author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF BENNIE LEE DANELSON, Petitioner and Appellant, v. CLO ANN DANELSON, Respondent and Respondent.
    No. 91-255.
    Submitted on briefs Dec. 12, 1991.
    Decided July 9, 1992.
    49 St.Rep. 597.
    253 Mont. 310.
    833 P.2d 215.

      For Appellant: Richard A. Simonton, Simonton, Howe & Schneider, Glendive.
    For Respondent: Jerrold L. Nye, Nye & Meyer, Billings.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Bennie Lee Danelson brought a petition for dissolution of marriage on September 24,1987. On November 18,1988, following a bench trial, the District Court of the Fifteenth Judicial District, Daniels County, entered a decree of dissolution. Respondent Clo Ann Danelson then filed a motion for a new trial which was granted on January 11,1989, over appellant’s objection. Following the new trial, the District Court entered a second decree on March 13, 1991. The second decree was more favorable to respondent than the first. Appellant brought this appeal attacking both the order granting the new trial and the decree resulting from the new trial. We affirm in part and reverse in part.

We phrase the issues before the Court as follows:

1. Did the District Court err in granting respondent a new trial?

2. Did the District Court err in its distribution of the marital estate following the second trial?

The parties were married on March 25, 1967. Two children were bom to the parties. Neither child custody nor support issues were involved in the second trial and are not at issue on appeal. The issues in the second trial concerned the distribution of the parties’ property. Over the 21-year marriage, the parties accumulated a considerable amount of land, farm equipment, and livestock, which were held in two Montana corporations. The marital estate consisted primarily of stock in these two corporations. Each party owned a 50 percent interest in Bennie Lee Danelson, Inc. Additionally, each party owned a 25 percent interest in Lazy D Diamond, Inc., with two other individuals owning the other 50 percent interest.

At the conclusion of the first trial, which was held in October 1988 without a jury, the District Court determined the net worth of Bennie Lee Danelson, Inc., to be $81,135. This was discounted by 40 percent, making the final value $48,681. The District Court found the net worth of Lazy D Diamond, Inc., to be negative $550,560.93. (The court noted that while all four owners of Lazy D Diamond, Inc., personally guaranteed the loans, the other two owners had completed a Chapter 12 bankruptcy and no longer had any liability on their individual guarantees for the corporate loans.) Combining these two figures the court found the marital estate of the parties was a negative $501,879.

Finding no net marital estate to be divided, the court determined that it was not in the best interests of the parties to allow the ownership of the corporations to continue as it was. The court ordered respondent to transfer all of her shares of stock in the corporations to appellant. Appellant was to assume all liabilities of both corporations and was to hold respondent harmless and indemnify her from the liabilities and creditors of both corporations. Appellant was ordered to pay maintenance in the amount of $350 per month for 68 months, and to pay $10,000 to respondent for her to purchase dependable transportation. Respondent, after a lengthy marriage, did not receive any other property from the marital estate.

Respondent filed a motion for a new trial or in the alternative an amended judgment. Over appellant’s objection, the District Court granted a new trial in January 1989. In light of the order for a second trial, respondent did not turn over her shares in the corporations as ordered in the first trial. In January 1991, a second nonjury trial was held regarding the issues of maintenance and property distribution. At the conclusion of the second trial, the judge issued findings of fact and conclusions of law which varied from the results reached in the first trial.

Following the second trial, the District Court determined that the net worth of Bennie Lee Danelson, Inc., was $132,615. The court further determined that the net marital estate in Bennie Lee Danelson, Inc., should be divided equally between the parties. To this end, the court ordered that appellant pay respondent $10,000 within 30 days of the decree. Additionally, appellant was to pay the remainder over a seven-year period at ten percent interest in equal annual payments of $11,197.80. Respondent was to hold her shares in the stock of Bennie Lee Danelson, Inc., as security for the payment of her share of the corporate net worth. As long as the payments were current, the shares held by respondent would be nonvoting shares and she would not participate in corporate affairs. Once the final payment was made, respondent was to turn over to appellant all of her shares in Bennie Lee Danelson, Inc.

In the first trial, the District Court ordered respondent to turn over her shares of Lazy D Diamond, Inc., to appellant. In return, appellant was to assume all the liabilities of the corporation and hold respondent harmless for these debts. Because the District Court granted a new trial, this order was not carried out, and at the time of the second trial respondent still held her shares in the corporation. In the second trial, the District Court determined that appellant did not have the means to hold respondent harmless in the event she turned her shares in the corporation over to appellant. Therefore, the District Court determined that respondent would keep her shares. Respondent would have the right to her share of the corporate earnings and would be liable for the corporate liabilities. Maintenance was to remain as initially determined in the first trial. Appellant brought this appeal attacking both the order granting the new trial and the findings and conclusions of the District Court following the second trial.

I

Did the District Court abuse its discretion in granting respondent a new trial?

The decision to grant a new trial is within the sound discretion of the district court and will not be disturbed by this Court absent a manifest abuse of discretion. Larson v. K-Mart Corp. (1990), 241 Mont. 428, 430-31, 787 P.2d 361, 362. Appellant presents three arguments in support of his contention that it was an abuse of discretion for the District Court to grant respondent a new trial. First, appellant argues that respondent was incorrectly allowed to argue matters additional to those initially raised in the motion for a new trial. Second, appellant alleges the District Court erred in not ruling on his motion to reconsider the order granting the new trial. Finally, in granting the new trial, appellant contends that the District Court did not state with particularity in the order the reasons for granting the new trial.

All the grounds argued by appellant in support of his contention that the District Court abused its discretion in granting a new trial must fail. Appellant failed to object or bring an appeal in a timely fashion.

Appellant initially contends that respondent’s second counsel was allowed to present arguments by way of an affidavit and a brief in support of the original motion for a new trial which went beyond the grounds relied on in the original motion. However, appellant had the opportunity to object to these arguments but failed to do so. Appellant filed both a reply brief and a supplemental reply brief in opposition to respondent’s motion for a new trial. After reviewing these briefs it is clear that appellant did not raise this objection. The objection is now raised for the first time on appeal and will not be considered by this Court. In re Marriage of Glass (1985), 215 Mont. 248, 697 P.2d 96.

Second, appellant alleges the District Court erred in not ruling on his motion to reconsider the order granting the new trial.The District Court entered the order granting the new trial on January 11, 1989. Appellant’s motion to reconsider was filed on February 15, 1990, more than a year after the District Court’s order granting a new trial. Appellant’s motion to reconsider was not timely filed pursuant to the Montana Rules of Civil Procedure. In any event Rule 60(c), M.R.Civ.P., provides that such a motion is deemed denied if the trial court fails to rule on the motion within 45 days from the time it is filed.

Finally, in granting the new trial, appellant contends the District Court did not state with particularity in the order the reasons for granting the new trial. Rule 59(f), M.R.Civ.P., provides that in granting a new trial the District Court:

[S]hall specify the grounds therefor with sufficient particularity as to apprise the parties and the appellate court of the rationale underlying the ruling, and this may be done in the body of the order, or in an attached opinion.

