining a search warrant, Agent McKay took Holzapfel’s wallet from the jailer and examined it under an ultraviolet light. McKay testified that in the wallet he found “apparent traces of invisible fluorescent detection powder.” Immediately after searching the wallet, agent McKay searched defendant’s hands with the ultraviolet light. He found traces of the detection powder on the knuckle of defendant’s right ring finger.

At trial Mohland testified as the State’s witness. He claimed that David Holzapfel sold to him for Doug King one ounce of cocaine on July 19, 1985, at the Thrifty Scot Motel, and 4 ounces of cocaine on July 25, 1985, at Apartment 18, Building 3930, Victory Circle. The District Court instructed the jury that Mohland was Holzapfel’s accomplice as a matter of law.

Defendant moved the District Court to suppress the evidence obtained during the search of Apartment 18, Building 3930, Victory Circle and from the warrantless searches of his wallet and hands while being jailed. All motions were denied. In spite of objections by defendant at trial, all the evidence obtained during these searches was introduced.

David Holzapfel was found guilty on both Counts for accountability for the criminal sale of dangerous drugs (felony). From these convictions, David Holzapfel appeals.

Issue No. 1

Whether the District Court erred in admitting into evidence the results of a post-arrest, nonconsensual warrantless search of defendant’s wallet.

Holzapfel argues that Officer McKay’s inspection of the wallet violated his privacy rights under the U.S. Constitution and the Montana Constitution because McKay did not obtain a warrant prior to the search. The State responds that Section 46-5-101, MCA, excepts McKay’s actions from the warrant requirement.

Section 46-5-101, MCA, states:

“46-5-101. Searches and seizures when authorized. A search of a person, object, or place may be made and instruments, articles, or things may be seized in accordance with the provisions of this chapter when the search is made:
“(1) as an incident to a lawful arrest;”

This statute and the State’s interest in conducting a search, whether it be incident to lawful arrest or an inventory search, must be weighed against the individual’s expectation of privacy and the other rights afforded individuals by the U.S. Constitution, Fourth Amendment and the Montana Constitution, Article II, Sections 10 and 11.

In balancing the Fourth Amendment interest, the Ninth Circuit Court of Appeals has held that a “warrantless search of personal possessions at the station house pursuant to a valid arrest does not violate one’s Fourth Amendment rights.” United States v. King, 472 F.2d 1, 7 (9th Cir. 1972), cert. denied, 414 U.S. 864, 94 S.Ct. 40, 38 L.Ed.2d 84 (1973); and see generally Annot., 29 A.L.R.4th 771, 847. In United States v. Ziller (9th Cir. 1980), 623 F.2d 562, cert. denied, 449 U.S. 877, 101 S.Ct. 221, 66 L.Ed.2d 99 (1980), and in United States v. Passaro (9th Cir. 1980), 624 F.2d 938, cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 842 (1981), the Court faced the issue of the validity of a warrantless investigatory search at the station house of an arrestee’s wallet. In Passaro, the Court stated that a wallet is an element of clothing, “which is, for a reasonable time following a legal arrest, taken out of the realm of protection from police interest.” Passaro, 624 F.2d at 944, and see Ziller, 623 F.2d at 563. Thus, the search of the wallet in this case, as in Ziller and Passaro, was valid under the Fourth Amendment to the U.S. Constitution.

The search also satisfies the privacy guarantees of the Montana Constitution. See City of Helena v. Lamping (Mont. 1986), [221 Mont. 370,] 719 P.2d 1245, 43 St.Rep. 901. In Lamping we adopted the Ninth Circuit’s distinction between searches of the person and objects immediately associated with the person, and searches of possessions within an arrestee’s immediate control. The item searched in Lamping was an open pack of cigarettes found in the arrestee’s pocket. We held in Lamping that a search incident to arrest of the person or of objects immediately associated with the person requires no warrant because the arrest reduces the arrestee’s expectation of privacy. Lamping, 719 at 1247. Under Ziller and Passaro, a wallet is a possession immediately associated with the person which may be searched pursuant to a search of the person following a valid arrest. We adopt this characterization of wallets, and thus McKay’s intrusion was reasonable. Once a search incident to arrest is found to be reasonable, the State need not show that the evidence was destructible. State v. Ulrich (1980), 187 Mont. 347, 354, 609 P.2d 1218, 1222.

We affirm admission of evidence showing the presence of the detection powder in defendant’s wallet.

Issue No. 2

Whether the fruits of a warrantless search of defendant’s hands after arrest with an ultraviolet light are admissible.

The first problem presented by this issue is the question of whether exposing an arrestee’s hand to an ultraviolet light constitutes a search under the plain view doctrine. If the exposure does not constitute a search, Holzapfel does not have a legitimate expectation of privacy in what may be revealed by shining such a light on his hands. See State v. Allen (1980), 188 Mont. 135, 612 P.2d 199.

According to one authority, courts have had “considerable difficulty of whether such use of an ultraviolet lamp itself constitutes a search.” See 1 W. Lafave, Search and Seizure Section 2.2(d) at 350 (2d ed. 1987). However, the “numerical majority have reached the conclusion that this conduct is not a search in the Fourth Amendment sense.” 1 W. Lafave, Search and Seizure Section 2.2(d) at 350 (2d ed. 1987). One of the courts in the numerical majority, facing a fact pattern similar to the case currently before us, stated the rationale for holding that shining an ultraviolet light may not always constitute a search:

“[D]efendants had no reasonable expectation of privacy as to the presence of foreign matter on their hands independent of the expectation of privacy of their premises which had been legitimately invaded by the police. The [fluorescent] grease may be compared to a physical characteristic, such as a fingerprint or one’s voice, which ‘is constantly exposed to the public.’ United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). The Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public.’ Katz v. United States,, supra, at 351 of 389 U.S., at 511 of 88 S.Ct. [507, 19 L.Ed.2d 576]. It is true that the grease could not be detected with the naked eye, but then, neither may a fingerprint be examined until there has been an application of ink. Furthermore, the examination was both limited and controlled, affording no opportunity to learn any information other than that specifically sought: Have the persons hands been in contact with treated contraband? In this respect, the examination was more circumscribed than any eavesdropping, electronic surveillance, long-distance viewing with binoculars, or even the use of a flashlight. Also, it involved no personal indignities or physical discomfort, and was neither annoying, frightening, nor humiliating.”

Commonwealth v. DeWitt (1973), 226 Pa. Super. 372, 314 A.2d 27, 30-31. We agree with the rationale of DeWitt and hold that under the facts of this case, the shining of the ultraviolet light does not constitute a search so as to implicate privacy rights under the U.S. or Montana Constitution. The fact that Holzapfel was validly arrested; that the wallet was properly seized; and that the light only afforded an opportunity to learn if Holzapfel’s hand may have touched the drug money, persuades us in this respect.

We affirm admission of evidence showing the traces of detection powder on defendant’s hand.

Issue No. 3

Whether it was error to instruct the jury that the State’s witness was an accomplice of the defendant as a matter of law.

Jury Instruction No. 25 read:

“You are instructed that John Mohland is an accomplice in this case. In this respect, you are to be guided by the following rules of law:
“1). The testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but should give it the weight to which you find it entitled, after examining it with care and caution, and in light of all the evidence in the case.
“2). A conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

The defendant did not object to the instruction as given. He cannot now argue that it is in error. Failure to object to the instruction at the trial level amounts to a waiver of the right to raise an objection on appeal. State v. Long (Mont. 1986), [223 Mont. 502,] 726 P.2d 1364, 1369, 43 St.Rep. 1948, 1950.

Issue No. 4

Whether there existed sufficient corroboration of accomplice Mohland to support conviction on the Motel Count.

The sufficiency of evidence necessary to corroborate accomplice testimony is a question of law. State v. Standley (1978), 179 Mont. 153, 158, 586 P.2d 1075, 1078. The relevant statutory provision, Section 46-16-213, MCA, provides:

“Testimony of person legally accountable. A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

In reviewing the sufficiency of corroborating testimony, it is viewed in a light most favorable to the State. State v. Pascgo (1977), 173 Mont. 121, 125, 566 P.2d 802, 805. However, an accused cannot be convicted solely on accomplice testimony. State v. Harvey (1979), 184 Mont. 423, 431, 603 P.2d 661, 666.

Corroborating evidence may be circumstantial, but it must raise more than a suspicion of the defendant’s involvement in, or opportunity to commit the crime charged. State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99.

The evidence convicting Holzapfel of the Motel Count was almost entirely the testimony of accomplice John Mohland.

