source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    IN RE THE MARRIAGE OF ROBERT DOWD DOOLITTLE, Petitioner and Appellant, and PRISCILLA E. DOOLITTLE, Respondent and Respondent.
    No. 93-561.
    Submitted on Briefs April 17, 1994.
    Decided May 17, 1994.
    51 St.Rep. 450.
    875 P.2d 331.
    265 Mont. 168.

      For Petitioner and Appellant: Gary A. Crowe, Kalispell.
    For Respondent: Randy K. Schwickert, Whitefish.
   JUSTICE GRAY

delivered the Opinion of the Court.

Robert Dowd Doolittle appeals from those portions of the Findings of Fact, Conclusions of Law, and Decree of Dissolution of the Eleventh Judicial District Court, Flathead County, which relate to the award of maintenance to Priscilla E. Doolittle. We affirm.

Robert Dowd Doolittle (Robert) filed a petition for dissolution of his twenty-five year marriage to Priscilla E. Doolittle (Priscilla). The District Court appointed a Special Master pursuant to Rule 53, M.R.Civ.R Robert and Priscilla subsequently entered into a written property settlement agreement which resolved most of their differences. At the time of the hearing before the Special Master, the parties resolved an additional issue.

The sole issue remaining for determination by the Special Master was whether Priscilla was entitled to maintenance and, if so, the duration and amount of that maintenance. The Special Master determined that Priscilla lacked sufficient property to provide for her reasonable needs and, without retraining, was unable to support herself through employment. The Special Master recommended that the District Court award Priscilla maintenance in the amount of $250 per month for three years or until, with due diligence, she completed the necessary education for a degree in certified public accounting.

The Special Master’s Report was filed and Priscilla moved the District Court to adopt it. Robert filed an objection to the Special Master’s findings relating to Priscilla’s inability to support herself due to poor health, on the basis that the findings relied solely on hearsay testimony admitted over objection. His supporting brief expanded the bases of his objection somewhat. The District Court determined that Robert failed to establish that the Special Master’s findings were clearly erroneous and adopted the Special Master’s findings and conclusions.

With regard to the maintenance issue, the court found that Priscilla met the prerequisites of § 40-4-203(1), MCA, and, therefore, concluded that she was entitled to maintenance. The substance of the maintenance provision states as follows:

8. [Robert] is required to provide spousal maintenance to [Priscilla] in the amount of $250.00 per month for a period of three (3) years or until [Priscilla] completes with due diligence the necessary education for a degree in Certified Public Accounting. Said sum shall be payable beginning with the month of September, 1993, and payable on the 10th day of each month thereafter.

Robert appeals.

Robert asserts numerous errors in the Special Master’s findings, as adopted by the District Court. Priscilla responds that he raised only one objection to those findings when the Special Master’s report was filed and, therefore, that only one issue is properly before us.

Rule 53(e)(2), M.R.Civ.P., is clear that, in nonjury actions such as this, “the [trial] court shall accept the master’s findings of fact unless clearly erroneous.” The burden of challenging the master’s findings is on the party objecting; the related burden of establishing that a finding is clearly erroneous also is on the party objecting. The intent — implicit, but clear — of Rule 53(e)(2), M.R.Civ.R, is that all objections to a master’s report must be timely made in a party’s written objections. In the future, objections not made to the district court at that juncture will not be entertained by this Court on appeal. Due to the absence of earlier interpretations of Rule 53(e)(2), M.R.Civ.P., however, we will address all of the issues Robert raises on appeal.

Did the District Court err in determining that Priscilla met the threshold requirements of § 40-4-203(1), MCA?

This Court will not reverse a district court’s award of maintenance unless the court’s findings of fact are clearly erroneous. In re Marriage of Zander (1993), 262 Mont. 215, 864 P.2d 1225, 1231. As a threshold matter, Priscilla is entitled to maintenance only if the District Court properly found that she lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. See § 40-4-203(1), MCA. Robert asserts error regarding both of these threshold requirements.

Robert contends that, in determining Priscilla’s lack of sufficient property to provide for her reasonable needs, the District Court erred in not making a finding of fact of the value of Priscilla’s one-half share of his retirement benefit accumulated during the marriage. The parties had stipulated to this division of Robert’s employer-sponsored retirement benefits. Robert argues that the amount of Priscilla’s retirement share must be considered by the court in determining whether Priscilla has sufficient property to provide for her reasonable needs.

Under the circumstances before us, Robert’s argument borders on the frivolous. The retirement benefit to be received by Priscilla in the future is totally irrelevant to her present ability to provide for her reasonable needs. It is “property” she does not currently have and, therefore, cannot contribute toward her living expenses. We conclude that the District Court did not err in failing to consider Priscilla’s future share of Robert’s retirement benefit in determining whether she has sufficient property to provide for her reasonable needs.

With regard to the court’s findings relating to Priscilla’s inability to support herself through appropriate employment, Robert argues generally that there is no admissible evidence of record to support the findings, because the only evidence submitted by Priscilla was her own testimony. This argument also borders on the frivolous. A party’s testimony as to work experiences, living expenses, health history and physical abilities, based as it is on personal knowledge, is relevant and admissible. See Rules 401 and 402, M.R.Evid.

Robert’s first specific argument in this regard is that the Special Master’s findings that Priscilla’s poor health precluded her from securing employment are based on inadmissible hearsay medical evidence to which he objected. We observe at the outset that Robert’s reading of the Special Master’s findings is overly broad; the only former employment of Priscilla’s which the master found precluded by her poor health and related limitations is waitressing.

The record reflects two objections at the beginning of Priscilla’s testimony on direct examination about her health and medical history:

Q: Could you describe to the court what your current health is as well as a brief history of your health?
A: Last year I was diagnosed with breast cancer.
[By Robert’s counsel]: Objection, Your Honor. She can testify as to her personal knowledge with respect to her health. If she’s going to testify as to what a physician or doctor has told her regarding her health, we would like to have the physician or doctor present for cross-examination.
Q: Describe your health history to the Court.
A: Okay. Last year I was diagnosed —
[By Robert’s counsel]: Objection, Your Honor. When she refers to “Diagnosis,” she’s referring to a doctor’s statement regarding her health. I want her testimony to be limited to what she personally knows regarding her health, not what a physician has told her, a physician who is not in this court and not available for cross-examination.

The Special Master overruled both of the objections, but suggested that Priscilla rephrase her statements in testifying about her health.

Priscilla’s testimony about her health and medical history continued thereafter without further reference to any “diagnosis” or statements made to her by physicians, and without objection. The testimony was limited to her personal knowledge.

She recounted that she had developed breast cancer in 1992, and had undergone surgery and chemotherapy. She also testified that she had had breast cancer, surgery and chemotherapy ten years earlier and that the lymph nodes underneath both of her arms had been removed. She testified that, as a result, she is unable to do heavy lifting and must avoid burns and extensive scratches. This relevant and uncontroverted testimony, to which no objection was made and no cross-examination was directed, provided a sufficient basis for the finding that Priscilla’s health-related limitations precluded her from engaging in her former occupation of waitressing.

Robert’s second specific argument relating to the findings of Priscilla’s inability to support herself is that the Special Master erred in giving the testimony of his vocational rehabilitation expert, Charles Schloss, little weight. In opposition to Priscilla’s testimony that she would be unable to support herself through her former occupations of bookkeeper, legal secretary, assistant restaurant manager and real estate agent, Schloss testified that Priscilla needed no further training to be employable. Robert apparently contends that Schloss’ testimony mandated a finding that Priscilla was able to support herself and, therefore, the findings to the contrary were clearly erroneous. We disagree.

Schloss’ testimony was accorded little weight because of its reliance on Montana Department of Labor information obtained prior to November 1991 regarding wage ranges and availability of jobs; in other words, the information was more than one and one-half years out of date at the time of the hearing in this case. Further, the Special Master found that Schloss reached his conclusions about Priscilla’s skills and employability without interviewing her or considering her physical limitations, relative inexperience and history of unemployment in recent years.

Here, the record contains conflicting testimony from Priscilla and Schloss on the issue of Priscilla’s ability to support herself. The Special Master, having heard and evaluated the testimony and observed the witnesses’ demeanor, accorded Schloss’ testimony little weight. We will not substitute our judgment for that of the trier of fact regarding the credibility of witnesses or the weight to be given to their testimony. Matter of B.T.B. (1992), 254 Mont. 449, 454, 840 P.2d 558, 560-61.

We conclude that the record contains substantial credible and admissible evidence to support the findings that Priscilla lacked sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment; nor are those findings otherwise clearly erroneous. We hold, therefore, that the District Court did not err in determining that Priscilla met the threshold requirements of § 40-4-203(1), MCA, and was entitled to maintenance.