The order granting the new trial in this case clearly did not comply with the requirement of Rule 59(f), M.R.Civ.P

However, despite the fact that Rule 1, M.R.App.P., makes an order granting a new trial immediately appealable to this Court, appellant failed to appeal the District Court’s order. Instead, appellant waited until after the second trial, which took place two years after the order granting the new trial, to object to the content of the District Court’s order. It is not entirely clear what appellant is requesting that this Court do at this stage, but it appears that appellant is requesting that the matter be remanded to the District Court for a ruling on appellant’s motion to reconsider. As previously mentioned, the motion is deemed denied by the trial court’s failure to rule on the motion within 45 days. In any event, the question of the propriety of the trial court’s order is one which should have been considered earlier and is now rendered moot by the fact that a second trial has already occurred. The proper procedure would have been to appeal the initial order granting the new trial. This Court could then have remanded to the District Court, directing that an order be entered stating the reasons for granting the new trial. Appellant, if he still objected to the order granting the new trial, could then have appealed the order of the District Court and this Court could have considered the question of whether the District Court abused its discretion in granting the new trial. See Shannon v. Hulett (1983), 205 Mont. 345, 668 P.2d 228; Campbell v. Johnson (1990), 246 Mont. 122, 802 P.2d 1262. Appellant’s attempt to now raise this matter for the first time is barred by the doctrine of laches.

II

Did the District Court err in its distribution of the marital estate following the second trial?

Appellant attacks the findings, conclusions, and decree entered by the District Court following the second trial which relate to the distribution of the marital estate. In the past, this Court has employed an abuse of discretion standard in reviewing a lower court’s determination of the appropriate division of the marital estate. This Court has recently clarified that our standard of review in regard to the factual findings of the district court relating to the division of marital property is whether the district court’s findings are clearly erroneous. In re Marriage of Sacry (Mont. 1992), [253 Mont. 378,] 833 P.2d 1035, 49 St. Rep. 452. Concerning this Court’s review of conclusions of law made by a lower court we have stated that “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523. The basis for simply determining if the lower court’s conclusions are correct is that there is no discretion in determining a question of law. The lower court either correctly or incorrectly applies the law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

In adopting these standards of review in division of marital property cases, this Court is not in any way discounting the considerable discretionary power that must be exercised by district courts in these cases. The combs are obligated to fashion a distribution which is equitable to each party under the circumstances. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350; § 40-4-202, MCA. The courts, working in equity, must seek a fair distribution of the marital property using reasonable judgment and relying on common sense. Obtaining this equitable distribution will at times require the lower court to engage in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion by the lower court. Meridian Minerals v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456.

In distributing the marital estate following the second trial, the District Court relied primarily on the values of both assets and liabilities as determined at the time of the first trial in 1988 when the parties’ dissolution of marriage was granted. This procedure was in compliance with the general rule that the proper time for valuing the marital estate is at or near the time of dissolution, unless unique circumstances of the marital relationship exist. In re Marriage of Swanson (1986), 220 Mont. 490, 716 P.2d 219. Appellant alleges it was error for the District Court to reach such varied results in the second trial when the values from the first trial were used.

Following the first trial, the District Court determined that the value of Bennie Lee Danelson, Inc., was $81,135, which was discounted by 40 percent, making the final value $48,681. At the conclusion of the second trial, the value was determined to be $132,615. This variance results from the trial court’s inclusion of certain items in determining the net value of Bennie Lee Danelson, Inc., at the second trial. The court included in the marital estate certain premarital property and anticipated expenses which had been excluded at the first trial. Additionally, the court did not discount the value of the marital estate in the second trial.

At the second trial, the District Court properly included the value of certain premarital property of appellant which was previously excluded. The District Court found that the property did not exist in 1988 and that there had been no attempt during the marriage to segregate either the property or the funds from the sale of the property from the marital estate. The property was commingled with and became a part of the marital estate and was properly included as such at the second trial. In re Marriage of Metcalf (1979), 183 Mont. 266, 598 P.2d 1140. The inclusion of the premarital property of appellant was not clearly erroneous.

In the first trial, the District Court excluded from the value of Bennie Lee Danelson, Inc., certain anticipated expenses and short-term debt of appellant. At the second trial, the District Court included the anticipated expenses on the basis that it found the anticipated expenses had been included in the amount previously excluded for short-term debt and had in effect been excluded twice. This finding of the District Court is not clearly erroneous.

After obtaining the net value of Bennie Lee Danelson, Inc., in the first trial the District Court discounted that figure by 40 percent. The District Court refused to discount the net value as determined in the second trial. The District Court found that appellant has had and will continue to have full control over the corporate affairs and that appellant had no intention of selling or otherwise disposing of the corporation. Under these circumstances, the court was not clearly erroneous in not discounting the net value of the corporation as it had in the first trial. In re Marriage of Johnson (1986), 223 Mont. 383, 726 P.2d 332.

The method used by the District Court in the second trial to determine the value of Bennie Lee Danelson, Inc., resulted in a finding that the net value was $132,615. The District Court determined that appellant would keep the property and pay respondent one-half of the net value. Upon payment of the final installment, respondent was to turn over her shares in Bennie Lee Danelson, Inc., to appellant. The District Court’s decision to equally divide the value of Bennie Lee Danelson, Inc., between the parties resulted in an equitable division of the property. Appellant was allowed to keep intact the property and continue his ranching business, while respondent received her share of the monetary value of the asset. This decision by the District Court was not an abuse of discretion.

In the first trial, the District Corut ordered respondent to turn over her shares of the Lazy D Diamond to appellant. This order was not carried out in light of the District Court’s decision to allow a new trial. In the second trial, the District Court determined that appellant did not have the means to hold respondent harmless from their creditors in the event she turned over all her shares in the corporation. The court then determined that respondent would keep her shares, along with the right to corporate earnings and the liability for the corporate debt.

The evidence at trial suggested that since the separation respondent had not participated in the management of the corporation or assisted in paying the corporate liabilities. The testimony at trial further indicated that respondent had possibly even attempted at times to frustrate the operation of the Lazy D Diamond. In light of the acrimonious relationship between the parties, a different method of obtaining an equitable apportionment of the Lazy D Diamond might have been employed by the District Corut. However, the District Court was acting well within its discretion and this Court will not disturb what appears to be an equitable apportionment of the marital asset in question.