Mohland testified that he purchased one ounce of cocaine from Holzapfel in the Thrifty Scot Motel while undercover agent, Doug King, waited outside. No one saw Holzapfel in or near the motel at the time of the drug sale. No one saw which room Mohland entered or exited while inside the motel. The only corroborating testimony linking Holzapfel to the Thrifty Scot Motel was that of two motel employees who testified that David Holzapfel was registered at the Thrifty Scot Motel on July 19, 1985, the date Mohland purchased the drugs. The prosecution bears the burden of producing “corroborating evidence which, of itself and without word or direction from the accomplices’ testimony, tends to connect the defendant with commission of the offense.” Kemp, 597 P.2d at 99-100.

The corroborating testimony in this situation is insufficient to convict Holzapfel of the Motel Count, and we therefore remand for dismissal of the Motel Count.

Issue No. 5

Whether there is sufficient credible evidence to support defendant’s conviction on the Apartment Count.

The test for “the sufficiency of the evidence to support the judgment of conviction is whether there is substantial evidence to support the conviction viewed in a light most favorable to the State.” State v. Stokoe (Mont. 1986), [224 Mont. 4671,] 730 P.2d 415, 417, 43 St.Rep. 2336, 2338. Substantial evidence is such “ ‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Stokoe, 730 P.2d at 417 (quoting State v. Kutnyak (Mont. 1984), [211 Mont. 155,] 685 P.2d 901, 910-911, 41 St.Rep. 1277, 1289).

Substantial relevant evidence in the record supports Holzapfel’s conviction on the Motel Count. Mohland’s testimony that Holzapfel sold him the drugs is accompanied by evidence showing that Holzapfel resided in the apartment Mohland emerged from in possession of the cocaine, that Holzapfel was in the apartment at the time of the sale of the drugs, that Holzapfel touched the money used by Mohland to buy the cocaine, and that Holzapfel possessed equipment used to measure and contain illegal drugs.

Thus we affirm the conviction on the Apartment Count.

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

MR. JUSTICE HUNT,

dissenting:

I strongly disagree with the majority’s affirmation of the first issue presented. Unfortunately, law in this state, as well as nationally, has reflected a trend toward diminishing the individual rights of suspected criminals. The police procedure in this case goes beyond that which can be tolerated under the guise of a reasonable inventory search or a search incident to arrest.

In State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131, a unanimous court held that an inventory search is a substantial infringement upon individual privacy and therefore it is subject to the right of privacy provision, as well as the search and seizure provision of the Montana Constitution.

The majority agrees that using the ultraviolet light to look for detection powder in Holzapfel’s wallet amounted to a search. The majority then relies upon Lamping, 719 P.2d 1245, in finding that the search fell within acceptable privacy limits following a lawful arrest.

To check the contents of defendant’s wallet with respect to the amount of money contained therein would have been permissible as part of an inventory search. See State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341. To inventory the amount of cash carried on a defendant before incarceration does not go beyond a person’s reasonable expectation of privacy.

Likewise, the wallet in and of itself would have been admissible as evidence seized incident to lawful arrest. See State v. Leavens (Mont. 1986), [222 Mont. 473,] 723 P.2d 236, 238, 43 St.Rep. 1431, 1434.

David Holzapfel was arrested at his attorney’s office, then taken to the jailhouse to be booked. His wallet was in the jailor’s possession when agent McKay retrieved it and searched it with an ultraviolet light. It is intellectually dishonest to call such a procedure a lawful “search incident to arrest.”

The United States Supreme Court has faced a similar question in Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900. It is helpful to see what this country’s highest court said in delineating the boundaries beyond which law enforcement cannot exceed when conducting searches and seizures.

In Cupp, the defendant voluntarily appeared at the police station to be questioned about the strangulation of his estranged wife. During questioning a dark spot underneath defendant’s fingernail was noticed. Upon request to look more closely at the spot, defendant hid his hands in his pockets, rubbed them together and refused to cooperate with the police. Against defendant’s will, the police scraped under defendant’s nail, obtaining what was later identified as blood, skin and nightgown fibers from his wife’s body. In reversing the Ninth Circuit Court of Appeals, the United States Supreme Court held that the substances found during that “search and seizure” were admissible as evidence even though a search warrant was not obtained. The court stated that the circumstances “justified the police in subjecting him to the very limited search necessary to preserve the highest evanescent evidence they found under his fingernails.” (Emphasis added.) 412 U.S. at 296, 96 S.Ct. at 2004.

Justice Marshall, in a concurring opinion, clarified the application of the decision. “The scope of search must be strictly limited in terms of the circumstances that justify the search.” 412 U.S. at 299, 93 S.Ct. at 2005.

In the recent case of State v. Lamere (Mont. 1987), [226 Mont. 323,] 735 P.2d 511, 44 St.Rep. 690, this Court addressed the permissible scope of search of a defendant or his belongings prior to incarceration. In Lamere, this Court adopted the rule from the very recent United States Supreme Court decision, Colorado v. Bertine, (1987) _ U.S. _, 107b S.Ct. 738, 93 L.Ed.2d 739. Bertine held that inventory searches were admissible when: 1) police are following standardized procedures; 2) police are not acting in bad faith or for the sole purpose of investigation; and 3) by securing the property, police are protecting it from unauthorized interference and to protect against claims of vandalism, theft or negligence. 44 St.Rep. at 693.

In the present case, the record is void of any reason why a search warrant could not be obtained before defendant’s wallet was searched with an ultraviolet light for traces of detection powder. Once the wallet was in the jailer’s custody there was no danger of the detection powder being lost, destroyed or disappearing. The powder certainly was not endangering anyone by its invisible presence in defendant’s wallet. Nor was the powder an illicit drug or contraband. Searching with an ultraviolet light is not a usual, standardized procedure. It is evident that agent McKay was searching defendant’s wallet with an ultraviolet light solely for the purpose of investigation. A search warrant should have been required. I believe that the failure to obtain a search warrant renders the admission of evidence of fluorescent powder found inside the wallet reversible error.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    In re the MATTER OF C.G., a Youth in Need of Care.
    No. 87-379.
    Submitted on Briefs Dec. 17, 1987.
    Decided Jan. 14, 1988.
    747 P.2d 1369.
    Harris and Seidler, Nancy Seidler, Billings, for appellant.
    Greg S. Mullowney, Deputy Co. Atty., Olsen, Christensen & Gannett, Damon Gannett, Sally M. Johnson, Billings, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal of findings of fact, conclusions of law and order entered April 15, 1987 and judgment filed April 16, 1987, by the District Court of the Thirteenth Judicial District, Yellowstone County. The District Court granted to the Montana Department of Social and Rehabilitation Services (SRS) temporary custody of C.G. until she reaches the age of eighteen. C.G.’s natural father, D.G., (father) appeals.

We affirm.

The only issue is whether the District Court erred in granting temporary custody to the SRS.

The appellant in this case, the natural father of the child, argues the District Court erred by applying only the “abuse and neglect” portion of Section 41-3-609, MCA, for termination of parental rights. He contends that there was not clear and convincing evidence to support the District Court’s decision. However, the District Court’s order clearly shows that there was not a “termination” of parental rights, only a granting of temporary custody to SRS until C.G. reaches the age of eighteen. The District Court stated:

“It is not in the best interests of [C.G.] that she not see her parents while in the State’s custody. It is strongly recommended by this Court that [C.G.] be placed in a long-term private foster home and be allowed regular contact with both [her mother and father].”

We note at the outset that the mother of C.G. does not appeal the decision of the District Court, therefore, evidence presented as to her conduct is not directly relevant to our determination. Nonetheless, this evidence will be considered in our ascertainment of the best interests of the child.

The mother and father of C.G. were never married and informally lived together from 1976 until 1981. C.G. was born March 13, 1979. Both parents have had alcohol and/or substance abuse problems. As a result, C.G. and her half-brother, R.B., the mother’s son from a previous marriage, have spent significant amounts of time in foster care or with local community service organizations. A detailed history of the children’s home environment, drafted by Majel Bird (Bird), a social worker for the Yellowstone County Human Services, shows that the children were often left alone for long periods of time and C.G.’s brother was forced to accept many of the parental responsibilities. After C.G.’s father left in 1981, he maintained only minimal contact with the children and provided no support.