Did the District Court err in determining the amount and duration of maintenance?

As set forth above, the court awarded Priscilla maintenance of $250 per month for three years or until, with due diligence, she completes the necessary education for a degree in certified public accounting. Robert argues that the District Court improperly applied both the “standard of living” factor in § 40-4-203(2)(c), MCA, and the “time necessary to acquire sufficient education ... to find appropriate employment” factor in § 40-4-203(2)(b), MCA.

Robert’s argument regarding the “standard of living” factor is that the amount of maintenance awarded was based on Priscilla’s testimony that she desired a degree in certified public accounting in order to achieve a standard of living higher than she enjoyed during the marriage. According to Robert, awarding maintenance on this basis is error because In re Marriage of Madson (1978), 180 Mont. 220, 590 P.2d 110, and In re Marriage of Skinner (1989), 240 Mont. 299, 783 P.2d 1350, define “appropriate employment” under § 40-4-203(2), MCA, in relation to the standard of living achieved by the parties during marriage.

The cases cited by Robert have no application here because Robert mischaracterizes Priscilla’s testimony about the parties’ standard of living and her purpose in desiring the accounting degree. Priscilla’s testimony that she “wanted a better standard of living^’ related to her desire to obtain additional education during the marriage and Robert’s discouragement of those desires. That testimony had no bearing on Priscilla’s need, as found by the court, to obtain additional education in order to support herself after dissolution of the marriage. We conclude that the District Court did not err in applying the “standard of living” factor in § 40-4-203(2)(c), MCA.

Robert’s final argument is that the District Corut erred in awarding maintenance for an indefinite period of time. It is clear from the decree that the court intended to provide support for Priscilla during the time necessary to complete an accounting degree. Priscilla testified that it would take her three years to obtain the degree. The court awarded maintenance for three years or until, with due diligence, she completed the education necessary for the accounting degree. It is the latter portion of the award with which Robert takes issue.

A similar argument was made and accepted by this Court in Marriage of Zander. That case is distinguishable, however. There, the spouse testified that she would need two to five years to get the degree; the district court awarded maintenance until the spouse “completes her RN degree and obtains full time employment.” Marriage of Zander, 864 P.2d at 1231. We expressed our concern that the decree contained no time limit whatsoever on the maintenance award and, because there was evidence regarding the length of time needed to complete the degree, concluded that the district court erred by not putting a time limitation on the maintenance award. Marriage of Zander, 864 P.2d at 1232.

Here, Priscilla testified that it would take her three years to obtain the accounting degree. The court awarded maintenance for that period or until, with due diligence, Priscilla completed the necessary education. This does not represent the same totally open-ended maintenance of which we disapproved in Marriage of Zander. Rather, it represents the practical, common sense understanding by the District Court that even with diligence on Priscilla’s part, it might not be possible for her to complete the degree within three years.

It is appropriate and, indeed, preferable in most cases for courts to specify a time certain at which maintenance will terminate. We cannot say, however, that the duration of the maintenance award here constituted an abuse of discretion by the District Court under these circumstances. In the event Priscilla completes her degree work within the three years, Robert’s maintenance obligation will cease at that time. If she does not complete the degree within a period of time thereafter which would comport with a reasonable person’s definition of “due diligence,” Robert’s remedy will be to move the court to modify the maintenance award on that basis. Given the imbalance between the parties’ respective personal resources now and for the foreseeable future, it is not inequitable to place this contingent burden on Robert.

Robert’s final argument is that the District Court abused its discretion by awarding maintenance while Priscilla completes her education for an accounting degree because no evidence supported the underlying assumptions that she is capable of completing the education or that the education will render Priscilla able to support herself through “appropriate employment.” In this regard, we need observe only that neither statute nor case law require such guaranteed outcomes as Robert apparently believes are necessary to support an award of maintenance during a reasonable period of additional education or training. The District Court did not abuse its discretion.

Final observations are appropriate here with regard to the required contents of an appellant’s brief and the parties’ respective burdens on appeal. We note that Robert failed to present any legal authority whatsoever in support of two of his “issues.” In response to Priscilla’s statements in this regard, Robert asserts that he need not provide authority because it is respondent’s duty to do so. Robert is in error.

Appellants are charged with the burden of establishing the errors they contend occurred in district court proceedings. Appellants must raise legal issues and support them with legal authorities. The requirement of Rule 23(a)(4), M.R.App.P., is clear that arguments must contain the appellant’s contentions and “the reasons therefor, with citations to the authorities ... relied on.” Counsel are cautioned that compliance with the Montana Rules of Appellate Procedure is required and that this Court remains free to refuse to address issues not properly supported with legal authority.

We conclude that the findings challenged by Robert are not clearly erroneous. We further conclude that the corut did not abuse its discretion.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and HUNT concur.


author: JUSTICE HUNT

text:
    JEFFREY S. ROSE, Claimant and Appellant, v. BURDICK’S LOCKSMITH, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer and Respondent.
    No. 93-542.
    Submitted on Briefs March 3, 1994.
    Decided May 17, 1994.
    51 St.Rep. 447.
    875 P.2d 337.
    265 Mont. 178.

      For Claimant and Appellant: Richard J. Pyfer, Small, Hatch, Doubek & Pyfer, Helena.
    For Insurer and Respondent: Ann E, Clark, State Compensation Insurance Fund, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Jeffrey Scott Rose appeals the judgment of the Workers’ Compensation Court entered October 1, 1993, which found that he was not entitled to benefits for an injury allegedly suffered while employed by Burdick’s Locksmith.

We affirm.

The issues on appeal are:

1. Was there substantial credible evidence to support the Worker’s Compensation Court’s findings that the claimant failed to establish that he suffered a compensable injury on July 24, 1992, while in the employ of Burdick’s Locksmith?

2. Was there substantial credible evidence to support the Worker’s Compensation Court’s finding that the claimant failed to comply with the 30-day notice requirement of § 39-71-603, MCA?

Jeffrey S. Rose served in the armed forces and was discharged in 1972 due to a disability related to a knee injury. He received ongoing medical care for the knee injury and a pre-existing neck and shoulder problem at the Veteran’s Administration Hospital. His prior employment included instructing gymnastics and diving. During the 1970s he was employed as a locksmith in California, Washington, and Oregon. In 1990, he began his own locksmith business in Helena. He became acquainted with Dan Burdick, the sole proprietor of Burdick’s Locksmith, and the two discussed the possibility of Burdick purchasing his locksmith business.

On July 16, 1992, Rose was employed by Burdick’s Locksmith to fill-in for another employee recovering from a medical problem. Employees included Dan Burdick, his wife Claudia, a brother, and two or three other employees. Rose continued to perform his own business duties around Burdick’s Locksmith business hours. Throughout Rose’s employment with Burdick, the discussion continued concerning the sale of his locksmith business.

Rose alleged that while he was at work around noon on July 24, 1992, he helped co-employee Kelly Harris move an office file cabinet and that during the move he injured his neck and felt immediate pain in his back and arm. He maintained that he worked until mid-afternoon, at which time his wife drove him to the Veteran’s Administration Hospital where he was treated for his neck injury.

On August 15, 1992, the employee whom Rose was filling in for, returned to work and Rose was laid off. On October 16,1992, the State Fund received the physician’s initial report and billing from the Veteran’s Administration Hospital for Rose’s visits of July 24 and September 22,1992. On October 20,1992, the State Fund received a compensation claim from Rose to recover disability and medical benefits for the July 24 injury. The State Fund received the employer’s first report on October 29, 1992, and on November 20,1992, the State Fund placed the claim under § 39-71-608, MCA, and paid wage loss compensation benefits under a reservation of rights pending further investigation.

After unsuccessful mediation between the parties, on June 2,1993, trial was held before a hearing examiner. On October 1, 1993, the court issued findings of fact and conclusions of law and entered judgment concluding that Rose failed to prove that he suffered a compensable injury, and also failed to meet the 30-day notice requirements within § 39-71-603, MCA. The court denied Rose’s attorney fees and costs. Rose appeals the findings of the Workers’ Compensation Court.

ISSUE 1

Was there substantial credible evidence to support the Worker’s Compensation Court findings that the claimant failed to establish that he suffered a compensable injury on July 24, 1992, while in the employ of Burdick’s Locksmith?