Finally, appellant was awarded 25 percent of the 1990 Conservation Reserve Program (CRP) payment, even though she had not participated in the management of the corporation for several years, and the CRP payments were traditionally earmarked to pay certain corporate debts. In this instance, the payment to appellant of a portion of the CRP payment, which was obtained several years after the separation due to the efforts of respondent, effectuates an injustice and is an abuse of discretion. In re Marriage of Wagner (1984), 208 Mont. 369, 679 P.2d 753. We reverse the award of the CRP payment to respondent and affirm as to all other aspects of the District Court’s judgment.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH, GRAY, WEBER and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN RE THE MARRIAGE OF RICHARD W. OVERTURF, Petitioner and Appellant, and RUBY N. OVERTURF, Respondent and Respondent.
    No. 92-125.
    Submitted on briefs June 4, 1992.
    Decided July 9, 1992.
    49 St.Rep. 613.
    253 Mont. 321.
    833 P.2d 213.
    For Appellant: Kevin T. Sweeney, Sweeney & Healow, Billings.
    For Respondent: Dane C. Schofield, Peterson & Schofield, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Richard W. Overturf (Richard) commenced dissolution of his marriage to Ruby N. Overturf (Ruby) in the Thirteenth Judicial District, Carbon County, Montana. The District Court signed the Final Decree of Dissolution on November 28, 1989. Ruby later moved for reconsideration of the dissolution decree to provide for an award of maintenance or recalculation of entitlement to retirement benefits. The District Court granted the motion and awarded Ruby $340 per month in maintenance. Richard appeals and we reverse.

The issue on appeal is whether the District Court erred when awarding Ruby $340 per month in maintenance.

The parties’ marriage spanned approximately twenty-two years and began when the couple married in the Philippines on April 7, 1966. Richard was a career officer in the United States Navy and progressed through the military hierarchy until he reached the rank of Lieutenant Commander. Ruby never obtained any formal education beyond the eighth grade but was licensed as a barber and beautician. Throughout the marriage Ruby performed hair-cutting services in barber shops or beauty parlors and at times was self-employed performing similar services.

The parties had no children together and lived apart for approximately six years; Richard in Red Lodge, Montana and Ruby in Virginia Beach, Virginia. Despite this long separation, neither party initiated dissolution proceedings until May of 1988 when Richard filed for dissolution.

There was no provision for maintenance in the dissolution decree, apparently due to the property division provisions they agreed upon. Accordingly, the decree addressed Richard’s anticipated military pension and the percentage of distribution to each party. Based on an estimated monthly retirement income of $1,830.18, the court determined that when Richard retired from the Navy, Ruby should receive 30 percent or $549 per month, and Richard should receive the remaining 70 percent. During the pending dissolution, Richard was undergoing a medical evaluation for a possible disability retirement. Richard was eventually diagnosed with degenerative disk disease and was involuntarily discharged from the Navy with a medical disability.

As a result of Richard’s medically disabled designation, the Navy informed Ruby in a letter dated December 12, 1990, that according to the Uniformed Services Former Spouse’s Protection Act (the Act) (Public Law 97-252), she would receive $46.50 on a monthly basis. The drastic reduction in Ruby’s entitlement came about because the Act excludes entitlement to payments made under a disability designation. Since Richard’s designation as medically disabled, he received $1,134 per month in disability. Of that amount, approximately $979 is considered “disability retirement pay” while $155 is designated as “non-disability disposable retirement pay.” Therefore, Ruby is only entitled to 30 percent of the non-disability disposable retirement pay, or $46.50 per month.

Based on this drastic reduction, on January 7, 1991, Ruby moved the court and filed a motion entitled “Motion for Reconsideration.” That motion requested modification of the dissolution decree to provide for maintenance or, in the alternative, recalculation of Ruby’s entitlement to retirement benefits in order to equitably divide the marital property.

The District Court, the Hon. Todd Baugh presiding, granted Ruby’s motion and amended the decree; requiring Richard to pay Ruby maintenance of $340 per month (30 percent of Richards disability retirement income of $1,134) in addition to the $46.50 she received directly from the Navy as her portion of Richard’s retirement. Richard now appeals to this Court.

We previously have said that “this Court’s function on appeal is limited to a determination of whether the district court’s findings are clearly erroneous.” In re Marriage of Eide (1991), 250 Mont. 490, 493, 821 P.2d 1036, 1038.

The parties’ original dissolution decree contained no provision for maintenance. Therefore, the controlling statute is § 40-4-203(1), MCA, which reads as follows:

In ... a proceeding for maintenance following dissolution ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment

Section 40-4-203(1), MCA; also see In re Marriage of Dunn (1991), 248 Mont. 95, 98, 809 P.2d 571, 573.

After a review of the record we find that Ruby did not meet the requisite elements of the statute and therefore, is not entitled to a maintenance award. The record indicates that Ruby is able to provide for her reasonable needs through earned income and property obtained in the dissolution. Ruby obtained real property including a residence in Virginia Beach, Virginia and lake property in North Carolina at Lake Gaston Estates. Further, Ruby is able to continue offering barber services which is appropriate employment. Ruby’s own testimony indicates that she can make approximately $70 per week performing barber services at her current place of employment, although the amount could fluctuate depending upon patronage.

Ruby stated in her deposition that she requires $700 per month to cover her expenses. We also note that Ruby’s affidavit states that her monthly need is $832.71. Her approximate monthly income totals just over $800 which is derived from: barber services ($70 or more per week), Naval retirement income ($46.50), Social Security ($355), IRA and various other sources. Therefore, it cannot be said that she is ■unable to support herself, nor does she lack sufficient property to provide for her reasonable needs.

Because Ruby fails to meet the requirements of § 40-4-203(l)(a) and (b), MCA, it is unnecessary for us to progress to the standards set forth later in the same statute at § 40-4-203(2)(a) through (f), MCA.

We also note that the record indicates that Richard is currently on the Navy’s “Temporary Disability Retirement List.” His status is to be reviewed on a eighteen month basis with a final evaluation to be completed in five years. At the end of five years, if Richard has not been designated as “Permanently Disabled” he could begin receiving his normal retirement pay. Accordingly, Ruby would then be entitled to approximately $549 per month, as previously estimated, which is 30 percent of Richard’s regular monthly retirement pay.

Failing to meet the necessary standards for an award of maintenance, we return this matter to the District Court to enter findings consistent with this opinion. Reversed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and GRAY concur.


author: JUSTICE HARRISON JUSTICE TRIEWEILER

text:
    SOURDOUGH PROTECTIVE ASSOCIATION, INC., a Montana corporation, Plaintiff and Appellant, v. BOARD OF COUNTY COMMISSIONERS OF GALLATIN COUNTY and HIGH RIDGE ESTATES OF MONTANA, INC., Defendants and Respondents.
    No. 91-390.
    Submitted on briefs Mar. 12, 1992.
    Decided June 29, 1992.
    49 St.Rep. 563.
    253 Mont. 325.
    833 P.2d 207.

      For Appellant: Terry F. Schaplow, Bozeman.
    For Respondents: A. Michael Salvagni, Gallatin County Attorney, and Michael J. Lilly, Lilly, Andriolo & Tollefson, Bozeman.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Sourdough Protective Association Inc. (Sourdough) appeals from the Judgment of the District Court of the Eighteenth Judicial District, Gallatin County, Montana, which dismissed Sourdough’s appeal and denied Sourdough’s motion for a stay of proceedings. We affirm.

This appeal originates from the respondent’s, High Ridge Estates of Montana, Inc. (High Ridge), application to the Board of County Commissioners of Gallatin County (Board) for a preliminary plat approval of a proposed subdivision. High Ridge desired to subdivide real property located within the jurisdiction of the City of Bozeman as well as the jurisdiction of Gallatin County.