C.G.’s father has since remarried and moved to Hayward, California. At the time of the hearing on termination of parental rights, the father was receiving workers’ compensation payments as a result of an injury suffered on a job in California. A court-approved written treatment plan was entered into by C.G.’s father from April 15,1983 to July 15, 1983. This plan required the father to attend parental classes, visit C.G. weekly, secure clean, appropriate housing, attempt to procure employment, complete a psychological evaluation and follow any recommendations, and obtain and follow a chemical dependency counselor’s recommendations. Not one of these requirements was ever met.

Testimony was presented that C.G.’s father never kept appointments, did not get involved in employment training programs, nor did he seek or receive any psychological or chemical dependency assistance. He testified that he did not attend parenting classes. C.G.’s father stated “I just didn’t feel right for someone to tell me how to raise my daughter.” Additionally, C.G.’s father did not make contact with the social worker assigned to his case from December of 1985 to September of 1986, only days prior to the District Court hearing. During this period of time, he also had only limited contact with C.G. in the form of a number of cards and alleged telephone calls.

C.G.’s mother has a history of mental illness and was judicially committed in 1981. The mother suffers from severe depression and an exorbitant alcohol problem. Between 1981 and 1986, C.G.’s mother suffered a number of relapses of both mental problems and alcohol abuse which resulted in neglect and abuse of C.G. and her brother. The two children were placed in a foster home numerous times, which was documented by the report filed by Bird. Four separate court-approved written treatment plans designed to assist the mother by stabilizing her emotional life, improving parenting skills, establishing a concrete home environment, and limiting her dependency on alcohol and drugs, were signed by the mother yet never completed.

Testimony presented at the District Court hearings held September 15, 24 and 26, 1986, showed that C.G.’s father had custody of C.G. only a couple of weeks after his separation with the mother in 1981. The father also testified that his current wife had been arrested for prostitution and there was testimony that C.G. did not wish to spend nights with her father and new spouse because she was sent to her room while they “did business.”

The conclusions of law of the April 15, 1987 District Court order stated:

“[C.G.] is an abused or neglected child within the meaning of Section 41-3-102, MCA, and is a youth in need of care. Her normal physical and mental health or welfare is threatened with harm by the acts and omissions of [her father and mother]. Both parents have been unable to provide a safe, appropriate, home environment for this child.
“It is in [C.G.]’s best interests that she be taken from the custody of [her mother and father], and that her temporary care, custody, and control be awarded to [SRS] until she reaches the age of 18 years.”

Counsel for C.G.’s father argues that the District Court erred “[i]n applying Section 41-3-609, M.C.A., 1987, ‘abuse and neglect’ standards for termination of parental rights.”

This argument is inaccurate and appellant’s claim does not address any issue of error by the District Court. It is clear from a reading of the District Court’s order that no termination of parental rights occurred. Therefore, the formal process outlined in Section 41-3-609, MCA, which defines guidelines and criteria for termination of the legal child-parent relationship, need not be addressed. The Guardian Ad Litem appointed for C.G. advocates affirmance of the order of the District Court and filed a supporting brief. The modification of the parental rights of C.G.’s mother and father clearly does not terminate the parent-child legal relationship and therefore any argument regarding termination is superfluous.

The District Court set forth the powers that SRS would have over C.G. allowing that agency to find appropriate long-term private foster care. This will give the child stability and a favorable home environment and still allow interaction between the parents and C.G.

The order does not disallow the parents of C.G. from gaining custody of the child in the future, contingent upon proper compliance with a service treatment agreement which has so far proved unsuccessful.

The policy of this state is to ensure the family unit and that interest is constitutionally guaranteed. Section 41-3-101 (1)(d), MCA; Matter of J.L.B. (1979), 182 Mont. 100, 109, 594 P.2d 1127, 1132. However, the right to maintain the family unit is not absolute and although the children’s best interests and welfare generally are served by maintaining the family unit with custody retained by the natural parents, [t]he children’s best interest and welfare, not that of the natural [parent], is the paramount consideration.” In Re Gore (1977), 174 Mont. 321, 328, 570 P.2d 1110, 1114. The District Court properly determined the best interest of C.G. would be served by temporary custody granted to SRS.

We have stated:

“[T]his Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determination by the district court will be made. Foss v. Leifer, 170 Mont. 97, 550 P.2d 1309, 33 St.Rep. 528 (1976). Due to this presumption of correctness, the district court’s findings will not be disturbed unless there is a mistake of law or a finding of fact not supported by credible evidence that would amount to a clear abuse of discretion.”

Matter of C.A.R. (Mont. 1984), [214 Mont. 174,] 693 P.2d 1214, 1218, 41 St.Rep. 2395, 2398-2399.

There was credible evidence that C.G, was a youth in need of care and is an abused and neglected child pursuant to Section 41-3-102(2), MCA, which states: “ ‘[a]bused or neglected child’ means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent. . .” Harm to a child’s health or welfare is defined in subsection (3) of Section 41-3-102, MCA. Either Subsection (3) (c), which deals with failure to supply an adequate home environment or Subsection (3)(d), dealing with abandonment for a period of six months, would apply in this case.

The findings of fact and conclusions of law are supported by the evidence and testimony and the District Court did not err in determining the best interest of C.G. would be served by temporary custody being granted to SRS.

We affirm.

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


author: MR. JUSTICE HUNT

text:
    RICHARD A. LINTON, Claimant and Appellant, v. CITY OF GREAT FALLS, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-581.
    Submitted on Briefs Jan. 13, 1987.
    Decided Jan. 15, 1988.
    749 P.2d 55.

      Bottomly & Gabriel, Joe Bottomly, Great Falls, for claimant and appellant.
    Marra, Wenz, Johnson & Hopkins, David A. Hopkins, Great Falls, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal by the claimant, Richard Linton, and the State Compensation Insurance Fund from the judgment of the Workers’ Compensation Court awarding Linton permanent partial disability payments retroactive to October 19, 1984, and ordering the State Fund to pay rehabilitation in the form of a pain clinic. Both Linton and the State Fund appeal.

We affirm in part, reverse in part and remand with instructions.

Each party raises three issues on appeal. Linton’s are:

1. Whether the Workers’ Compensation Court erroneously excluded health insurance, retirement contributions and vacation time which were earned pursuant to union contract from the claimant’s compensation rate. We hold that it did not err and affirm on this issue.

2. Whether the Workers’ Compensation Court erroneously required the claimant to show a total loss of earning capacity, as opposed to loss of wages, in order to receive temporary total benefits. We hold that the court erred and reverse on this issue.

3. Whether the Workers’ Compensation Order permitting the defendants to have private interviews and correspondence with the claimant’s physicians was erroneous. We hold that the court erred and reverse on this issue.

The State Fund cross-appeals. Its three issues are:

1. Whether the Workers’ Compensation Court improperly awarded the claimant retroactive disability benefits despite the testimony of two neurologists, two orthopedic surgeons and the treating chiropractor that the claimant was able to continue working as a water meter reader for the City of Great Falls. We hold that the court did not err in awarding benefits and affirm this issue.

2. Whether the Workers’ Compensation Court improperly ordered the State Compensation Insurance Fund to pay for the expenses of a “pain clinic” at the cost of $4,000 to $4,500 when the treatment was not authorized by the defendant and no physician had referred the claimant to the “pain clinic.” We hold that the court did not err and affirm on this issue.

3. Whether the Workers’ Compensation Court improperly ordered the State Compensation Insurance Fund to pay the claimant’s attorneys fees. We hold that there is substantial evidence in the record for the court to award attorneys fees and remand for a determination of attorneys fees by the court.

At the time this appeal was filed, Richard Linton was a 36-year-old divorced father of two who worked as a meter reader for the City of Great Falls. His job entailed driving a truck to various neighborhoods where he would walk around and read the meters with a TTR gun and record the results. The TTR gun weighs approximately 10 pounds. The job required walking approximately six miles a day.

On December 13, 1983, Linton slipped and fell on the ice injuring his right knee, neck, back and shoulder. The day after the accident he went to the emergency room at Columbus Hospital and had x-rays taken. He took three days off work after the accident, then returned to work until March 15, 1984, when he went to see Dr. Trosper, a chiropractor. The injuries to his knee and lower back had cleared, but because his shoulder and neck were painful Dr. Trosper felt it advisable to remove Linton from work. Claimant applied for and was accepted for Workers’ Compensation. Dr. Trosper treated Linton until July 2, 1984, when the doctor released him to return to work on a limited basis. Linton asked the State Fund to change doctors. State Fund referred him to Dr. Forbeck, a neurologist. Dr. For beck found no neurological abnormalities, but recommended an orthopedic examination. Linton was then examined by Dr. Jacobson, an orthopedic surgeon, in September, 1984. Dr. Jacobson found that the symptoms suggested muscle-ligament discomfort but his examination was entirely normal. He found nothing that would prevent Linton from returning to work, except the subjective complaint of pain.