Upon review, this Court will uphold the lower court’s findings where such findings are supported by substantial credible evidence. Smith v. United Parcel Service (1992), 254 Mont. 71, 835 P.2d 717. When conflicting evidence is presented and the credibility of witnesses or weight of their testimony is a pivotal point of the lower court’s findings, this Court will not substitute its judgment for that of the lower court. Smith-Carter v. AMOCO Oil Co. (1991), 248 Mont. 505, 813 P.2d 405.

In the present case, both parties presented conflicting evidence as to whether Rose was injured, and the Workers’ Compensation Court based its findings upon the credibility of the parties.

Rose presented evidence that he injured his neck on July 24,1992, when he helped Kelly Harris move an office file cabinet. Harris denied that he helped him move the cabinet or that he was injured.

Rose also stated that on the day of the injury he left work at 2:30 p.m. to see a doctor concerning that injury. However, the doctor’s medical notes from his July 24 visit stated that he was returning for a follow-up visit for a pre-existing medical problem of neck pain which was exacerbated by an injury at work. Rose testified that it was coincidence that he showed up at the Veteran’s Administration Hospital on an emergency basis on July 24 at 3:00 p.m., the exact date and time of his appointment which was previously scheduled in June 1992.

The medical records reveal that prior to the alleged July 24 injury, Rose was treated for neck and shoulder problems. On February 28, 1992, Dr. Harris Hanson stated in part:

This 38 year old man seen in consultation with a history of neck pain associated with a pain in the right axilla down the medial aspect of the upper arm and into the right forearm in the radial aspect.

The following medical report by Dr. Alex Johnson, dated March 3, 1992, reveals treatment four months prior to the alleged injury:

Beginning about a year ago he began to gradually experience bouts of pain, first in the neck and shoulder area progressing into the medial upper arm and then into the posterior forearm distally as far as the wrist, all on the right side.

Since October 1992, Rose was examined and treated by Dr. Weinert, a specialist in physical medicine and rehabilitation. Dr. Weinert’s report also indicates that Rose complained of pain associated with lifting “a heavy shelf’ at work and that the condition was pre-existing.

The court considered yet another inconsistency concerning Rose’s injury by referring to a medical form completed by him during the July 24 doctor’s visit where he answered in the negative when asked whether his medical need was related to work and whether his medical need was due to an accident.

The court also noted its concerns with Burdick’s credibility because he was recently found to be underpaying premiums due to improper employee classification. Also, he testified that he considered only catastrophic injuries to be compensable under the workers’ compensation guidelines.

The court, after weighing all of the evidence, found that while both parties have made obvious self-serving statements, Rose failed to meet his burden to prove by a preponderance of the evidence that he was entitled to benefits under § 39-71-407, MCA. The court found several inconsistencies in Rose’s testimony and stated the following:

His [Rose’s] credibility is diminished by his pre-existing medical condition, his fabrications about how he injured his knee in the military, his denial on the V.A. Hospital forms that his problem was work connected, and the fact that no disability or injury [was] ever noticed to the employer until after claimant was laid off and the possible sale of his business fell through.

Upon our review of the entire record we hold that there is substantial credible evidence to uphold the Workers’ Compensation Court’s findings that Rose failed to prove that he suffered compensable injury on July 24, 1992, while in the employ of Burdick’s Locksmith.

ISSUE 2

Was there substantial credible evidence to support the Worker’s Compensation Court’s finding that claimant, failed to comply with the 30-day notice requirement of § 39-71-603, MCA?

Section 39-71-603, MCA, requires a person claiming benefits under the Worker’s Compensation Act must give notice within 30 days after the occurrence of the injury to the employer or the employer’s insurer; notice is also met by the actual knowledge of the injury by the employer or a managing agent or superintendent in charge of the employee’s work.

The parties submitted conflicting evidence concerning whether Rose gave notice -within 30 days after the injury. Rose argues that the court erred in finding that he failed to give notice because Harris was the superintendent in charge of the work place when Burdick was gone, and had notice of the injury because he was present when the injury occurred and he knew Rose left work for treatment in the early afternoon.

Harris denied that he knew about the injury or that Rose left work for treatment. Both Harris and Burdick, as well as other employees, denied that Harris was the supervisor of the shop or held himself out as such. Burdick testified that Rose gave him notice by telephone on October 3, 1992, after he was laid off and Burdick was no longer interested in the sale of his business.

The following information in the record supports that Rose did not give notice within the 30-day time limit: the State Fund received the physician’s initial report of the injury on October 16, 1992, received Rose’s compensation claim on October 20, 1992, and received the employer’s first report on October 29, 1992.

In our review of the entire record, we hold that the court’s findings that the employer did not have notice of Rose’s injury pursuant to § 39-71-603, MCA, is supported by substantial credible evidence.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and WEBER concur.


author: JUSTICE NELSON

text:
    THE STATE OF MONTANA, ex rel., the matter of JACK M. SCANLON, Petitioner and Appellant, v. NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS (NAIC), A Missouri Association, and SOCIETY OF FINANCIAL EXAMINERS, INC. (SOFE), A Washington D.C. Corporation and Agency of NAIC, and ANDREA “ANDY” BENNETT, State Auditor and Ex Officio Commissioner of Insurance Individually, and as an Associate of NAIC and SOFE, Respondents and Respondents.
    No. 93-577.
    Submitted on Briefs March 24, 1994.
    Decided May 24, 1994.
    51 St.Rep. 480.
    875 P.2d 340.
    265 Mont. 184.

      For Appellant: Leonard J. Haxby, Butte.

      For Respondents: Stuart L. Kellner, Helena; Stephen M. Frankino, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an Order of the First Judicial District Court granting defendant/respondent’s Society of Financial Examiners, Inc.’s (SOFE’s) motion for summary judgement. We affirm.

Plaintiff/appellant, Jack Scanlon (Scanlon) presents five issues on appeal. Because of our holding, we need only discuss the following two issues:

1. Did the District Court err in determining that Scanlon failed to meet his burden of raising a genuine issue of material fact with regard to whether he possessed the necessary qualifications when he applied for CFE status in 1974 and 1990?

2. Did the District Court err in determining that Scanlon did not possess a constitutionally protected “franchise” or other property interest in Certified Financial Examiner (CFE) certification?

FACTUAL BACKGROUND

This case involves Scanlon’s attempts to obtain a CFE designation from SOFE in December 1974 and November 1990. Because this case involves the interaction between the Montana Insurance Commissioner, the National Association of Insurance Commissioners (NAIC), and SOFE, some background about these organizations is necessary.

The Montana Insurance Commissioner is charged by statute to conduct examinations of local and foreign insurance companies doing business in this state. Section 33-1-401, MCA. Examinations of foreign insurance companies are customarily conducted through the auspices of NAIC. NAIC is an association of insurance commissioners, who are members by virtue of their office. NAIC has divided the United States into various “zones” for the purpose of sharing the cost of financial examinations of foreign insurance companies. NAIC procedures require that only examiners certified by SOFE may participate in financial examinations of foreign insurance companies as representatives of an NAIC zone.

SOFE, a non-profit corporation, is a professional society for examiners of insurance companies, banks, savings and loans, and credit unions. SOFE’s purpose is to establish and promote professional standards, minimum requirements of conduct, training and expertise, for members engaged in the examination of financial institutions. SOFE has established four classes of membership, two of which are pertinent to this case. The definitions of the membership classes are found at Article III, Sections 2 and 3 of SOFE’s bylaws and are as follows:

Section 2. Accredited Membership

Accredited Membership and the title of “Accredited Financial Examiner (AFE)” shall be bestowed upon financial examiners who are general members in good standing, and who have the specified educational, experience and approval criteria as determined by the Board of Governors and these bylaws.

Section 3. Certified Membership

Certified Membership and the title of “Certified Financial Examiner (CFE)” shall be bestowed upon Accredited members in good standing who have met the specific educational, experience and approval criteria as determined by the Board of Governors and these bylaws.

SOFE’s bylaws require that employment by a governmental agency is a prerequisite to both AFE and CFE membership. Society of Financial Examiner’s bylaws, Article I, Section 3.

Prior to SOFE’s creation in 1973, NAIC certified and listed insurance examiners as either “Junior” or “Senior” based on their education and experience. Scanlon represented the State of Montana and zone 6 of NAIC in examinations of insurance companies from 1964 to 1971. Scanlon received the classification of Senior Examiner in January of 1966.

When SOFE was incorporated in 1973, Scanlon was practicing law and no longer contracted for NAIC insurance examinations. In December of 1974, Scanlon applied for membership and CFE designation. At that time, SOFE had an Early Entrance Program which conferred or “grandfathered” either AFE or CFE status on applicants who previously had been classified by the NAIC as a Senior Examiner and who were employed by a governmental agency. SOFE denied Scanlon’s application because he was not employed by a governmental agency.