Initially, High Ridge presented the subdivision concept to the City-County Planning Board which indicated to the Board that it would accept an invitation to review the proposal in total. In January of 1990, the Board declined the City-County Planning Board’s invitation, citing concerns about possible unauthorized expansion of that entity’s planning jurisdiction. Accordingly, High Ridge applied to the Board for preliminary subdivision plat approval. In December of 1990, after public notice and hearing, the Board granted conditional approval of the proposed subdivision application and issued Findings of Fact.

In January 1991, Sourdough appealed the Board’s decision to District Court requesting that a Writ of Mandamus be issued directing the Board to appoint the City-County Planning Board to review the entire project and reverse the Board’s Findings of Fact. In February of 1991, High Ridge, whose motion to intervene was later granted, and the Board filed motions to dismiss under Rule 12(b)(6), M.R.Civ.P. Sourdough moved for a stay on May 6, 1991. The District Cotut conducted a hearing on all motions on May 13, 1991. The District Court denied Sourdough’s motion for a stay on June 3,1991, and dismissed the appeal a day later.

The issues on appeal are as follows:

I. Whether the District Court erred in granting the respondents’ motions to dismiss Sourdough’s petition for appeal.

II. Whether the District Court erred in denying Sourdough’s motion for a stay of proceedings.

We previously set forth the standard of review regarding discretionary trial court rulings as follows:

Our standard of review relating to conclusions of law is not to be confused with our review of discretionary trial court rulings. This has been defined as “encompassing the power of choice among several courses of action, each of which is considered permissible.” See Aldisert, The Judicial Process, 1976, page 759. Such rulings are usually trial administration issues, scope of cross-examination, post-trial motions, and similar rulings. The standard of abuse of discretion will be applied to these rulings.

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604. Therefore, we confine our review to encompass only whether the District Court abused its discretion in dismissing Sourdough’s petition for appeal and for denying Sourdough’s motion for a stay.

I. Dismissing Sourdough’s petition for appeal.

Sourdough asserts that it properly appealed under § 76-2-110, MCA. However, this statute deals with planning and zoning issues and cannot be interpreted, as Sourdough urges, to apply to the subdivision issue in the case at bar. Instead, the applicable sections regarding subdivision issues are §§ 76-3-101 et seq., MCA, which is Montana’s Subdivision and Platting Act. The purpose of the Act is to “promote the public health, safety, and general welfare by regulating the subdivision of land-,...” Section 76-3-102, MCA (emphasis added). The legislature did not provide an appeal process under this Act for cases involving decisions of conditional approval of preliminary plats; accordingly, this Court, will not fabricate one. The District Court did not err in concluding that § 76-2-110, MCA, is inapplicable in the case at bar.

In the same manner, Sourdough asserts that its appeal was proper under § 2-4-702, MCA. Again, Sourdough misapplies this statute to the case at bar. Sections 2-4-701 et seq., MCA, are contained in the Montana Administrative Procedure Act (MARA) and apply to administrative agencies. However, the County Board of Commissioners is specifically excluded from the agency definition of MAPA via § 2-4-102(2)(b), MCA, which states that an “[ajgency does not include a school district, unit of local government, or any other political subdivision of the state.” Therefore, the appeal provisions of MAPA do not apply to the case at bar. Since Sourdough cannot properly appeal under § 2-4-702, MCA, the District Court did not abuse its discretion in arriving at that conclusion.

Respondents moved to dismiss under Rule 12(b)(6), M.R.Civ.P., because Sourdough failed to state a claim upon which relief could be granted. We have previously said that a motion to dismiss under Rule 12(b)(6), M.R.Civ.P., should not be granted “unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Proto v. Missoula County (1988), 230 Mont. 351, 353, 749 P.2d 1094, 1096; quoting Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84.

We affirm the conclusion of the District Court that § 76-2-110, MCA, does not contain authorization to Sourdough to prosecute the present appeal, and that § 2-4-702, MCA, does not provide a legal basis upon which Sourdough may prosecute this appeal. We hold the District Court properly granted the respondents’ motions to dismiss Sourdough’s petition for appeal. In affirming the dismissal by the District Court on the foregoing basis, we do not find it necessary to consider the remaining conclusions of the District Court in which it weighed the conduct of the Board of County Commissioners and concluded that the Board did not abuse its discretion.

II. Denial of Sourdough’s motion for a stay of proceedings.

Sourdough asserts that the District Court erred in not granting its motion for a stay of proceedings. A review of the record indicates that Sourdough failed to cite authority for this position. The transcript of the May 13,1991 hearing on motions to dismiss and for a stay further indicates Sourdough’s lack of authority for the stay. The testimony, in part, was as follows:

THE COURT:... So, what do you think about his position that this really isn’t a stay motion. It’s a motion for an injunction.
MR. SCHAPLOW [counsel for Sourdough]: Well, your Honor, we feel like it is a motion for a stay.
THE COURT: What’s your authority for that?
MR. SCHAPLOW: We feel that a motion for stay is appropriate here as we’ve mentioned in our brief. We’re simply asking that the Court stay the action of the County Commissioners until such time as the Bozeman Area Transportation Plan has been updated as will be testified by Mayor Hawks. A motion for stay is a typical motion that’s brought in these kinds of proceedings to hold in obeyance any actions taken by the governing body until such time as the Court decides on the merits, or, as we’ve indicated here, until such time as the Bozeman Area Transportation Plan is updated. THE COURT: You’re asking that the County Commissioners’ actions be stayed at this point.
MR. SCHAPLOW: That’s true.
THE COURT: Haven’t they already acted by approving the subdivision?
MR. SCHAPLOW: Well, they’ve approved it conditionally, by allowing the developer, High Ridge Estates, to go through a lot of procedural applications and so forth, which would ultimately end up in the construction of roads and various other improvements that have been contemplated ....

We agree with the District Court that Sourdough’s motion for a stay is without statutory basis or other authority. In the event that the stay motion is interpreted as a preliminary injunction it must also fail as it does not meet the statutory criteria for such a motion as set forth by § 27-19-104, MCA.

Finding no abuse of discretion, we hold that the District Court ruled correctly in dismissing Sourdough’s appeal and in denying the motion for a stay of proceedings. Affirmed.

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

JUSTICE TRIEWEILER

specially concurring:

I reluctantly concur in the opinion of the majority.

It does not appear that either § 2-4-702, MCA, or § 76-2-110, MCA, allows an appeal from the county commissioners’ preliminary plat approval of a proposed subdivision. However, it does seem anomalous that the legislature would enact specific criteria, such as those found in § 76-3-608, MCA, which must be met before a local commission can approve a subdivision, and then provide no means of judicially enforcing the law.