Because Linton did not return to work following Dr. Jacobson’s examination, on October 5, 1984, the State Fund advised him that his benefits would be discontinued as of October 19, 1984. Linton returned to work on October 15 and 16. He testified that he got stiff from working and after two days he could not even turn his head. He took sick leave for the next four days.

On October 18, 1984, the City of Great Falls wrote Linton and asked him to provide them with medical verification by October 23, 1984, of his inability to work. When Linton did not produce the verification within the time period specified, he was terminated by the City for abuse of sick leave.

Linton made an appointment to see Dr. Power, an orthopedic surgeon. Dr. Power found that the original injury could have torn some ligaments that healed with a scar. He suggested heat and exercises and felt the pain should disappear with time. Linton also saw Edward Shubat, a clinical psychologist in January, 1985. Dr. Shubat gave Linton a psychological evaluation in order to determine if he was a good candidate for a chronic pain management program. Dr. Shubat determined that Linton was an excellent candidate for such treatment, which includes biofeedback training, formal relaxation training, and stretching mobility exercises.

Linton was also examined by Dr. Nelson, a neurologist, who gave Linton a thermogram. The thermogram showed trigger points in the claimant’s shoulder girdle. The trigger points are damaged muscles and fibrous tissue that show up on thermograms as hot spots. Dr. Nelson recommended an exercise and therapy program and vocational rehabilitation.

Linton also saw Dr. Tacke who specializes in rehabilitation. He stated Linton would be a good candidate for a chronic pain management program.

The Workers’ Compensation Court found that Linton was a credible witness, and that he should be reinstated with permanent partial disability payments retroactive to the date his benefits were terminated. It also ordered the State Fund to pay for rehabilitation services in the form of a pain clinic and awarded Linton his attorney fees.

The first issue raised on appeal by Linton is whether the Workers’ Compensation Court erred in excluding health insurance, retirement contributions, and vacation time from the calculation of Linton’s wages. The Workers’ Compensation Court calculated Linton’s wages based on Section 39-71-116(20), MCA, (1983). That statute defines wages as:

“. . . the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered. Sick leave benefits accrued by employees of public corporations, as defined by Subsection (16) of this section, are considered wages.”

Because the definition of public corporations in Section 39-71-116(16) includes cities, the Workers’ Compensation Court calculated wages by adding Linton’s gross weekly earnings to his weekly sick leave benefits and excluded all other benefits. Linton contends the term “average gross earnings” should be construed broadly to include health insurance, retirement fund contributions and vacation time accrued. Linton argues that these benefits are all items that were negotiated as part of a union contract and earned in exchange for his labor.

It is our intention to examine federal cases to assist us, but consistent with our often stated position, we will initially examine adequate and independent state grounds to resolve issues and cite federal cases for their analytical persuasiveness and not to mandate our decision. We proceed here on that basis.

Benefits to employees increasingly serve as a substitute for wage demand in collective bargaining agreements. West Winds, Inc. v. M.V. Resolute (9th Cir. 1983), 720 F.2d 1097, 1102, cert. den. (1984), 467 U.S. 1242, 104 S.Ct. 3513, 82 L.Ed.2d 822. Fringe benefits offer to the employee tax-free benefits that he would otherwise have to buy with after-tax dollars, and often at a substantially higher cost. Morrison-Knudsen Const. Co. v. Director, Office of Workers’ Compensation Programs (1983), 461 U.S 624, 103 S.Ct. 2045, 76 L.Ed.2d 194. While we may agree with the theory presented by the claimant that the wording of our statute indicates the legislature intended calculations for Workers’ Compensation benefits to be based on wages plus the fringe benefit of sick leave and not other benefits, the legislature did not mention other benefits that it might have included. The general rule is that if a statute lists specific exceptions to the general rule, then other exceptions are excluded. Stephens v. City of Great Falls (1946), 119 Mont. 368, 381, 175 P.2d 408, 415. The United States Supreme Court was faced with the same question of whether wages as defined in the Longshoremen’s and Harbor Workers’ Compensation Act includes a contribution made by the employer to union trust funds under the terms of a collective bargaining agreement. Morrison-Knudsen Const. Co. v. Director, Office of Workers’ Compensation Programs, supra. The trust funds were used for health and life insurance, unemployment benefits, disability payments, and pensions for the members. The statute in question, 33 U.S.C. Section 902(13), stated:

“ ‘Wages’ means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer.”

The United States Supreme Court held that while board, rent, housing, or lodging are benefits with a present value that can be readily converted into a cash equivalent on the basis of their market values, the trust funds could not. The Court stated the employer’s cost is irrelevant because it does not measure the employee’s benefit nor his compensation. The employer’s cost does not measure the benefit to the employee because it would cost the employee substantially more to purchase those policies on the open market. The employer’s cost also does not measure compensation because it does not tie costs to the employee’s labor. The Court refused to value the funds by the employee’s expectation in them because the employee’s interest is speculative at best.

The Court also stated that while fringe benefits were virtually unknown when the Compensation Act was passed, they have since become quite common. Although the Act has been amended several times, the Court found no indication that Congress intended to expand the definition of wages to include fringe benefits. The Court also refused to expand the definition of wages because it would alter the balance between the employers and the employees and dramatically alter the cost factor on which employers have ordered their affairs.

The Ninth Circuit recently adopted the rationale of Morrison-Knudsen in West Winds. In that case, the Ninth Circuit, held the phrase “wages of the crew” under the Ship Mortgage Act of 1920, Section 30(M), 46 U.S.C. Section 953 (1976) did not include contributions to a trust fund to provide health, retirement, pension, training, vacation and similar benefits to the seamen. The Court noted the anomaly that money given to an employee which is spent on benefits is treated as “wages” while money given to a fund that bestows identical benefits upon the employee are not.

In this case the definition of “wages” in Section 39-71-116(20), MCA, is even more narrow than the definition in MorrisonKnudson. We specifically adopt the rationale of Morrison-Knudson and West Winds and hold the term “wages” under the Workers’ Compensation Act does not include employer contributions to funds that provide health or life insurance, retirement, training, vacation, pension or disability payment. We affirm the Workers’ Compensation Court on its finding that health insurance, retirement contributions and vacation time, which were earned pursuant to union contract, are excluded from the claimant’s compensation rate.

The second issue raised by Linton on appeal is whether the Workers’ Compensation Court erred in denying him temporary total benefits instead of awarding him permanent partial disability. Temporary total disability is defined in Section 39-71-116(19), MCA, (1983) as:

“. . . a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.”

The Workers’ Compensation Court held that two conditions must be satisfied in order to award temporary total benefits. First, a total loss of wages, and second, the claimant not be restored as far as the permanent character of his injuries permit. The Workers’ Compensation Court held:

“Claimant has satisfied the second condition by demonstrating by a preponderance of the medical evidence that there is room for improvement in his physical condition as far as tolerance for pain is concerned. However, he did not demonstrate a total loss of wages. There was no evidence presented to demonstrate that claimant had looked for other employment or that claimant was unable to perform other jobs.”

However, the Workers’ Compensation Court determined that Linton was entitled to permanent partial disability as defined in Section 39-71-116(12), MCA, (1983), as:

“. . . 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. Disability shall be supported by a preponderance of medical evidence.”

The Workers’ Compensation Court held:

“Claimant is medically as far restored as his injury will permit. His ongoing problem is an inability to tolerate the pain that accompanies use of his injured shoulder. For this reason, claimant should be referred to a pain clinic. Referral to a pain clinic is not inconsistent with an award of permanent partial disability benefits.”

Linton contends the lower court erred in requiring him to show a loss of earning capacity in order to get temporary total benefits, and that all that Section 39-73-116(19), MCA, requires for an award of temporary total disability is an injury that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of his injuries will permit. He also argues that he is not restored as far as the permanent character of his injuries will permit. The State Fund contends the Workers’ Compensation Court erred in awarding retroactive permanent partial benefits because he was not entitled to further benefits. The State Fund advances two arguments. First, the evidence showed the wage loss was not due to the injury but was caused by Linton’s misconduct which led to his being fired from his job. The Workers’ Compensation Court found Linton to be a credible witness. No findings or conclusions were made relevant to misconduct as the reason for Linton’s wage loss. Our decision in this case does not require a further discussion of this contention.

Second, the State Fund argues that the statutes required a showing by a preponderance of the evidence that the injury caused the wage loss and that Linton has failed to show there was any impairment that prevented his return to work.