In 1990 Scanlon was retained to represent the Montana Insurance Department as a contract in-state examiner. Because he was once again conducting insurance examinations for a governmental agency, Scanlon contacted SOFE in November of 1990, for membership and CFE designation. SOFE denied Scanlon’s request because he did not meet the education requirements for CFE status. Moreover, he was no longer able to obtain CFE designation through the Early Entrance Program as it was discontinued in March of 1975.

Scanlon filed a Petition for Declaratory Judgment, Writ of Mandamus and Writ of Quo Warranto on September 14, 1992. On January 19, 1993, the District Court granted the motion to dismiss of State Auditor and ex officio Commissioner of Insurance, on the grounds that Scanlon had failed to state a claim against the Insurance Commissioner upon which relief could be granted. Scanlon has not appealed from that order.

Scanlon moved to dismiss NAIC from this action pursuant to Rule 21, M.R.Civ.P., on June 3, 1993, and the District Court entered its order dismissing NAIC on June 21, 1993. The sole remaining party, SOFE, filed its motion for summary judgment on June 10,1993. After considering the briefs of both parties and hearing oral argument, the District Court granted SOFE’s motion on the grounds that Scanlon failed to meet his burden of raising a genuine issue of material fact as to his possessing the necessary qualifications for CFE status. Scanlon appeals from this order.

STANDARD OF REVIEW

In reviewing a grant of summary judgment, we use the same criteria initially used by the District Court under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The District Court concluded that Scanlon failed to meet his burden of raising a genuine issue of material fact as to his possessing the necessary qualifications when he applied for CFE status and that he had no constitutionally protected franchise or property right. We agree and address each of those issues in turn.

ISSUE I

Did the District Court err in determining that Scanlon failed to meet his burden of raising a genuine issue of material fact with regard to whether he possessed the necessary qualifications when he applied for CFE status in 1974 and 1990?

To sustain a motion for summary judgment, the moving party must establish that no genuine issues of material fact exist which would necessitate a trial of the issues presented. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. Upon meeting this initial burden, the burden shifts to the party opposing the motion, who must show that an issue of material fact does exist. Sprunk v. First Bank System (1992), 252 Mont. 463, 466, 830 P.2d 103, 104. To determine the existence of genuine issues of material fact, it is important to ascertain whether the material facts are actually disputed by the parties, or whether the parties are simply interpreting the facts differently. Sprunk, 830 P.2d at 105. Although summary judgment is not proper when material facts are disputed, “mere disagreement about the interpretation of a fact or facts does not amount to genuine issues of material fact.” Sprunk, 830 P.2d at 105.

After carefully reviewing the record, we conclude that Scanlon failed to meet his burden of presenting a genuine issue of material fact. It is undisputed that Scanlon was not entitled to CFE designation when he first applied to SOFE in 1974, because he was not employed as a financial examiner by a governmental agency at the time of his application. Therefore, Scanlon did not meet the requirements of SOFE’s Early Entrance Program. It is also undisputed that when he requested CFE designation in 1990, Scanlon did not meet SOFE’s education requirements. Furthermore, at the time he applied in 1990, Scanlon could no longer receive CFE status under the “grandfather” or Early Entrance Program, as SOFE discontinued that program in 1975.

Scanlon does not refute these facts but instead presents arguments that summary judgment should be reversed on constitutional grounds. Scanlon’s constitutional arguments aside, it is undisputed that Scanlon did not meet the requirements for CFE designation in either 1974 or in 1990. We hold that the District Court correctly concluded that Scanlon failed to raise any genuine issue of material fact in opposition to SOFE’s motion for summary judgment.

ISSUE II

Did the District Court err in determining that Scanlon did not possess a constitutionally protected “franchise” or other property interest in CFE certification?

Scanlon, nevertheless, asserts that his designation by the NAIC and the Montana State Auditor as a Senior Examiner is a vested property right subject to constitutional protection. Scanlon received the designation of Senior Examiner by fulfilling the required education and experience requirements for that designation at the time it was granted. Scanlon reasons that, once he received the Senior Examiner designation, it became a property right which cannot be eliminated without a rational justification, or in an arbitrary or capricious fashion. Scanlon claims that SOFE’s classifications of AFE and CFE arbitrarily eliminate his property right and that the classifications are not a rational means to attain a legitimate government objective — i.e. insuring that financial examiners are qualified to do the work assigned. Consequently, we must determine whether Scan-Ion had a property interest subject to the protection of the Fourteenth Amendment to the United Stated Constitution, and Article II, Section 17, of the Montana Constitution. Akhtar v. Van de Wetering (1982), 197 Mont. 205, 210, 642 P.2d 149, 152. (Citations omitted.)

It is a fundamental principle of constitutional law that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d. 548, 561, adopted by this Court in Akhtar, 642 P.2d at 153. It is also well established that legitimate claims to entitlement cannot be premised on the Constitution itself, but must be derived from some independent source such as state law or in the rules and understandings existing between employee and employer. Medicine Horse v. Big Horn Co. Sch. Dist. (1991), 251 Mont. 65, 70, 823 P.2d 230, 233, citing Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d 548.

In the instant case, Scanlon presents no specific statutory or regulatory authority mandating that SOFE confer CFE status upon Senior Examiners. The applicable law requires only that the Insurance Commissioner conduct audits of insurers at least once every five years. Section 33-1-401(1), MCA. To carry out that duty, the Insurance Commissioner may appoint competent examiners to conduct or assist in examinations of insurers or others. Section 33-1-303(4), MCA. The statutory guidelines for examiners’ qualifications require that “[ejxaminers must be competent, because of experience or special education or training, to fulfill the responsibilities of an insurance examiner.” Section 33-1-303(4), MCA. There simply is no statute entitling individuals who were at one time classified as Senior Examiners to CFE status.

The complete absence of any statute or regulation in this case does not preclude the possibility that Scanlon had a property interest in CFE status. A “mutually explicit understanding” between the employee and employer can also create a property interest. Medicine Horse, 823 P.2d at 233, citing Perry v. Sindermann (1972), 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. Here too, Scanlon fails to present any objective evidence indicating that SOFE and Scanlon had an understanding that he was entitled to CFE status by reason of his prior designation of Senior Examiner.

Scanlon argues that when he applied for CFE status in 1974, SOFE had an Early Entrance Program which allowed qualified Senior Examiners to be granted either AFE or CFE status without having to fulfill the required educational requirements instituted by SOFE. However, Scanlon did not meet the requirements of SOFE’s Early Entrance Program in 1974 as he was not employed by a governmental agency at that time. When Scanlon applied for CFE designation in 1990, he met the “employed by a governmental agency” requirement. However, Scanlon was not entitled to CFE designation at that time because he failed to meet SOFE’s education requirements, and he was not entitled to a waiver of the education requirements under the Early Entrance Program, as it had been discontinued in June of 1975.

Scanlon asserts that he is competent to do the work of a CFE based on his education and past experience. This allegation does not, however, support a conclusion that a mutually explicit understanding existed between himself and SOFE, giving rise to a legitimate claim to CFE status. Rather, the undisputed evidence that he did not meet the requirements for CFE status in either 1974 or 1990 supports the conclusion that Scanlon’s claim to a property right in CFE status was merely a subjective expectancy.

In either 1974 or 1990 Scanlon could have obtained CFE designation by simply fulfilling SOFE’s certification requirements in effect on the dates he applied. He failed to do that. Even if we were to accept Scanlon’s contention that being classified as a Senior Examiner is a franchise or property right, the fact remains that neither SOFE nor the State of Montana deprived Scanlon of his Senior Examiner status; he still holds that designation. The point to be made is that merely being classified as a Senior Examiner was, without more, insufficient to meet the different requirements for being classified as a CFE in 1974 and in 1990. As the District Court correctly observed, “Scanlon’s competence is not being challenged. Rather, this case centers on the requirements SOFE has adopted for certification and Scanlon’s failure to meet those exact requirements.” We hold that the District Court correctly concluded that Scanlon was not deprived of a constitutionally protected property right or franchise.

Scanlon raises other issues on appeal that are, premised either on his contention that there were genuine issues of material fact or that he was deprived of a constitutionally protected property right in not being granted CFE certification. Having decided both of those issues against Scanlon, it is unnecessary that we address his other arguments.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and WEBER concur.


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PAUL A. ALEXANDER, Defendant and Appellant.
    No. 93-456.
    Submitted on Briefs February 17, 1994.
    Decided May 24, 1994.
    51 St.Rep. 474.
    875 P.2d 345.
    265 Mont. 192.