This opinion has not dealt with the issue of whether a writ of review or certiorari is available should county commissions or other local governing bodies ignore these criteria which have been enacted to “promote the public health, safety, and general welfare.” Section 76-3-102, MCA. Therefore, I express no opinion about whether this decision leaves people who object to subdivisions, without any legal remedy. However, it does seem important to me that if the legislature’s omission of an appeal provision comparable to § 76-2-110, MCA, from the Montana Subdivision and Platting Act was inadvertent, that omission be remedied for the purpose of future review.

My concurrence in the majority opinion is based simply upon the record before the Court and the legal issues raised in this case. It is not intended to imply that there is no other method by which the decisions of local governmental bodies can be reviewed judicially.


text:
    STATE EX REL. PARK COUNTY, Relator, v. MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY, THE HONORABLE BYRON L. ROBB, Presiding Judge, Respondent.
    No. 92-246.
    Decided June 30, 1992.
    49 St.Rep. 575.
    253 Mont. 331.
    833 P.2d 210.
   ORDER AND OPINION

This Court on May 28,1992, in response to an application for writs, ordered the respondent/plaintiff (Kenneys), to respond to the application within a determined time period and further ordered that the preliminary and permanent injunctions enjoining Park County from interfering with Kenneys’ removal and disposal of sludge and debris temporarily be vacated and stayed. Kenneys having now filed its response and brief the matter is ripe for decision. We dissolve the injunctions.

Park County has filed herein an application for a writ of supervisory control and other appropriate writs of relief. However, we will treat the application as an appeal. Under Rule 1(b)(2), M.R.App.R, a party may appeal from a judgment or order granting or dissolving an injunction, or refusing to grant or dissolve an injunction. We will not consider whether the facts set forth meet the criteria for our consideration and exercise of jurisdiction over an application for writ of supervisory control.

In 1991 Park County (County) entered into a contract with Kenneys, which called for repairs and renovations to the Waste Water Treatment Plant in Gardiner, Montana, including the installation of an impermeable liner under two large settling ponds. As part of the repair process, Kenneys was to remove and dispose of the sludge which had settled to the bottom of each pond. In the contract there was a base amount for the removal of 60 cubic yards of sludge based on an estimated quantity of sludge in the ponds. This estimate was prepared by H.K.M. Associates Engineers/Planners, the engineering firm retained by the County, so in the contract was a requirement that a unit price be submitted for each additional cubic yard over and above the 60 cubic yards of sludge which might be removed. Kenneys proceeded to remove the sludge from the first of the two ponds. Thereafter it submitted a claim for $120,000, alleging that it had removed at the very least 2400 cubic yards of sludge based on a percentage of solid content. Kenneys further asserted a right to $240,000 for 4800 cubic yards of sludge based on a different percentage of solid content. The County objected to this claim and has not paid the same.

On March 19,1992, the County ordered deletion from the contract the sludge removal on the second aeration pond which it argued was permissible under the construction contract. Previous to the deletion, on February 25, 1992, Kenneys filed suit in the District Court of the Sixth Judicial District for breach of contract, claiming nearly $200,000 in damages for payment allegedly due for work on the first pond. As part of that lawsuit, on April 29, 1992, the District Court granted a preliminary injunction and ordered that the County was enjoined from interfering with Kenneys’ performance of the sludge removal work on the second aeration pond.

Subsequently, both parties filed motions, including motions to dissolve, and motions for contempt. A hearing was set on the motions for May 11, 1992. On May 6, 1992, Kenneys filed a motion for summary judgment contending that the County’s deletion order constituted a breach of contract. On May 7, 1992, Kenneys filed a second motion for summary judgment asking the court to convert the preliminary injunction into a final injunction. On May 8, 1992, the County telefaxed to Kenneys’ counsel a formal objection to the hearing on the motions for summary judgment and especially declined to waive the County’s right to the ten day notice period on these motions. The County’s formal objection to the early hearing on Kenneys’ motion for summary judgment was hand delivered to the court on May 11, 1992. The District Court overruled the County’s objections to the hearing on the summary judgment motions. Following oral argument, the District Court denied Kenneys’ motion for contempt, and denied Kenneys’ motion for summary judgment on the contract. Further, the District Court denied the County’s motion to dissolve or modify the injunction, and denied the County’s motion for summary judgment relative to Kenneys’ claim for injunctive relief. However, the District Court granted Kenneys’ motion for summary judgment requesting the County be permanently enjoined from interfering with Kenneys’ performance of the sludge removal contract. The oral ruling was reduced to writing on May 12,1992 and this application followed.

Our scope of review relative to the issue of whether or not injunctive relief was improper, is to determine whether the District Court’s determination as to the law is correct. See Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Section 27-19-103(5), MCA (1991), provides as follows:

An injunction cannot be granted:

(5) to prevent the breach of a contract the performance of which would not be specifically enforced;

Generally construction contracts cannot be specifically enforced because performance would constitute a personal service approximating involuntary servitude. Further, money damages provide an adequate legal remedy. One of the most common applications of this rule is found in cases involving building and construction contracts. These contracts will not be specifically enforced, partly because damages at law are an adequate remedy, and partly because of the incapacity of the court to superintend their performance. See 71 Am.Jur.2d, Specific Performance § 165 (1973).

Here, Kenneys have an adequate remedy at law for damages under the contract. As to this contract, it can be readily envisioned, that questions will arise and be presented to both the District Court and to this Court, as they have in the past, which will put the court system in the position of superintending the performance of a contract. As stated above, this is one of the major reasons why the performance of this contract should not be specifically enforced.

Kenneys argue that injunctive relief is appropriate because section 6.29 of the contract creates an obligation of specific performance on the part of the contractor. If the contract is found to require specific performance, then the remedy of specific performance is made reciprocal by operation of law. See § 27-1-414, MCA. Section 6.29 of the contract provides as follows: •

CONTRACTOR shall carry on the work and adhere to the progress scheduled during all disputes or disagreements with owner. No work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by paragraph 15.5 [termination] or as CONTRACTOR and OWNER may otherwise agree in writing.

However, section 6.29 is a contractual obligation which informs the contractor that he is expected to continue his work even though there might be disputes or disagreements with the owner. This does not mandate specific performance. A contractor would still be free to breach the contract and then be liable for money damages by reason of that breach.

The District Court granted summary judgment in favor of Kenneys. By granting Kenneys’ motion for summary judgment and permanently enjoining the County, the court determined that any deletion of the sludge removal portion of the project would be a breach of the contract, and made a determination whether the County had a basis to delete the work. However, the County was not given the ten days notice required under Rule 56(c), M.R.Civ.P., from the time of service of the motion for summary judgment to the time fixed for the hearing. The County made proper objections as required by Rule 56(c), M.R.Civ.P., and the County did not waive the requirement of ten days notice under Rule 56(c). Therefore, the District Court was without authority to grant Kenneys’ motion for summary judgment. The injunctions are vacated and dissolved and the order of summary judgment is set aside and the cause is remanded to the District Court for further proceedings.