We begin with whether Linton was entitled to benefits at all. The State Fund contends that Linton should not have been awarded retroactive benefits because he was fired due to misconduct: The State Fund relies on 2 Larson, Workmen’s Compensation Law, Section 57.64(a), (1985), which states:

“If the record shows no more than that the employee, having resumed regular employment after his injury, was fired for misconduct, with the impairment playing no part in the discharge, it will not support a finding of compensable disability.”

Linton resumed regular employment after the injury and worked two days then stopped because of pain. We affirm the court’s award of retroactive benefits.

Next the State Fund contends Linton did not show by a preponderance of the evidence an impairment that prevented his return to work. In reviewing workers’ compensation cases, the standard for factual findings is whether there is substantial evidence to support the court’s findings. Flansburg v. Pack River Co. (1977), 172 Mont. 163, 561 P.2d 1329. This is especially true in issues of credibility where the lower court has had the opportunity to observe the witnesses. Lamb v. Missoula Imports, Inc. (Mont. 1984), [211 Mont. 360,] 684 P.2d 498, 41 St.Rep. 1414. However, in reviewing deposition testimony we may examine the findings more closely because we are in as good a position to assess the evidence as is the lower court. Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140. There is substantial evidence in the record to show that Linton was unable to return to work.

In reviewing the record on appeal, we have found evidence, including medical evidence, that at the time this claim was filed Linton was still experiencing pain due to his injuries and has been unable to return to work. We hold that Linton is entitled to benefits. We therefore turn to the issue of the disability payments which he should receive.

The trial court concluded that the claimant must demonstrate an inability to “perform other jobs” before being entitled to temporary total benefits and awarded claimant permanent partial disability benefits under Section 39-71-116(12), MCA, (1983). (Cited previously)

We cannot agree. The applicable statute is Section 39-71-116(19), MCA, (1983), (cited previously), which defines temporary total disability.

Claimant is suffering from a condition resulting from an injury that has resulted in the total loss of his wages and, as the evidence shows, he is not yet as far restored as the permanent character of the injuries will permit. Linton cannot work because of the inability to tolerate the pain that accompanies the use of his injured shoulder. The Workers’ Compensation Court recognized that fact when it ordered the defendant to provide treatment by the pain clinic. After treatment and evaluation another determination can then be made as to whether claimant is eligible for permanent partial disability benefits under Section 39-71-116(12), MCA, or will continue to receive temporary total disability benefits under the provisions of Section 39-71-116(19), MCA.

As the facts are before this Court, the award of permanent partial benefits to claimant is in error as a matter of law. Temporary total benefits should be reinstated as of the date of Linton’s termination from work. Because of a significant time lapse between that date and this decision, we remand to the Workers’ Compensation Court to determine Linton’s present level of pain and ability to work.

The State Fund contends the Workers’ Compensation Court erred in awarding Linton the cost of a pain clinic because Linton had been referred to Dr. Tacke and the pain clinic by Linton’s lawyer and he had not sought the prior approval of the State Fund. Section 24.29.1403, A.R.M. states:

“The injured worker may select the physician to provide initial treatment. Authorization is required to change treating physicians

In Garland v. Anaconda Co. (1978), 177 Mont. 240, 244, 581 P.2d 431, 433, this Court stated “[t]he proper result of the claimant failing to comply with this rule is that the employer cannot be charged for the services of the unauthorized second doctor, however the Workers’ Compensation Court must consider the medical reports and diagnosis of the second doctor.” In this case the Workers’ Compensation Court obviously did consider the medical reports and diagnosis of the other doctors, and found Linton should be referred to a pain clinic. The court did not err in concluding that Linton should be referred to a pain clinic.

The final issue raised by Linton is whether the Workers’ Compensation Court erred in allowing State Fund to have private interviews and correspondence with Linton’s physicians. Linton contends that Section 26-1-805, MCA, which creates the doctor-patient privilege, and Japp v. District Court (Mont. 1981), [_ Mont. _,] 623 P.2d 1389, 38 St.Rep. 280, prevent the State Fund from having private interviews with the claimant’s physician. (Emphasis added.) We agree with the claimant.

The doctor-patient privilege is set forth in Section 26-1-805, MCA, (1983):

“Except as provided in Rule 35, Montana Rules of Civil Procedure, a licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”

Rule 35(b)(2), M.R.Civ.P. states, among other things, that the privilege is waived by commencing an action or asserting a defense which places in issue the mental or physical condition of a party to the action. The waiver does not apply to any treatment or condition not related to the action. In Japp, we ruled that the District Court did not have the power under the Rules of Civil Procedure to order private interviews between counsel for one party and a possible adverse witness in a contested case. The issue here is whether an employer or insurer can communicate with physicians in order to determine the nature and extent of a workers’ injury for purposes of compensating him for that injury. The Workers’ Compensation Act is withdrawn from private controversies because of the unique status of the Act as a humanitarian, quasi-judicial legislative creation of several special provisions applicable only to injured workers covered by the law. Section 50-16-311(2)(e), MCA, (1983), provides:

“(2) Consent is not required for release or transfer of confidential health care information:
“(e) to an employer as may be reasonably necessary in the administration of a group insurance plan or to a workers’ compensation insurer, the division of workers’ compensation, or the workers’ compensation judge, as is necessary in the administration of Title 39, chapters 71 and 72;”

This language is restated in Section 39-71-604(1), MCA, (1983), which provides in part:

“Where a worker is entitled to benefits under this chapter, the worker shall file with the insurer or the division all reasonable information needed by the insurer to determine compensability. It is the duty of the workers’ attending physician to lend all necessary assistance in making application for compensation and such proof of other matters as may be required by the rules of the division without charge to the worker. The filing of forms or other documentation by the attending physician does not constitute a claim for compensation.”

and Section 24.29.1404(3), A.R.M. which states:

“The rule of privileged communication is waived by the injured worker seeking benefits under the workers’ compensation or occupational disease acts.”

Workers’ Compensation Court rules provide for an exchange of all medical records prior to trial Section 2.52.317, A.R.M. Depositions, interrogatories and motions to produce are available. Sections 2.52.322 to -324, A.R.M. Further, the insurer may have the claimant examined by a physician of his choice. Section 39-71-605, MCA, (1983). What the Act does not contemplate are private interviews between the employer or insurer without the knowledge or opportunity of the claimant to be present. Claimant does not argue, and cannot argue, for a physician-patient privilege. Clearly, the insurer or employer is entitled to all medical information pertaining to claimant’s claim through the usual methods of discovery as well as exchanges between the parties and personal interviews with those who have treated the claimant.

A claimant waives any privilege of confidentiality and health care information which is relevant to the subject matter involved in his claim. See Bowen v. Super Valu Stores, Inc. (Mont. 1987), [229 Mont. 84,] 745 P.2d 330, 44 St.Rep. 1799.

However, a personal interview between defendant insurance company and claimant’s treating physician must be done openly to allay any suspicion that there is something available to one party and not to the other.

For the reasons stated we reverse the Workers’ Compensation Court on the issue of private interviews.

Respondent cross-appeals and raises three issues. First, whether the Workers’ Compensation Court improperly awarded the claimant retroactive permanent partial disability benefits despite the testimony of two neurologists, two orthopedic surgeons and the treating chiropractor that the claimant was able to continue working as a water meter reader for the City of Great Falls. Dr. Tacke, a rehabilitation specialist, examined Linton after he attempted to return to work. Dr. Tacke recommended that Linton receive additional treatment at the pain clinic. Again, we conclude that there was substantial credible evidence for the Workers’ Compensation Court’s award of disability benefits.

Next, respondent contends the court improperly ordered the State Fund to pay expenses for a pain clinic which was not authorized by the respondent. We have already ruled on this issue.

Finally, respondent argues the Workers’ Compensation Court erred in awarding claimant his attorneys fees. The court found that the claimant was entitled to attorneys fees in the successful pursuit of this matter. There is substantial evidence in the record to support this finding and we will not disturb it on appeal. We remand the case to the Workers’ Compensation Court for determination of the amount of attorneys fees due.

Affirmed in part, reversed in part and remanded with instructions.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALFRED VERNON OWENS, Defendant and Appellant.
    No. 87-23.
    Submitted on Briefs Sept. 25, 1987.
    Decided Jan. 15, 1988.
    748 P.2d 473.

      Alfred Vernon Owens, pro se.
    Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant appeals from an order of the District Court, Thirteenth Judicial District, Yellowstone County, designating appellant a dangerous offender pursuant to Section 46-18-404, MCA. We affirm.