      For Appellant: Don Vernay, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Valerie D. Wilson, Deputy, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal by defendant Paul A. Alexander from the judgment entered in the Eleventh Judicial District Court, Flathead County, following a jury conviction of one count of sexual intercourse without consent and one count of sexual assault, both felonies. We affirm in part and reverse in part and remand to the District Court for resentencing.

Alexander presents two issues for our review:

I. Did the District Court err in permitting the jury to hear improper hearsay testimony?

II. Did the District Court err in refusing to continue the sentencing in order to allow the inclusion of a sex offender evaluation in the Pre-Sentence Investigation?

Paul A. Alexander (Alexander) was originally charged with two counts each of sexual assault and sexual intercourse without consent, all felonies, involving two of his step-grandchildren, a boy and a girl. The boy was eleven years old at the time Alexander was charged with the offenses. The charges regarding the five-year-old girl were later dismissed upon motion by the State that she was not competent to testify.

The alleged abuse of Alexander’s step-grandson had begun when he was in the first or second grade and had continued until he was in the fourth grade. Testimony showed that the victim was alone with his step-grandfather almost on a daily basis, that they shared a “special relationship” and spent a good deal of time together. The victim was often alone in the house with Alexander while his mother, grandmother and other household members were outdoors working horses or otherwise absent. Further, the victim, his parents and older brother had stayed with the Alexanders for a period of nine months in 1988 while their home was being constructed.

In April of 1992, Alexander and his wife separated. The victim’s mother testified that in August of 1992, her son (the victim) came to her very upset, crying and feeling he had done something wrong because of something Alexander had done to him. The mother took him to a counselor and the sexual abuse was subsequently reported to the police. Alexander was tried before a jury on June 16 and 17, 1993, for committing the two offenses involving his step-grandson. On June 17, 1993, the jury returned a guilty verdict for each of the offenses against the boy.

Prior to the trial, on June 16, 1993, Alexander filed a Motion in Limine to bar statements made by the victim to several persons as inadmissible hearsay. Although the court granted the defendant’s motion subject to allowance by the court pursuant to Rule 801(d)(1)(A) or (B), M.R.Evid., the prosecution made several references to the material covered by Alexander’s motion in its opening statement during the trial. Testimony elicited by the prosecution and objected to by Alexander as hearsay was allowed over his ongoing objections.

During a recess of the trial, Alexander moved the court for a mistrial based on the following four points: (1) in opening statements, the State violated the Order in limine by referring to statements made by the victim to Brad Custer, a school counselor, that the abuse had occurred in Alexander’s home; (2) also in opening statements, the State violated the Order in limine by referring to statements made by the victim to Detective Maxine Lamb; (3) Brad Custer’s testimony stating that the victim had told him that the abuse occurred in his step-grandfather’s house; and (4) the testimony by the victim’s mother concerning what her son had told her about the alleged abuse and what a counselor had told her concerning the abuse. Alexander’s motion for a mistrial was denied.

Following that denial of his motion, Alexander again objected to statements introduced by Robert Piersall (Piersall), a licensed social worker in private practice in Kalispell, who had treated the victim for sexual abuse when the victim’s parents brought him to Piersall for counseling. The District Court allowed Piersall to testify about a post-traumatic stress disorder which Piersall had concluded that the victim suffered from and which was evident in children who had been sexually abused or had suffered from other traumatic events. Piersall further testified that he knew of no other traumatic events in the victim’s experience.

After the jury returned the guilty verdicts against Alexander on both counts regarding his step-grandson, a Sentencing Hearing was set for August 5, 1993. The District Court ordered a presentence investigation. On June 24,1993, Alexander filed a Motion for Evaluation requesting that an evaluation be conducted to assess his amenability to outpatient sexual offender treatment. The District Court ordered such an evaluation to be completed by Northwest Family Recovery in Kalispell and ordered further that it be included in the presentence investigation.

Andy Hudak (Hudak), director of Northwest Family Recovery was conducting the sex offender evaluation of Alexander. Hudak had not completed the evaluation by August 5, 1993, the date scheduled for the Sentencing Hearing. Alexander moved to continue the hearing until the evaluation was completed; this motion was denied by the District Court. The State presented information at the Sentencing Hearing concerning information Hudak had provided to the prosecutor regarding Alexander’s amenability to treatment. In spite of the fact that the evaluation had not been completed, the District Court sentenced Alexander to thirty years imprisonment and designated him a dangerous offender for parole purposes, with the added requirement that he must successfully complete the sex offender program at the Montana State Prison to be considered for parole. Additional facts will be supplied as necessary throughout this opinion.

Issue I: Hearsay

Did the District Court err in permitting the jury to hear improper hearsay testimony?

Alexander contends that the District Court’s admission of hearsay statements made by the victim to Brad Custer, Detective Maxine Lamb, his mother and to Robert Piersall was error and resulted in substantial prejudice to him. He contends that the pretrial Motion in Limine and resulting Order acted to enjoin the State from “referring to or using, in any manner, hearsay statements made by the victims to Brad Custer, Maxine Lamb, Robert Piersall and Lauren Langmead, unless and until same are ruled allowable by the court pursuant to Rule 801 (d)(1)(B).” Alexander claims that the court then improperly allowed such hearsay statements during the trial, beginning with statements made by the State during its opening statements.

Alexander contends that the following statements made by the prosecutor during her opening statements to the jury constitute reversible error:

... And in Late August of 92, [the victim] began approaching his parents saying that he felt he had done something wrong and he would be crying. He would say that Paul would tickle him on his thighs, on his legs. And the parents, as any parent would, investigated. And they went and talked to the school counselor; and the school counselor called Maxine Lamb of the Sheriff’s Department; and Maxine Lamb of the Sheriff’s Department suggested they go see Brad Custer of the Department of Family Services.
So Brad Custer interviewed the child, and then referred the case back to the Flathead County Sheriff’s Department.
It wasn’t until the 31st of December, New Years eve that Maxine finally interviewed [the victim]... After speaking -with [the victim], Maxine then spoke with the defendant, and he was interviewed by Maxine Lamb also on that day, on New Years eve, 1992.

Alexander claims that the statements by the prosecutor regarding the contact of the victim with Brad Custer and Maxine Lamb constitute improperly admitted hearsay.

In the District Court’s Order concerning presentation of hearsay, the court stated it would not allow statements made by the named witnesses unless and until it ruled on the statements. The statements made by the prosecutor as detailed above do not constitute hearsay, but rather allude to testimony of certain witnesses to be called during the trial. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid.

However, citing State v. West (1980), 190 Mont. 38, 42, 617 P.2d 1298, 1300, Alexander contends that certain statements made here are grounds for reversal because the prosecutor’s reference to inadmissible evidence in her opening statement contributed to his conviction. According to the ruling in West, hearsay evidence alluded to in opening statements must be so highly prejudicial that it supports a reasonable probability that the statements led to the defendant’s conviction. West, 617 P.2d at 1300.

The prosecutor’s statements as quoted above do not contain any statements made by Brad Custer or Maxine Lamb. They merely detail the course of events leading up to Detective Lamb’s interview with the defendant. Her statements chronicle the development and investigation of the case to the point of charging Alexander with the offenses against his step-grandson. We conclude that the prosecutor’s statements do not in any sense constitute testimony, nor did they prejudice Alexander by alluding to improper witness hearsay testimony. Thus, Alexander’s objection to the statements on these bases is misplaced.

Alexander also claims certain testimony by witnesses involved inadmissible hearsay statements. He first contends that statements made by Brad Custer, which we quote in their entirety here, were inadmissible hearsay:

Q. [by Ms. Wilson] And through your investigation, were you able to establish where the alleged abused [sic] occurred?
A. [by Brad Custer] Yes, I was.
Q. And where was that, Mr. Custer?
A. [The victim] told me that the incident he described occurred at his step-grandfather’s house in Kalispell. He listed that as 83 Dern Road in Kalispell.
Q. And would that be in Flathead County?
A. Yes, it would.

The District Court ruled that this testimony was in the nature of foundation and background.

The State contends that this testimony by Mr. Custer was clearly elicited to establish venue in Flathead County and is not hearsay. Alexander claims that there was never any question of or challenge to venue. It is clear from the questions and answers in the transcript that the statements only establish the place where the incidents occurred and do not constitute testimony that Alexander was the person who committed the acts. However, our question is whether or not that can be classed as inadmissible hearsay.

Rule 801(c), M.R.Evid. , provides that hearsay is a statement made by someone other than the declarant offered in evidence to prove the truth of the matter asserted. Clearly, Mr. Custer’s statements as set forth above were offered into evidence to prove that the incident the victim described had occurred in Flathead County and as such constituted inadmissible hearsay as they were being offered by someone other than the declarant.