DATED this 30th day of June, 1992.

s/ J.A. Turnage. Chief, Justice

s/ John Conway Harrison. Justice

s/ Karla M. Cray. Justice

s/ William E. Hunt. Sr.. Justice

s/ R.C. McDonough. Justice

s/ Terry Trieweiler. Justice

s/ Fred J. Weber. Justice


text:
    OAR LOCK LAND & CATTLE CO., a/k/a/ OAR LOCK LAND & CATTLE COMPANY; JIMMIE LUE EDDLEMAN; and WARREN DAN EDDLEMAN, Plaintiffs and Appellants, v. CROWLEY, HAUGHEY, HANSON, TOOLE & DIETRICH, a partnership; JOHN M. DIETRICH; ARTHUR F. LAMEY, JR.; ALLAN L. KARELL; AND HALL & HALL, INC., a corporation, Defendants and Respondents.
    No. 91-336.
    Submitted on briefs Apr. 15, 1992.
    Decided May 28, 1992.
    Rehearing Denied June 25, 1992.
    49 St.Rep. 456.
    253 Mont. 336.
    833 P.2d 146.

      For Appellants: Eldon Silverman, Elrod, Katz, Preeo, Look, Moison & Silverman, Denver, Colorado; Randy S. Laedeke, Laedeke Law Office, Billings.
    For Respondents: Stephen H. Foster, Jeanne M. Bender, Holland & Hart, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, Montana, which granted respondents’ motion for summary judgment in an attorney malpractice claim. We affirm.

This action arose from a series of loan transactions which initially began sometime in 1965. At that time, John Dietrich (Dietrich) and Art Lamey (Lamey) of the Crowley, Haughey, Hanson, Toole & Dietrich Law Firm (Crowley) represented both the appellants and the Connecticut Mutual Life Insurance Corporation (CML) in a real estate/loan transaction in which the appellants acquired ranch land. In 1967, Crowley again aided the appellants and CML in another loan transaction. From 1967 through 1972 Crowley represented the appellants in numerous ranch related matters.

In 1974, the appellants requested that Dietrich draft their wills. Dietrich declined due to his workload and appellants then hired Gene LaLonde (LaLonde), a non-Crowley lawyer, to handle their wills. LaLonde also represented the appellants in 1975 to incorporate the Oar Lock Land & Cattle Company.

In 1978 the appellants formed a partnership with Sumner Gerard (Gerard) known as the Paradise Land and Livestock Company; the purpose of the partnership was to purchase a ranch in Nevada. During this transaction Gerard was represented by Crowley and appellants were again represented by LaLonde. Also in 1978, appellants obtained another loan from CML and there is disagreement about who represented the parties. The appellants claim that Crowley and another non-Crowley lawyer jointly represented the parties. Crowley contends that it represented CML and LaLonde represented the appellants.

In the early to mid 1980s, the appellants began to experience financial difficulties and the Crowley firm represented the Paradise Land and Livestock Company in the sale of the Nevada ranch. In 1984, Dietrich reviewed an agreement for M.E. Eddleman, one of the appellants, regarding a trust/financing arrangement with an individual in North Dakota. Dietrich advised Mr. Eddleman to find out more about the individual before considering the transaction and referred Mr. Eddleman to a New York branch office of a Swiss bank. Dietrich never heard about the matter again. In 1985-86, the appellants hired the firm of Anderson, Brown to represent them in a bank loan default initiated by Norwest bank.

In 1986, Anderson, Brown represented the appellants in negotiations with CML regarding delinquent payments on the 1978 loan. In 1988, the appellants defaulted in their payments to CML on the 1978 loan and the Crowley firm, while representing CML, foreclosed upon appellants. The District Court entered default judgment against the appellants on September 28,1988, after which a foreclosure sale took place.

On November 29, 1989, with counsel of record Chris J. Nelson (Nelson), the appellants moved, but later withdrew their motion, to set aside the judgment with respect to a grazing lease. On February 7,1990, Nelson filed two motions: first, a Rule 60(b) motion to set aside the default judgment and decree of foreclosure; and second, a motion to disqualify the Crowley firm from representing CML. The primary claim asserted in the motions was that Crowley acted adversely to its former clients (the appellants) when it represented CML in the foreclosure proceeding. The motions were deemed denied pursuant to Rules 60(c) and 59(g), M.R.Civ.R Further, the parties also stipulated to dismissal of the motions without prejudice on April 17, 1990.

On May 25,1990, the appellants filed a complaint alleging various causes of action including that Crowley committed malpractice by acting adversely to the appellants by refusing to resign as attorneys for CML. Crowley moved for summary judgment. After a November 2, 1990 hearing, the District Court found no genuine issues of material fact and granted Crowley’s motion for summary judgment. Appellants now appeal to this Court.

The dispositive issue on appeal is whether the District Court erred in granting the respondent’s motion for summary judgment in an attorney malpractice claim.

Summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; also see Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. The moving party has the initial burden of proof to show that no genuine issues of material fact exist. Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 521, 731 P.2d 327, 330. Once the moving party meets the burden, it is up to the non-moving party to establish that genuine issues of material fact exist. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. Therefore, we confine our review in the case at bar to a determination of whether genuine issues of material fact exist that would require reversing the District Court.

In addressing the malpractice claim, we first state the requisite elements for attorney malpractice:

In a malpractice action, the plaintiff must prove that an attorney-client relationship existed and that the act constituting negligence or breach occurred. The plaintiff must show that “but for” such negligence the client would have been successful in the prosecution or defense of the action. Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337. Finally, the plaintiff must establish that the negligent act proximately caused his damages. Thelen v. City of Billings (1989), 238 Mont. 82, 85-6, 776 P.2d 520, 523-24.

Grenz v. Prezeau (1990), 244 Mont. 419, 426, 798 P.2d 112, 116.

This case can be decided on the basis of the first element, the existence of an attorney-client relationship. The appellants assert that an attorney-client relationship existed from 1965 until the time of the 1988 foreclosure proceeding, when the Crowley firm committed legal malpractice by representing CML in the foreclosure action against them. We disagree. The record indicates that Crowley did represent the appellants in various matters over the years, but had not represented them in any matter since 1984.

The appellants claim that the interactions they had with Crowley throughout the foreclosure proceedings in 1988 prove it was still acting as counsel for the appellants. To support this claim, among other things, appellants assert that several documents generated during the 1978 loan prove that Crowley was representing them. These documents included a memo created internally by Crowley entitled “new matter memo” which listed the appellants’ names under “additional names to be indexed: for client” and, a letter from Crowley to CML stating that “Mr. Eddleman is anxious for an early closing.” The District Court did not find this evidence persuasive in establishing that an attorney-client relationship existed between Crowley and the appellants subsequent to 1984, and neither do we.

The new matter memo clearly lists the name of Connecticut Mutual Life Insurance under the heading of “Client.” Further, the letter referencing Eddleman’s desire for an early closing does not prove or even suggest that Crowley was representing the appellants.

In total, the documents and other information asserted by the appellants do not amount to an attorney-client relationship. The attorney-client relationship between Crowley and the appellants was terminated prior to the foreclosure proceeding.