Appellant brings two issues on appeal.

1. Did the District Court have jurisdiction to render a dangerous offender designation on a judgment and sentence imposed and executed 106 months earlier?

2. Did the District Court subject the appellant to double jeopardy by increasing his sentence with a dangerous offender designation?

On November 27 and 28, 1977, the defendant was involved in the robbery homicide of a man in Yellowstone County. The defendant’s brother robbed the deceased in the presence of the defendant in his motel in Laurel. The defendant then drove the deceased and defendant’s brother to an isolated area where the deceased was shot twice by the defendant’s brother. Both brothers returned to Laurel and removed several items from the deceased’s car.

Appellant-defendant Owens was convicted of mitigated deliberate homicide and robbery and was sentenced to 40 years imprisonment on each count to run concurrently. The order dated June 15, 1978 did not designate him either as a nondangerous or dangerous offender. On January 16, 1987, the appellant initiated a habeas corpus proceeding in which he challenged Warden Henry Risley’s treatment of him as a dangerous offender for parole purposes. The petition was initially dismissed on procedural grounds but upon reconsideration this Court remanded the matter to the sentencing court for findings and clarification of the dangerous designation. After a hearing, the District Court ordered that appellant be designated a dangerous offender and filed findings of fact and conclusions of law to that effect. This was deemed an order nunc pro tunc by this Court. From this order the appellant appeals.

Appellant contends that the District Court lacked proper jurisdiction to designate the appellant as dangerous nearly 10 years after he had been sentenced. He argues that the designation augments his valid 1978 sentence and that, in any event, the court had no power to modify it after the final judgment had been filed. See Wilkinson v. State (1983), 205 Mont. 237, 667 P.2d 413, 414, 40 St.Rep. 1239, 1241; State v. Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711.

Although appellant correctly states the law, it does not apply in a case where the Supreme Court has remanded a matter to a district court for clarification. In each of the cases cited by appellant the court had attempted to modify a judgment sua sponte after it had been filed. This is not the case here. A district court must follow the appellate court’s mandate on remand. State, Etc. v. Dist. Ct. of Nineteenth, Etc. (1979), 184 Mont. 346, 349, 602 P.2d 1002, 1004; In Re Stoian’s Estate (1960), 138 Mont. 384, 390, 357 P.2d 41, 45. On remand the court has only so much jurisdiction as it is given by mandate of the appellate court. By remanding to the District Court, this Court held that the District Court had jurisdiction to act in this matter. In Re Stoian’s Estate, 357 P.2d at 47.

The appellant argues next that his sentence did not include or imply a designation of dangerous and therefore he should be treated as nondangerous. Thus any attempt by Warden Risley to treat him otherwise is in effect lengthening his sentence. A court order now designating him as dangerous augments his prior valid sentence constituting double jeopardy. The State, on the other hand, argues that his sentence, by its silence, gives a presumption of the dangerous designation so no double jeopardy is implicated by the District Court’s clarification.

Double jeopardy can occur when a defendant’s punishment is increased after a valid sentence is imposed. United States v. Best (9th Cir. 1978), 571 F.2d 484, 486; Borum v. United States (D.C. Cir. 1967), 409 F.2d 433, 440.

We hold, however, that no double jeopardy occurred in the appellant’s case because the District Court simply clarified its earlier sentence to conform with what it originally intended.

It is inherent in the District Court’s power to correct clerical errors in its own judgments in order to make the record speak the truth as to what was actually decided. Dahlman v. Dist. Ct., Seventeenth Jud. Dist. (Mont. 1985), [215 Mont. 470,] 698 P.2d 423, 425, 42 St.Rep. 550, 553. The error must be apparent on the face of the record to insure that the correction does not in effect set aside a judgment actually rendered nor change what was originally intended. State ex rel. Kruletz v. District Court (1940), 110 Mont. 36, 40, 98 P.2d 883, 885.

It is clear from this Court’s review of the record that the District Court intended to designate the defendant as dangerous. The statute applicable to this case is Section 46-18-404(1), MCA (1978), which read as follows:

“(1) The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under Part 2 of Chapter 23 if:
“(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; or
“(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.”

The presentence report shows that the defendant had been convicted of felony burglary in Oregon within the last five years preceding the homicide and had several other convictions including one for statutory rape in Texas and one for lust under 14 years in California.

That the sentencing court contemplated a dangerous offender designation is evident from the following exchange which took place at the sentencing:

“MR. HANSER: Your Honor, does the Court want a specific finding that the defendant is a dangerous offender?
“THE COURT: Yes. I think that follows in the statute.
“MR. HANSER: I believe it does, Your Honor.
“THE COURT: But you can do that if you want to.”

Through error or oversight such a designation was omitted from the written judgment. The District Court held a hearing to enable it to clarify its earlier judgment. It entered findings of fact and conclusions of law to the effect that the defendant was not entitled to a nondangerous designation and deemed him dangerous for purposes of parole. These findings are well supported by the record.

This Court does not attempt to pass upon the validity of the appellant’s argument that no designation under the former statute creates a presumption of nondangerousness. It is unnecessary to address this issue because of the District Court’s nunc pro tunc order.

Accordingly, we affirm the District Court.

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


author: MR. CHIEF JUSTICE TURNAGE MR. CHIEF JUSTICE TURNAGE

text:
    In the Matter of the ESTATE OF WILBUR EDWARD SMITH, Deceased. ROGER H. SMITH, Plaintiff and Respondent, v. The ESTATE OF WILBUR E. SMITH, deceased, Harriet E. Smith as Personal Representative and against Harriet E. Smith as an individual; Roger Wilbur Smith and Douglas Lance Smith, Defendants and Appellants.
    No. 87-25.
    Submitted on Briefs Nov. 10, 1987.
    Decided Jan. 15, 1988.
    Rehearing Denied Feb. 16, 1988.
    749 P.2d 512.

      H.A. Bolinger argued, K. Robert Foster, Bozeman, for defendants and appellants.
    Kirwan & Barrett, Stephen M. Barrett argued, McKinley Anderson, Jim Serenar, Bozeman, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff and respondent Roger H. Smith brought an action alleging partnership against the estate of Wilbur E. Smith (estate). Following jury trial, the trier-of-fact found that a partnership existed and held that one-half of various ranch and personal property including joint tenancy property belonged to plaintiff Roger H. Smith.

We reverse.

Nine issues are presented for our review. Because we are reversing, we limit our review to the following issue:

Did the District Court err when it denied the estate’s motion for a directed verdict on the partnership issue?

Wilbur Smith was born in Bozeman in 1895. At the age of five years, Wilbur was adopted by his deceased mother’s sister, Annie Smith, and her husband, Pierre Everich Guanus Smith or “Peg” Smith. Wilbur married Virginia Smith in 1926. In 1928, Wilbur’s only child, Roger H. Smith, was born. Wilbur and Virginia divorced in 1936. They remarried in 1942 after signing an antenuptial agreement. Virginia died in 1946.

Wilbur married Harriet Smith in 1949. Harriet had two sons from a previous marriage, Roy and Gordon Boe. Roy is now deceased. Prior to their marriage, Wilbur and Harriet Smith executed an ante-nuptial agreement.

Wilbur inherited a life estate in the Harry Smith Ranch from his mother, Annie, subject to Roger’s remainder interest. The Harry Smith Ranch (HSR) is a 240-acre ranch located within the Bozeman city limits. Wilbur operated HSR as a dairy until 1960. Roger farmed HSR after 1960 and received crops or cash rent as payment. In January 1982, Wilbur conveyed his life interest in HSR to Roger contingent upon Roger conveying half interest to Roger’s wife, Rose. Subsequently, Roger subdivided HSR for sale as residential and commercial property.

In 1931, Wilbur inherited the Peg Smith place from his stepfather. The Peg Smith place is a 200-acre ranch located one-half mile west of the Harry Smith Ranch. After his parents’ deaths, Wilbur purchased the following properties:

1. Elk Creek Ranch or “Madison” (1920 acres and 2000 acres of state leases) is located approximately thirty-five miles west of Bozeman near the Madison River. Roger Smith lived on Elk Creek Ranch and farmed the property from 1954 through 1960 and from 1973 through 1979.

2. Madison Valley Ranch (900 acres with 1280 acres of state leases) is located a few miles north of Elk Creek Ranch. Madison Valley Ranch was farmed by Elmer Satre and later by Norman Bryson from 1947 until 1979.