Having determined that error was committed by allowing the prosecutor to present hearsay testimony, we next address whether that error was harmless. Montana follows the United States Supreme Court’s test for determining what constitutes harmless error. State v. Wallace (1986), 223 Mont. 454, 458, 727 P.2d 520, 523. That definition provides:

[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.

Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684. We have also stated:

This Court must be able to state, in cases of error which we regard as harmless, that beyond a reasonable doubt the error did not affect the outcome of the trial.

State v. Daniels (1984), 210 Mont. 1, 12, 682 P.2d 173, 179, (citing Chapman v. California (1967), 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 705, 711 (reh’g denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241)).

Although Mr. Custer’s testimony as to the location where the offenses occurred was presented prior to the victim’s testimony, it did not include any information that was not verified by the victim later during the course of the trial. We conclude that this did not prejudice Alexander and is harmless error according to Montana law as established by our prior cases.

Alexander’s next hearsay argument concerns certain statements made by the victim’s mother at trial when she attempted to state what her son had told her about the sexual abuse and what a friend who was a counselor had said to her about sexual abuse. The transcript indicates that the victim’s mother did indeed attempt to make inappropriate statements; however, counsel for defendant objected immediately and the District Court sustained the objections. Consequently, there was no hearsay introduced through the victim’s mother’s testimony.

Moreover, the mother’s attempt to introduce hearsay evidence did not result from the prosecutor’s attempt to introduce such comments; rather, it was the witness who tried to do so. The District Court ruled that although some of the other testimony from the victim’s mother may have involved some hearsay in her description of events leading up to filing charges against Alexander and obtaining counseling for her son for sexual abuse, that testimony was also foundational in nature and not substantive enough to be of such prejudice as to warrant granting Alexander’s motion for a mistrial.

Alexander’s final argument concerning hearsay relates to the testimony of the victim’s counselor, Piersall. Piersall did not testify about anything the victim said to him. He testified about his diagnosis that the victim was suffering from post-traumatic stress and that such stress is consistent with certain experiences in a child’s life, including sexual abuse. He testified as follows:

Q. [By Ms. Wilson] Have you diagnosed [the victim]?
A. [By Piersall] Yes, I have.
Q. And can you tell me what that diagnosis is?
A. Post-traumatic stress disorder.
Q. And what symptoms did the child display that brought you to that decision?
A. Well, [the victim’s] tendency was to minimize his symptoms of distress as a coping device, because the more he would become aware of his distress, then the more distressed he would actually become. So his tendency was to down-play them. Part of my making that diagnosis is based on information reported to me by the mother....
MR. VERNAY: Your Honor, we are in hearsay.
THE COURT: Well, not yet.
THE WITNESS: She reported —
MR. VERNAY: We are in hearsay from [the mother].
THE COURT: You are objecting?
MR. VERNAY: Yes, I am.
THE COURT: Sustained.
BY MS. WILSON:
Q. Can you tell me what symptoms that you directly observed of [the victim] that would be consistent with your diagnosis?
A. Well, it was approximately the third or fourth meeting that I had with [the victim] that I questioned him directly.
MR. VERNAY: Objection, Your Honor, hearsay.
THE COURT: Overruled.
THE WITNESS: Where I questioned [the victim] directly about his allegations of sexual abuse by Paul Alexander toward him. And as [the victim] was describing verbally to me things that he says took place —
THE COURT: Wait a minute. Stop. This is hearsay. I am going to have to sustain the objection. You can’t testify as to [the victim] — what he said to you or things that he has done that he — manners other than speech or in addition to speech, where he communicated to you. It is hearsay, and you are not allowed to —
THE WITNESS: Okay. I can say that he was very fearful as he relayed that information. That is something I observed directly.
BY MS. WILSON:
Q. Were there any other physical symptoms?
A. Well I asked him to do some drawings.
Q. I guess I don’t really want to get into the nature of those.
A. All right.
Q. Doctor, is the diagnosis of post traumatic stress disorder consistent with children who have suffered sexual abuse?
A. Yes.
Q. Is it also consistent with other traumatic events that occur?
A. Yes.
Q. Can you give the jurors an example of some other things that might cause post traumatic stress?
A. Well, overwhelming experiences, such as being involved in a car accident and receiving significant injuries, having your house burn down, being physically abused. There are numerous traumatic events that could occur that could cause this type of symptom cluster.
Q. Have any of those type of occurrences been reported to you as occurring to [the victim]?
A. No, they haven’t been reported to me. I am not aware of any? [sic]

Alexander contends that Piersall’s testimony violates the holding of this Court in State v. Harris (1991), 247 Mont. 405, 808 P.2d 453. Harris dealt with statements about sexual abuse made to a counselor by a minor child who is the alleged victim of sexual abuse for purposes of diagnosis under the medical treatment exception of Rule 803(4), M.R.Evid., and under the residual exception to the hearsay rule, Rule 804(b)(5), M.R.Evid. The Harris case also discussed a counselor’s testimony relating to the credibility of the child victim. Harris, 808 P.2d at 455-59. Neither issue is appropriate here and Alexander has cited no other authority to support his argument. Here, there were no statements made by the victim which the State introduced through the counselor and the counselor did not testify as to the credibility of the victim.

Expert testimony is permissible to explain the existence of medical or psychological conditions associated with abuse. In State v. Scott (1993), 257 Mont. 454, 465, 850 P.2d 286, 292-93, we said:

Expert testimony relating to the contradictory behavior ... of a child victim of sexual abuse, will be allowed to enlighten the jury on a subject with which most people have no common experience and to assist the jurors in assessing the credibility of the victim.

We conclude the testimony given by Piersall in this case is the sort of testimony referred to in Scott which pertains to explaining the behavior of the victim and which is intended to assist the jurors in assessing the credibility of the victim. Scott also discussed the testimony of a counselor relating to the credibility of the child victim; this sort of testimony was not used in this case as Piersall did not testify as to the victim’s credibility. His testimony was informative to the jurors on the nature of post traumatic stress disorder and did not impinge on the jury’s determination of credibility of the victim.

We hold the District Court erred by admitting the testimony of Brad Custer to establish where the offenses occurred and that such error was harmless. We further hold that none of the other testimony challenged by Alexander constituted improper hearsay testimony.

Issue II.

Did the District Court err in refusing to continue the sentencing to allow the inclusion of a sex offender evaluation in the Pre-Sentence Investigation?

On June 28, 1992, the District Court ordered an evaluation by a psychologist “for purposes of ascertaining [Alexander’s] amenability to treatment in an outpatient program.” The evaluation was to be provided to the District Court as part of the presentence investigation. The court ordered that the sex offender evaluation be conducted by Northwest Family Recovery, licensed clinical psychologists. The court further ordered that copies of the evaluation be included in the presentence investigation pursuant to § 46-18-111, MCA. When that evaluation was not completed by the time scheduled for the sentencing hearing, the District Court refused to continue the hearing and sentenced the defendant without the benefit of the sex offender evaluation and recommendation.

During the sentencing hearing conducted on August 5, 1993, counsel for Alexander advised the court that Andy Hudak of Northwest Family Recovery was working on the evaluation but that it would not be completed for at least another month. He requested that the sentencing hearing be continued until the evaluation had been completed and considered by the court. The prosecutor advised the court that she too had spoken with Hudak and that Hudak had told her that persons such as Alexander who maintain their innocence about the sexual behavior at issue are generally not amenable to treatment in his outpatient program. The District Court acknowledged its own familiarity with such programs, noted the continued denial of the defendant and denied the motion to continue the sentencing hearing.

Alexander contends that the District Court erred by refusing to continue the sentencing hearing and by sentencing him without considering Hudak’s report. He argues that this violated the presentence investigation requirements set forth in § 46-18-111, MCA. Section 46-18-111, MCA (1991), applies to Alexander’s sentencing and provides in pertinent part:

46-18-111. Presentence investigation — when required. (1) Upon ... a verdict or finding of guilty to one or more felony offenses, the district court shall direct the probation officer to make a presentence investigation and report.... The investigation must include an evaluation of the defendant and a recommendation as to treatment by a person qualified under guidelines established by the department of corrections and human services. ... (Emphasis supplied.)

Section 46-18-111(1), MCA, was amended by the 1993 Legislature and now specifically addresses perpetrators of sexual crimes involving victims under the age of sixteen years. The legislature amended subsection (1) to include a mandate for an evaluation and a recommendation as to treatment in the least restrictive environment in light of community safety and offender needs. Although Alexander argues that the amended statute is more applicable to this case and should apply, that statute took effect on October 1, 1993, after Alexander’s sentencing. However, the statute as previously written also requires an evaluation and recommendation as to treatment in this case.