The general rule is that an attorney cannot be an attorney for both adverse parties ... Nor does it affect the situation that there has been a termination of the relationship as to one adverse party ... The obvious reason for the latter is that an attorney cannot use the information gained in confidence against the person confiding in him. However, this rule does not bar the attorney, when the relationship has terminated, from representing a client adverse to his former client if the matter in controversy is different or even though the controversy arises out of facts with which the attorney might have been familiar. Before appellant can complain of the participation of [the attorney] in the trial, he must show that the disclosures made in the former employment were used prejudicially against appellant. [Citations omitted.]

Butler Brothers Dev. Co. v. Butler (1941), 111 Mont. 329, 351, 108 P.2d 1041,1052, over ruled in part on other grounds, 213 Mont. 6, 13, 689 P.2d 268, 272 (1984). After reviewing the record, we find that under Butler, Crowley was not barred from representing CML in the foreclosure proceeding, and did not commit malpractice in doing so.

Finding that no attorney-client relationship existed between the appellants and Crowley at the time of the foreclosure, we find it unnecessary to address the other two requisite attorney malpractice elements. The appellants’ claims are insufficient to withstand summary judgment since they failed to raise genuine issues of material fact regarding attorney malpractice. The District Court did not err in granting summary judgment to Crowley.

Affirmed.

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


author: JUSTICE McDONOUGH

text:
    IN THE MATTER OF RAYMOND W. GEORGE TRUST, SHIRLEY G. BRAGG, Trustee
    No. 91-351.
    Submitted on Briefs Mar. 26, 1992.
    Decided May 12, 1992.
    49 St.Rep. 424.
    253 Mont. 341.
    834 P.2d 1378.

      For Appellant: Dan Yardley, Yardley & Yardley, Livingston; John T. Jones, Moulton, Bellingham, Longo & Mather, Billings; Robert Baldwin, Goetz, Madden & Dunn, Bozeman.
    For Respondent: Joseph T. Swindlehurst, Huppert & Swindlehurst.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Shirley Bragg, Trustee of the Raymond W. George Trust (Trustee Bragg) appeals from an order of the Sixth Judicial District, Park County. The District Court denied Trustee Bragg’s motion to withdraw her previously granted petition for declaration of right and authority to sell real property held in the trust to Double AA Corporation (Double AA). The court further ordered that Trustee Bragg proceed with the sale to Double AA and enjoined her from permitting logging operations on the ranch property. Intervenor, James W. Sievers (Sievers), and Trustee Bragg appeal. We affirm in part and reverse in part.

We will address the following issues:

I. Did the District Court err by granting Trustee Bragg the right and authority to sell real property held in trust?

II. Did the District Court err by ordering Trustee Bragg to proceed with the sale to Double AA?

III. Did the District Court err by enjoining Trustee Bragg from permitting any logging to occur on the subject property?

In addition to the issues as stated above, there is a motion before the Court to take judicial notice of admissions requested and unanswered in previous litigation involving this trust. We generally will not allow a party, Sievers as intervenor in this case, to introduce additional evidence once a case has been brought for appeal. Downs v. Smyk (1979), 185 Mont. 16, 604 P.2d 307. In Smyk, we refused to examine a deposition given in a proceeding previously decided by this Court because the deposition was extraneous to the record on appeal.

Here, the admissions we are asked to consider were filed in an action in United States District Court by Sievers in his attempt to remove Bragg as Trustee. The instant case arises from a petition filed by Trustee Bragg in the Sixth Judicial District Court requesting a declaration of right and authority to proceed with sale of trust real property to Double AA. The requested admissions were not considered by the trial court in this matter and will not be considered on appeal. “In equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record ...” [emphasis supplied] §3-2-204(5), MCA. Sievers’ motion to take judicial notice of the requested admissions is therefore denied.

Raymond W. George died in April 1974. His will, probated in the Sixth Judicial District, Park County, created a testamentary trust, the corpus of which includes the real property that is the subject of this action. His widow, Olga George, was named as income beneficiary; Raymond’s children were named as remaindermen; and Maxine George, one of Raymond’s children, was named as trustee. Appellant, Shirley Bragg, another of Raymond’s children, became successor trustee following Maxine George’s death. Maxine’s remainder interest in the trust passed at her death to Cleto McPherson, Maxine’s husband and sole heir.

Leo Ray George, another of Raymond’s children, and Cleto McPherson conveyed their remainder interest in the trust, by separate deeds, to intervenor James W. Sievers. Sievers currently holds a % interest as beneficiary in the remainder of the trust.

Trustee Bragg initiated this action after entering an agreement with Double AA Corporation to sell the real property held in the trust for $1,300,000, and other benefits. The court entered an order granting Trustee Bragg permission to sell the trust property. Thereafter, Trustee Bragg filed a motion requesting to withdraw her petition and to cancel the sale to Double AA. The District Court denied the motion and ordered that the sale proceed. The court further granted Double AA’s motion to enjoin logging or any other waste from occurring on the property. Trustee Bragg and Sievers appeal.

Despite Trustee Bragg’s initial request for court approval of sale of the subject ranch property, Bragg now contends that such sale is impermissible because it is inconsistent with the testator’s intent and against the best interests of the beneficiaries. This action was filed pursuant to §72-35-301, MCA, which provides the court equitable jurisdiction, upon application of the trustee or any beneficiary, to approve discretionary acts of the trustee. The appellants contend that a review of Raymond George’s will as a whole reveals that he intended to preserve the ranch unless sale was necessary to maintain the health and maintenance of his widow, Olga.

The will, and the trust instrument incorporated therein, expressly provides the trustee the power and necessary authority to sell the real property held in trust. However, the appellants contend that regardless of any expressed provision granting specific powers to the trustee. § 72-34-130(1), MCA, mandates that a trustee:

... shall act in accordance with fiduciary principles and may not act in disregard of the purposes of the trust.

The appellants rely on various references to the trust as “real property”, throughout the will, as demonstrating Raymond George’s intent to maintain the corpus of the trust as real property. The appellants further rely on Paragraph V (the portion of the will which creates the trust), part b of the will which provides:

The Trustee may, in her sole and absolute discretion, invade the principle of the Trust and pay so much thereof as maybe necessary, to or for the benefit of my wife, for her health and maintenance, if all other sources of property of my wife shall be exhausted.

The above language is argued to limit the sale of property to circumstances where such sale is necessary for the health and continued maintenance of Olga George. Because there is no such necessity in the instant case, it is argued that the sale is beyond the discretionary powers of the trustee.

We agree with the appellants that:
The intention of the testator should control the disposition and the intent shall ‘be found from all parts of the will ... construed in relation to each other ... to form one consistent whole.’ “

Estate of Evans (1985), 217 Mont. 89, 94, 704 P.2d 35, quoting In the Matter of the Estate of Erdahl (1981), [193 Mont. 103,] 630 P.2d 230, 231, 38 St.Rep. 978, 980. However, we do not agree with the conclusion that Trustee Bragg would be acting beyond her discretion by exercising her power of sale of the property.