3. Harris Ranch (640 acres) was originally leased by Wilbur in 1953 and purchased by him in 1958. At the time of the purchase, Wilbur advised Roger that he would have one-half interest in this ranch. In 1965 Wilbur deeded a one-half interest to Roger. Wilbur devised his one-half interest by will to Roger’s son, Roger Wilbur Smith.

4. The Harman Ranch (240 acres) is adjacent on the east to the Harry Smith Ranch and on the west to the Peg Smith Ranch. It was purchased by Wilbur in 1946. Leo Freeland farmed the Harman Ranch on a crop share or cash rent basis. Prior to his death, Wilbur subdivided and sold 80 acres of the Harmon ranch.

5. Summit Valley Ranch (375 acres) was deeded by Wilbur to his first wife, Virginia, in 1936 upon their divorce. Virginia devised her interest by will to Wilbur for life with a remainder to Roger. Roger took possession on Wilbur’s death. Howard Hedges farmed the Summit Valley Ranch on a crop share or a cash rent basis.

6. The Norine Building was deeded to Wilbur by Hedley Norine in 1955 as a mortgage to secure a $30,000 loan. Norine periodically borrowed additional money from Wilbur. Subsequently, Norine released his interest in the building to Wilbur in satisfaction of a debt.

7. The Armstead Ranch was purchased jointly by Wilbur and Carl Richter in 1958. The ranch was sold in 1964.

8. The junkyard consists of about five acres located approximately ten miles west of Bozeman. Wilbur purchased the junkyard in 1963. The contract was not fully paid at Wilbur’s death and subsequent payments have been made by the personal representative.

Wilbur’s inventory and appraisal listed the following assets:

Real Property
Elk Creek Ranch $333,354
Norine Building 310,030
Junkyard 72,911
Beartrap 18,750
Madison Valley Ranch 144,750
Harris Place 46,650
Peg Place 600,000
Harmon Place 584,500
Stocks & Bonds 109,842
Mortgages, Notes & Cash 35,402
Jointly-Owned Property (Held in the name of decedent and his spouse,
Harriet E. Smith, as joint tenants with right of survivorship) (Taxable interest or one-half) 260,268
Other Misc. Property 43,550
Transfers during decedent’s life none
Powers of Appointment none

Wilbur Smith executed his will on March 18, 1980. Wilbur died on March 21, 1983. Section 9 of Wilbur Smith’s will states:

“I have intentionally left no part of my estate or property to my son Roger H. Smith, for the reason that upon my death my life estate will terminate and end in approximately 240 acres of land adjoining the city limits of Bozeman, Montana, and a farm in Madison County south of Cardwell, Montana, so that said lands will be owned free and clear of encumbrances and which have a value in excess of the requirements of he and his wife. [Emphasis added.]”

Plaintiff Roger H. Smith was born in 1928. Roger married Rose [maiden name also Smith] in 1948. In 1951 Roger borrowed $3,000 to begin operating as a tenant on the Peg Smith Ranch. Roger was hailed out in August 1951. Roger left Bozeman and lived and worked in Trident, Montana, and later at the Canyon Ferry Dam. Roger also worked as a carpenter in Billings. In 1952 Roger returned to Bozeman because he was out of work due to a union strike. The following year Roger moved to the Harris Ranch. In 1954 Roger moved to the Elk Creek Ranch where he resided until 1960.

In 1960 Roger moved to the Harry Smith Ranch. In 1964, Roger leased the Wellington D. Rankin Ranch near Ringling. He farmed the Rankin property for three or four years.

During the 1960s, Roger and Wilbur formed a company called Northwest Merchandising, which trucked and sold grain, salt and meal for feeding, concentrates, fertilizer, lumber and other goods. Roger testified that Northwest Merchandising was later expanded to include a used automobile and truck dealership. Wilbur Smith financed Northwest Merchandising.

In 1968, Roger formed a partnership with his wife’s two brothers, Joseph and Bill Smith. The partnership, called Smith & Smith Construction, built houses and fences. Wilbur financed the company until it was dissolved in 1972.

Roger returned to the Elk Creek Ranch in 1973. He continued to farm the Elk Creek property until his retirement in 1979.

Roger and Wilbur also operated a cattle buying and trucking operation. In an intermittent fashion, Roger and Wilbur purchased cattle and subsequently sold the cattle for profit. Wilbur financed nearly all of the cattle purchases.

Except for a brief and unsuccessful attempt at a joint bank account, Wilbur Smith managed all funds. Wilbur was the “banker,” receiving and distributing or reinvesting all proceeds and profits.

Roger brought this action demanding:

(1) A determination that an oral contract to make a will existed between Wilbur and Roger and that all estate properties were to be transferred to Roger upon Wilbur’s death;

(2) An order determining the will a nullity due to fraud, mistake, undue influence, lack of testamentary capacity or forgery;

(3) A determination that the estate property was held in a constructive or resulting trust;

(4) A determination of the existence of a partnership on the estate properties;

(5) An accounting of the profits and distribution of partnership assets;

(6) A determination of the value of Roger’s services to the estate;

(7) An accounting of Wilbur’s use of property and proceeds belonging to Roger.

Roger also demanded appointment of a special administrator and that a $1,000,000 bond be posted by the personal representative.

By the close of the plaintiffs case, all issues except partnership had been dismissed. Following presentation of the defense, the District Court submitted a special interrogatory to the jury. The special interrogatory contained questions pertaining to partnership and partnership assets. The jury reviewed nine separate properties as potential partnership property. The jury found that three parcels of real property belonged to the partnership: (1) the Elk Creek Ranch, (2) the Norine Building, and (3) the “junkyard.” Additionally, the jury found that one-half of joint tenancy property, held in the names of decedent and his spouse, Harriet E. Smith, as joint tenants with right of survivorship, was partnership property.

Issue

Did the District Court err when it denied the estate’s motion for a directed verdict on the partnership issue?

Following presentation of Roger Smith’s case, defendant moved for a directed verdict on the partnership issue. The District Court denied the estate’s motion. The court did, however, grant the estate’s motion for a directed verdict that Roger Smith had failed to present sufficient evidence of an oral promise to convey real or personal property.

A partnership is defined in Section 35-10-201(1), MCA, as “an association of two or more persons to carry on as co-owners as business for profit.” The elements necessary to establish a partnership are found in Bender v. Bender (1965), 144 Mont. 470, 480, 397 P.2d 957, 962:

“To establish ... a partnership, it is necessary to determine the intent of the parties: such business relationships arise only when the parties intend to associate themselves as such. There must be some contribution by each co-adventurer or partner or something promotive of the enterprise. There must be joint proprietary interest and a right of mutual control over the subject matter of the enterprise or over the property engaged therein, and there must be an agreement to share the profits. [Citations omitted.] The intention of the parties has to be clearly manifested, [citing cases] and must be ascertained from all the facts and circumstances and actions and conduct of the parties. [Citations omitted.]”

The burden of establishing a partnership is upon the person claiming a partnership exists. First National Bank of Twin Bridges v. Sant (1973), 161 Mont. 376, 386, 506 P.2d 835, 841. No person can become a partner without the consent of all partners. Section 35-10-401(7), MCA; Pulliam v. Pulliam (Mont. 1987), [226 Mont. 24,] 733 P.2d 1299, 1300, 44 St. Rep. 483, 485. The existence of a partnership depends upon the intention of the parties. Intent must be ascertained from all the facts, circumstances, actions and conduct of the parties. Gaspar v. Buckingham (1944), 116 Mont. 236, 246, 153 P.2d 892, 896.

The estate contends that Roger Smith failed to provide sufficient evidence of (1) commencement of the partnership; (2) intent to form a partnership; (3) an agreement to share profits and losses; and (4) Roger’s right to control partnership assets.

Roger Smith contends that ample evidence was presented to support the District Court’s denial of the estate’s motion for a directed verdict. After careful review of the record, we summarize testimony of the following witnesses. Raymond S. White, former Gallatin County Assessor, testified that he felt Roger and Wilbur were partners.

The estate objected to White’s nonexpert opinion on the partnership issue. The District Court, over the estate’s objection, allowed White and numerous other lay witnesses to give opinion testimony on the partnership issue.

Roger Smith’s next witness, W.W. Lessley, Chief Water Judge of the Montana Water Court, testified that Wilbur Smith was a longtime neighbor and resident of the Harry Smith Ranch. Lessley stated that Wilbur and Roger worked “interchangeably” on water issues concerning the Harry Smith Ranch. Wilbur owned the Harry Smith Ranch. Roger held a remainder interest in the ranch. Judge Lessley testified that Wilbur and Roger worked together; however, he did not testify that a partnership existed between Wilbur and Roger Smith.