Nonetheless, the State argues that because the District Court considered placement in a less restrictive environment than the Montana State Prison and recognized Alexander’s rights to continue to claim his innocence, Alexander was not prejudiced by sentencing without the evaluation. The express wording of the 1991 statute, however, requires that the District Court “shall direct the probation officer to make a presentence evaluation and report” and that the “investigation must include an evaluation of the defendant and a recommendation as to treatment” by a qualified person.

Sentencing decisions made by a district court are generally discretionary as trial judges are granted broad discretion to determine the appropriate punishment. See, e.g., State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. However, the appropriate standard of review here as to this issue is whether the District Court’s interpretation of the law is correct. State v. Strong (1993), 258 Mont. 48, 49, 851 P.2d 415, 416.

In this case, the District Court sentenced the defendant before the presentence investigation was completed. The trial court’s discretion to determine the appropriate punishment in such a case cannot be exercised until and unless the statute concerning presentence investigations has been correctly applied. We conclude that the District Court did not have the discretion to sentence the defendant in this case without considering a complete presentence investigation containing the evaluation and recommendation required by § 46-18-111(1), MCA.

After Alexander’s sentencing, Hudak completed Alexander’s Amenity Evaluation (for purposes of amenability for outpatient therapy) and the evaluation is now part of the record and can be included in the presentence investigation. Thus, on remand, the District Court will have a complete presentence investigation to consider in light of our decision in this case.

We hold the District Court erred in refusing to continue the sentencing in order to allow the inclusion of a sex offender evaluation in the Pre-Sentence Investigation.

Affirmed in part, reversed in part and remanded for resentencing consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and TRIEWEILER concur.


author: JUSTICE HARRISON

text:
    CATHERINE J. COOPER, Plaintiff and Appellant, v. SISTERS OF CHARITY OF LEAVENWORTH HEALTH SERVICES CORPORATION, and ST. JAMES COMMUNITY HOSPITAL, INC., Defendants and Respondents.
    No. 93-642.
    Submitted on Briefs April 21, 1994.
    Decided May 25, 1994.
    51 St.Rep. 484.
    875 P.2d 352.
    265 Mont. 205.

      For Appellant: John Leslie Hamner, Butte.
    For Respondents: Brendon J. Rohan, Poore, Roth & Robinson, Butte.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Catherine J. Cooper (Cooper) appeals an order of the Second Judicial District Court, Silver-Bow County, which granted summary judgment to the Sisters of Charity of Leavenworth Health Services Corp. and St. James Community Hospital, Inc. (St. James). We affirm.

On the morning of July 17, 1991, Cooper — then 80 years old — travelled to St. James to visit her daughter. Cooper parked her car behind the hospital and was walking toward the hospital when her right foot caught on something and caused her to fall. Cooper fell against the hospital’s sidewalk and broke her arm. Cooper was not certain what she had caught her foot on, however, she maintained that her soft-soled shoes became “wedged” between the grate and the sidewalk or between the grate’s bars, causing her to fall to the sidewalk. The sewer drain grate bars are situated parallel to the flow of pedestrian traffic and the bars are square and elevated above the grate’s frame.

Cooper filed her complaint on November 18,1992, alleging that St. James was negligent in its construction, maintenance and repair of its sidewalk, driveway and drain grate located at the rear entrance of the hospital. She asserted that St. James knew or should have known that the uneven conditions of the walkway, pavement, adjoining grill and the grate’s bars — which were raised and parallel to the flow of pedestrian traffic — constituted a danger.

St. James answered the complaint and generally denied that it was negligent or that it caused her injuries. St. James then conducted discovery to determine the factual basis of Cooper’s claim. Cooper did not conduct discovery nor did she obtain experts to support her claim that St. James was negligent in the construction, maintenance and repair of the sidewalk, pavement and drain grate.

Based on Cooper’s deposition and Cooper’s responses to interrogatories, St. James filed a motion for summary judgment on October 12, 1993. Cooper opposed the motion and submitted an affidavit signed by herself and her ex-husband.

The District Court granted St. James summary judgment on the basis that the hospital had no duty to warn Cooper of the storm drain grate because the condition of the grate, pavement and sidewalk was obvious to anyone who looked and Cooper, in fact, testified by deposition that she had noticed the condition of the grate, pavement and sidewalk prior to her fall. Cooper appeals and presents one issue:

Did the District Court err by granting St. James summary judgment on the basis that St. James had no duty to warn Cooper of the open and obvious danger presented by the storm drain grate, pavement and sidewalk?

Our standard of review on a grant of summary judgment is identical to that of the trial court’s. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We examine the record to determine whether genuine issues of material fact exist. Minnie, 849 P.2d at 214. If no genuine issues of fact exist, we must determine whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

Initially the moving party has the burden to establish that no genuine issues of material fact exist. Minnie, 849 P.2d at 214. Here, St. James established that no genuine issues of material fact existed: Cooper testified that as she approached the rear door to the hospital, she saw a nurse come out of the door. The nurse spoke to her. Cooper looked up to say hello and she caught her right foot on something and fell. Cooper could see the sidewalk curb and she realized she needed to step up onto the sidewalk. She also saw the sewer grate “quite a ways before [she] got to it....” Cooper was also familiar with the area where she fell, having passed over the area three or four times prior to the accident.

Once the moving party establishes that no genuine issues of material fact exist, the burden shifts to the non-moving party to prove that a genuine issue of material fact exists. Minnie, 849 P.2d at 214. “To meet this burden, the non-moving party must proffer substantial evidence ....” First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681.

Cooper, in support of her contention that material issues of fact existed, submitted a compound affidavit signed by herself and her ex-husband, Earl C. Cooper. Rule 56(e), M.R.Civ.P., requires a summary judgment affidavit to contain certain elements:

[Affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. ... [A]n adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits ... must set forth specific facts showing that there is a genuine issue for trial.

Here, the affidavit is signed by both Cooper and her ex-husband and the affidavit does not specify which statements are based on Cooper’s personal knowledge and which statements are based on her ex-husband’s personal knowledge. Further, most of the alleged “facts” in Cooper’s affidavit are only “opinions.” No foundation was presented to establish either Cooper or her ex-husband as an expert in the construction, maintenance or placement of walking surfaces or sewer grates. Accordingly, neither Cooper nor her ex-husband could offer expert opinions to establish that the walking surface and the sewer grate were defective and dangerous. That testimony would not be admissible as evidence since “the affiant[s are not] competent to testify to the matter stated therein.” Rule 56(e), M.R.Civ.P. Since Cooper’s compound affidavit does not comply with the requirements of Rule 56(e), M.R.Civ.P., we conclude, as a matter of law, that Cooper’s affidavit does not raise a genuine issue of material fact.

Cooper failed to identify an uneven slope, defect or irregularity in the walking surface. She failed to prove that the construction or maintenance of the walking surface contributed to her fall. Cooper admitted that she could not identify any “defect” that caused her fall. In fact, in responding to an interrogatory about the defective condition or irregularity of the walking surface, Cooper responded:

At the time [Cooper] fell, she felt her foot catch on the walking surface. The walking surface created by the grate and surrounding pavement is uneven. The surprise and suddenness of her fall precludes [Cooper] from knowing precisely which defect in the walking surface of the grate and surrounding pavement caught her shoe and caused her fall. Inspection should reveal all irregularities and defects of such walking surface.

Cooper also responded to an interrogatory that inquired about the acts or omissions which she alleged constituted negligence in the construction, maintenance and repair of the sidewalk, driveway and drain grill. She stated:

[St. James] is better aware than [Cooper] as to specific details regarding construction, maintenance and repair of its sidewalk where [Cooper] fell. [St. James] ... admits control and possession of the hospital properties, which includes the area where [Cooper] fell. Further details about the specific causes of the uneven walking surface created by the grate and surrounding pavement will be furnished by [Cooper] as those facts are developed in discovery.

Cooper, however, failed to submit discovery and, thus, she failed to present specific evidence to create a factual dispute as to St. James’ negligence and the alleged defects of the walking surface.

Even though Cooper speculated that her shoe may have become “wedged” between the bars of the sewer grate, it is well settled that “[m]ere conclusory or speculative statements are insufficient to raise a genuine issue of material fact.” Lueck v. United Parcel Service (1993), 258 Mont. 2, 9, 851 P.2d 1041, 1045. Moreover, even if she would have proved that her shoe became wedged between the bars of the sewer grate, that fact simply does not show that the walking surface was defective or improperly maintained.

Cooper has failed to raise a genuine issue of material fact that the walking surface was defective or improperly maintained. Accordingly, we must examine whether St. James was entitled to judgment as a matter of law.

It is well established that a business owner must use ordinary care to keep its premises reasonably safe and warn people of any hidden or lurking dangers. Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. In Kronen, a woman slipped and fell in a beauty shop when she failed to see a “step-down” from a carpeted level to a vinyl floor. The woman admitted that the step was visible but she claimed that it seemed like the entire floor “blended together.” We upheld the district court’s grant of summary judgment to the defendant and stated that the woman did not prove that there was a hidden danger or unsafe condition in the area surrounding the step. Kronen, 683 P.2d at 1318. She had passed over the step before and was aware of its existence. “She failed to see and observe that which would be obvious through reasonably expected use of an ordinary person’s senses.” Kronen, 683 P.2d at 1318. We held that the beauty shop owner had no duty to warn the woman of the obvious danger presented by the step. Kronen, 683 P.2d at 1318.

Similarly, here, Cooper admitted that she noticed the drain grate from a considerable distance and knew the drain grate was in her path. Cooper failed to show that the drain grate presented an unsafe condition or hidden danger. An ordinary person reasonably using her senses would have discovered any danger presented by the drain grate. However, Cooper did not see and observe any danger which the drain grate presented.

Cooper failed to prove that the drain grate was unsafe or that the drain grate presented a hidden or lurking danger. On that basis, we conclude that St. James was entitled to judgment as a matter of law. We hold that the District Court properly granted St. James summary judgment.

Affirmed.

JUSTICES HUNT, GRAY, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE HUNT

text:
    IN RE THE MENTAL HEALTH OF E. M., Respondent and Appellant.
    No. 93-652.
    Submitted on Briefs April 28, 1994.
    Decided May 31, 1994.
    51 St.Rep. 487.
    875 P.2d 355.
    265 Mont. 211.
    For Appellant: Robert Allison, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena; Thomas J. Esch, County Attorney, Valerie Wilson, Deputy County Attorney, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

E.M. appeals from an order of the District Court for the Eleventh Judicial District, Flathead County, committing her to a mental health facility for a period of up to ninety days. We affirm.

The issue is whether a verbal statement of a threatening nature may constitute an overt act within the meaning of § 53-21-126(2), MCA.

On September 30,1993, the Flathead County Attorney’s office filed a petition for involuntary commitment of E.M. Attached to the petition was a report prepared, and signed by two mental health professionals employed by the Northwest Montana Regional Community Mental Health Center.

According to the report, E.M. was a fifty-seven-year-old widow with no known relatives. Mental health professionals evaluated her after a friend of hers reported that E.M. had stated that she planned to buy a gun and then shoot a neighbor and herself. When the mental health professionals spoke with E.M. in her home, she again stated her plan to shoot her neighbor and herself. The report further stated that E.M. appeared to be suffering from a delusional disorder and to be capable of carrying out her plan. Although E.M. had no reported previous mental illness, the mental health professionals wrote that, when interviewed, she had a “paranoid delusion evidenced by ideas that neighbor is entering [her] apt. + disturbing objects + T.V. signals” and that E.M.’s insight and judgment were “grossly impaired.”

The District Court held a hearing on the petition on October 5, 1993. E.M. was present and was represented by counsel and by a court-appointed friend of respondent. A mental health professional who signed the report was the sole witness.

Although E.M. does not challenge the finding that she suffers from a mental disorder, we set forth some of the evidence on that point to place the issue on appeal in context. The mental health professional diagnosed E.M. as suffering from paranoia, a delusional disorder, and possible underlying depression. She testified that E.M. told her the neighbor had been in her apartment and had cut little holes in her long johns. When the mental health professional suggested another reasonable explanation might be that the long johns were coming apart at the seams after laundering or that there was some defect in the garment, “[E.M.] got quite agitated with us. There was no other explanation ...” The mental health professional also testified that E.M. stated her neighbor had been entering her apartment and smearing feces on her toilet and interfering with her television and radio reception with electronic devices.

The court denied a motion by E.M.’s attorney to dismiss the petition. It found that E.M. was seriously mentally ill and in need of treatment. It ordered that she be committed to Glacier View Hospital at her own expense for a period not to exceed ninety days. The court further provided for a conditional release to Lamplighter House upon E.M.’s compliance with the medical and treatment program and no farther acts or threats of violence.

May a verbal statement of a threatening nature constitute an overt act within the meaning of § 53-21-126(2), MCA?

Montana’s procedures concerning petitions for involuntary detention of a person at a mental health facility are set forth at §§ 53-21-121 through -127, MCA. Section 53-21-126(2), MCA, provides:

The standard of proof in any hearing held pursuant to this section is proof beyond a reasonable doubt with respect to any physical facts or evidence and clear and convincing evidence as to all other matters, except that mental disorders shall be evidenced to a reasonable medical certainty. Imminent threat of self-inflicted injury or injury to others shall be evidenced by overt acts, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.

E.M. questions whether a verbal statement of a threatening nature is sufficient to constitute an “overt act” under the statute.

E.M.’s question has been addressed in cases previously decided by this Court. “A threat to kill is a verbal act that falls within the definition of an ‘overt act’ as set forth in the statute.” In re Goedert (1979), 180 Mont. 484, 487, 591 P.2d 222, 224. The Court later elaborated:

The threat to kill another is a verbal overt act. It manifests the commission of a dangerous act upon oneself or another. When there is proof beyond a reasonable doubt that there is a present indication of probable physical injury likely to occur at any moment or in the immediate future, coupled with the finding within a reasonable medical certainty that the individual is suffering from a mental disorder, then involuntary civil commitment of that person is required.

In re F.B. (1980), 189 Mont. 229, 233, 615 P.2d 867, 869-70. We have further explained our rationale as follows:

Our citizens are entitled to protection from harm at the hands of those unfortunate persons who are victims of a mental disorder. Most certainly the legislature never intended that blood of innocent people must first be shed before the statutory definition of “overt act” has been satisfied.

In re J.B. (1985), 217 Mont. 504, 510, 705 P.2d 598, 602.

E.M. argues that her case is not comparable to the above-cited cases because, in those cases, the court relied upon other behavior in addition to a single verbal threat. She asserts that there has been no showing of violent behavior by her in the past or “of even the slightest scintilla of a physical act of any sort directed against another in furtherance of this threat or, for that matter, any prior incidents.”

The record demonstrates that E.M. made repeated threats to end her neighbor’s life and her own life and that she may have obtained a gun. The mental health professional testified as follows about an interview with E.M. after the petition was filed:

And then on the 30th I was present at that interview, and she clearly stated that she had made up her mind to get the gun and we could not talk her out of it. When I asked her if she had a gun already, she smiled and said, “I won’t tell you that.” She told me that she is a determined person. And when we offered other possibilities of settling these disputes with her neighbor, including having meetings with the two of them, bringing some of the complaints out to open discussion, she stated that, “I will do it my way.” We again asked her “her way,” and she said, “I will shoot him, you better believe it.”

On cross-examination, the mental health professional testified that E.M. refused to answer a question as to whether she had already taken further steps to obtain a gun. The mental health professional also testified that she believed E.M.’s threats constituted a very clear danger to the neighbor and to E.M. herself.

We conclude that the District Court did not err in ruling that the State provided clear and convincing evidence of overt acts constituting an imminent threat of injury to herself and another on the part of E.M. We hold that the court did not err in ordering E.M. involuntarily committed to a mental health facility.

Affirmed.

JUSTICES GRAY, TRIEWEILER and NELSON concur.

JUSTICE HUNT

dissenting.

I dissent. I recognize the difficulty these cases present and the dilemma often faced by law enforcement officers, prosecutors, and district judges, but the statute does provide that to prove imminent threat of injury requires some sort of overt act, recent enough in time to be relevant to the respondent’s condition. Section 53-21-126(2), MCA. I agree with Justice Morrison’s dissent in Matter of J.P., 217 Mont. 504, 511, 705 P.2d 598, 603 (Morrison, J., dissenting), where he said that “courts should be vigilant in protecting the rights of those sought to be committed. The discharge of judicial responsibility includes rigorous application of the statutory mandate.” As in that case, the State here has failed to prove that E.M. took any actions to demonstrate a present danger to either herself or to others. She is a 57-year-old widow who has shown no inclination toward violence, and has only made verbal threats. If we allow verbal threats alone to be sufficient to lock somebody up for 90 days, whether or not at their own expense, we have gone a long way away from our judicial responsibility.