Barbara Chapman, an employee of the Department of State Lands, surface leasing bureau, testified that although Wilbur was the lessee of record, both Wilbur and Roger signed the seed and crop reports required by the State. C.E. Stephenson, an employee of Owenhouse Hardware Company, testified that Roger and Wilbur maintained a mutual charge account at the store. Ken Graber, an outfitter and friend of Roger, testified that in his opinion, Roger and Wilbur were partners. Thomas J. Kamp, owner of Kamp Implement Company in Belgrade, stated that he felt Wilbur and Roger were partners in the Elk Creek Ranch.

R.G. Roberts, Roger’s accountant from 1953 through 1969, testified as follows. Roberts felt Roger and Wilbur were partners. Roberts’ understanding of a partnership was “a partnership would be two or more people involved, making decisions together and handling the monies together and buying and selling together.” However, Roger Smith did not mention to Roberts, Roger’s accountant of sixteen years, that he and Wilbur were partners. Further, Roberts testified that no real property or personal property was held as partnership assets and no partnership tax returns were ever filed.

Jack Cain, a long-time friend of Roger’s, testified that he, Wilbur and Roger entered into a number of joint ventures, involving automobile parts and salvage. Cain also stated that he felt Wilbur and Roger were partners.

Doug Smith, son of Roger Smith, testified that he also felt Wilbur and Roger were partners. Doug based his testimony on Wilbur and Roger’s intermittent cattle purchases. Doug testified that he was very close to his grandfather. However, Doug stated that neither his father Roger nor his grandfather Wilbur ever mentioned that they were partners.

Roger testified that he felt he and Wilbur had been partners since 1951. However, Roger did not present evidence that Wilbur intended to enter the partnership. Bender v. Bender, 144 Mont, at 480, 397 P.2d at 962. Neither Roger nor Wilbur ever mentioned “partner” or “partnership” in over thirty years of alleged partnership. Further, Wilbur indicated in his will that he did not feel Roger was entitled to any of the alleged partnership assets.

Roger responds by claiming that his family did not talk about legal relationships such as partnership and transfer of real property ownership. Roger further contends that partnership and transfer of real property ownership was “understood” but unspoken. However, Roger’s testimony is not supported by the record and is contradicted by Wilbur’s 1965 title transfer of the Harris Place to Roger.

Roger testified that he periodically received monies for working on the Elk Creek Ranch and other property owned by Wilbur. However, with the exception of cattle purchases, Roger did not present evidence that he and Wilbur divided partnership profits and losses. Bender, supra. A review of Wilbur’s voluminous business records does not reveal division of profits and losses. Wilbur’s business records and Roger’s testimony merely show that Roger was employed by Wilbur and that he and Wilbur engaged in a number of joint ventures involving cattle, trucking, and automotive salvage. Section 35-10-202(4), MCA. Clearly, Roger’s involvement in the above-mentioned joint ventures did not create a partnership.

Wilbur held legal title to nearly all alleged partnership assets, including real property and state land leases. Roger did not present evidence that he had an equal right of control over these alleged partnership assets. See, Rae v. Cameron (1941), 112 Mont. 159, 169, 114 P.2d 1060, 1064. Additionally, Roger testified that Wilbur financed nearly every joint venture and all real property purchases.

Roger also failed to present evidence of an oral or written partnership agreement or substantial credible evidence of an implied partnership agreement. Rae, supra. No partnership name or partnership bank account was established or maintained. No partnership income tax returns were prepared or filed. Both Wilbur and Roger’s annual income tax returns showed income and expenses without reference to a partnership. Neither Wilbur or Roger used the words “partner” or “partnership” in any conversation, transaction or financial record. In summary, the record is bare of substantial, credible evidence that would support a jury finding of oral, written or implied partnership. This is especially relevant in light of Wilbur’s voluminous and detailed financial records.

Clearly, the evidence presented does not support a finding, as a matter of law, that Roger and Wilbur Smith were engaged in a partnership. Sections 35-10-201 and -202, MCA. See, Bender v. Bender, 144 Mont. at 480, 397 P.2d at 962.

As stated earlier, the District Court, over defendant estate’s objection, allowed numerous nonexpert or lay witnesses to express their opinions as to whether they felt Roger and Wilbur Smith were partners or engaged in a partnership. In doing so, the court allowed nonexpert witnesses to state their opinions on the ultimate jury question. Generally, a witness is not permitted to state a conclusion or give an opinion of law. Rule 701, M.R.Evid. Bean v. Diamond Alkali Company (1969), 93 Idaho 32, 454 P.2d 69, 71. Testimony of nonexpert witnesses is confined to matters of fact, as distinguished from matters of law. Olson v. Coats (1986), 78 Or.App. 368, 717 P.2d 176, 178. The District Court is required to instruct on the law, while the trier of fact is required to determine the facts from the evidence presented and draw its conclusions. Sections 26-1-201 and -202, MCA.

The court erred when it allowed, over defendant’s objection, non-expert opinion testimony on the partnership issue. Defendant was prejudiced when the above-mentioned testimony was repeatedly presented to the jury. Additionally, defendant was prejudiced because the improper testimony concerned the sole and ultimate jury question. See, Commission Comments, Rule 704, M.R.Evid. We hold the nonexpert partnership testimony prejudiced defendant and invaded the province of the jury.

A review of the record reveals that when the improper testimony is excluded, the record is void of substantial credible evidence which might support a finding of partnership. Accordingly, we vacate the judgment and remand to the District Court with instructions to dismiss.

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

ORDER ON REHEARING

MR. CHIEF JUSTICE TURNAGE

delivered the Order.

On February 3, 1988, respondent Roger H. Smith petitioned for rehearing pursuant to Rule 34, M.R.App.P. Roger Smith raises the following grounds for rehearing:

This case must be remanded for a jury determination of the amounts due Roger Smith as an “employee,”

This action must be remanded to the trial court for an accounting as to those joint ventures identified by this court, [and]

The “opinion” testimony objected to be this court was properly admitted.

After review of the record and the respective parties’ briefs and rehearing petitions, we hold that our January 15, 1988, opinion properly addresses respondent’s rehearing grounds 2 and 3. Accordingly, we decline to reconsider the above-mentioned grounds in respondent’s rehearing petition.

Respondent contends that this cause must be remanded to “determine amounts due Roger Smith as an employee.” We agree that this issue must be determined by the District Court.

In our January 15, 1988, opinion, we stated: “By the close of the plaintiffs case, all issues except partnership had been dismissed.” After further review of the record, we note the jury’s special interrogatory which provides in pertinent part:

“6. Did a partnership exist between Wilbur E. Smith and Roger H. Smith regarding the ‘Smith business.’
“Answer Yes_No_
“If you answered Question #6 ‘no’; proceed to questions #9.”

The jury answered “yes” to special interrogatory question #6. Because the jury answered “yes” to question #6, the jury was not required to address special interrogatory questions #9 and #10.

Special interrogatory questions #9 and #10 provide:

“9. Did Roger H. Smith provide goods and services for the benefits, use or improvement of the Wilbur E. Smith properties over his lifetime, for which he has not been compensated?
“Answer Yes_No_
“If you answered Question #9 ‘yes,’ proceed to Question #10. If you answered Question #9 ‘no,’ go to the end of the question and sign the verdict form.
“10. What is the reasonable value of any such services, for which Roger H. Smith has not been compensated?
“Answer $_

As stated earlier, the jury found that a partnership existed between Roger and Wilbur. The jury was not required, and therefore did not address, Roger Smith’s claim for services. In our January 15, 1988, opinion, we held the District Court erred when it denied the estate’s motion for a directed verdict on the partnership issue. We vacated the judgment and remanded the cause to the District Court with instructions to dismiss. In doing so, we failed to address respondent’s claim for “the reasonable value of any such services for which Roger H. Smith has not been compensated.”

IT IS ORDERED that this Court’s opinion of January 15, 1988, is hereby modified, for the reasons set forth above, to remand this matter to the District Court with instructions to hear respondent’s claim for an amount if any due for the reasonable value of Roger H. Smith’s services, within the applicable statute of limitations.

As so modified, this Court’s opinion of January 15, 1988, is affirmed. Let remittitur issue forthwith.

DATED this 16th day of February, 1988.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Fred J. Weber, Justice

s/John C. Sheehy, Justice

s/William E. Hunt, Sr., Justice

s/L.C. Gulbrandson, Justice

s/R.C. McDonough, Justice