Paragraph V, part b, quoted above, does not limit the trustee’s authority to sell the property. The words of limitation relied on by the appellants refer specifically to invasion of the corpus of the trust. There is no indication that Trustee Bragg intends to invade the corpus of the trust, her request is merely to change the character of the trust investment from land to cash. The powers exercisable by the trustee include the discretion to sell the ranch or any other asset held by the trust.

Numerous provisions of the trust instrument provide clear support for sale of the real property. For example, section r of “Powers Exercisable By Trustee” provides the trustee the power:

To sell publicly or privately, for cash or on time, without an order of the cotut, upon such terms and conditions as to her shall seem best, any property, real or personal, included in the estate ...

The bulk of the trust “estate”, as intended and created by Raymond George, is the ranch property. There is no doubt that the trustee was authorized to sell the ranch consistent with her fiduciary duties. We conclude that Trustee Bragg had the right and authority to sell the ranch and the District Court is affirmed on this point.

The District Court noted, in its original order, two issues necessary for resolution of the action filed by Trustee Bragg; whether or not Trustee Bragg has the legal authority to sell the ranch (addressed above) and whether or not the proposed sale to Double AAis fair and equitable. The District Court found Double AA’s offer of $1,300,000, and other benefits, to be very fair and reasonable. This finding is supported by the evidence, is not clearly erroneous, and is therefore affirmed.

We turn now to whether or not the District Court erred by ordering Bragg to proceed with the sale to Double AA. During the proceedings, the District Court specifically noted in an order that:

It does not appear to the court at this point that this action on the petition to approve sale of the trust property is the proper vehicle to determine the merits of any claim of Double AA against the trustee and other interested persons for specific performance, breach of contract, or damages.

Later, the District Court, in an effort to avoid further litigation, did in fact order specific performance of the sale.

Rule 54(c) M.R.Civ.P., allows the court to grant relief to which a party is entitled even if such relief was not demanded in the party’s pleading. However, the court may not grant relief not specifically requested when the facts and issues necessary to support such relief have not been tried and proven at trial. Smith v. Zepp (1977), 173 Mont. 358, 567 P.2d 923. Long ago we stated that the court could grant “any relief to which the plaintiffs are entitled upon the allegations of the complaint and the proof introduced at trial”, [emphasis supplied], Merk v. Bowery Mining Co. (1904), 31 Mont. 298, 78 P. 519.

This is neither a proceeding for specific performance nor an action to litigate the rights between the trust and Double AA. No opportunity was ever provided to the parties to present evidence relative to the enforcement of the agreement. The validity of the contract between the trust and Double AA and any rights of the parties resulting from the contract were not the subject of the litigation. The evidence presented only regarded the fairness and reasonableness of Double AA’s offer and the agreement that the parties entered. Whether or not any or all of the conditions of that agreement have been met such that specific performance is appropriate is beyond the scope of both the pleading and proof introduced.

Double AA contends the court’s order to proceed with the sale to Double AA was a proper exercise of its equitable supervisory authority over the internal affairs of the trust. Section 72-35-301, MCA. However, it remains that any relief provided by the court must be based on evidence presented before the court. The equitable question of specific performance was not properly raised and litigated. Therefore, we conclude that the District Court’s order to proceed with the sale was in error and the District Court is reversed on this point.

The final issue for our review is whether or not the court erred by enjoining logging operations on the ranch. On May 29, 1991, Double AA applied for an order restraining Trustee Bragg from logging trust property. The motion was granted June 5, 1991. No hearing has ever been held regarding the injunction.

Section 27-19-314, MCA, provides that an injunction issued without a hearing is a temporary restraining order. By law, a temporary restraining order expires in 10 days. Section 27-19-316(4), MCA. The District Court in its order and accompanying memorandum stated that it was granting the injunction regardless of whether the order strictly complies with the injunction statutes. We conclude that the District Court acted beyond its discretion and contrary to the statutory mandates regarding injunctive relief. Therefore, we reverse the court and dissolve the injunction.

The District Court is affirmed in part and reversed in part.

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


author: CHIEF JUSTICE TURNAGE

text:
    WILLIAM NEWTON ROSE, Plaintiff and Appellant, v. JACK McCORMICK, Warden Montana State Prison, Defendant and Respondent.
    No. 92-021.
    Submitted on Briefs Apr. 15, 1992.
    Decided May 12, 1992.
    49 St.Rep. 427.
    253 Mont. 347.
    834 P.2d 1377.
    For Appellant: William Newton Rose, Pro Se, Deer Lodge.
    For Respondent: James B. Obie and David L. Ohler, Department of Corrections and Human Services, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

William Newton Rose (Rose) appeals a September 13,1991 opinion and order of the Third Judicial District, Powell County, which dismissed his petition for declaratory judgment requesting that he be designated a nondangerous offender for parole eligibility purposes. We affirm.

We rephrase the issues presented on appeal as follows:

Did the District Court err when it determined that Rose could not be designated as nondangerous and therefore must serve one-half of his sentence before becoming eligible for parole under § 95-2206.16, R.C.M. (1947)?

Rose was convicted by a jury of burglary in 1978. At the time he committed this offense, he was on parole. The District Court sentenced Rose to twenty-five years imprisonment and held that he was ineligible for parole “because of his (Defendant’s) past criminal record and his conduct while released on parole or furlough,” under § 95-2206(3)(b), R.C.M. (1947).

In 1984, the Sentence Review Board amended Rose’s sentence to ten years for burglary and fifteen years for being a persistent felony offender, these sentences to run consecutively, and removed his designation of being ineligible for parole.

Both the original sentence and amended sentence were silent as to whether Rose was to be designated as a nondangerous offender. Because neither sentence designated him as nondangerous, Montana Prison Warden Jack McCormick (McCormick) determined that he must serve one-half of his sentence before becoming eligible for parole under § 95-2206.16, R.C.M. (1947).

In February 1991, Rose petitioned the District Court for declaratory judgment alleging that McCormick improperly designated him as a dangerous offender because he had never been charged nor sentenced as a dangerous offender. In an opinion and order dated September 13, 1991, the District Court dismissed Rose’s petition holding that because Rose was convicted of two felony offenses in a five-year period, he could not be designated as nondangerous and therefore must serve one-half of his sentence before becoming eligible for parole under § 95-2206.16(l)(a), R.C.M. (1947).

Thereafter, Rose filed an objection to the District Court’s opinion and order. The District Court did not rule on Rose’s objection. Rose then filed this appeal.

Did the District Court err when it determined that Rose could not be designated as nondangerous and therefore must serve one-half of his sentence before becoming eligible for parole under § 95-2206.16, R.C.M. (1947)?

In 1978, an offender was required to serve one-half of his or her sentence less good time allowance before becoming eligible for parole. A nondangerous offender designation required an offender to serve one-fourth of his or her sentence less good time allowance before becoming eligible for parole. See § 95-3214(1), R.C.M. (1947).

In 1978, § 95-2206.16, R.C.M. (1947), provided in pertinent part: (1) The sentencing court shall designate an offender a nondangerous offender for purposes of ehgibility for parole under 95-3214 if:
(a) during the 5 years preceding 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."

In 1979, an Attorney General Opinion interpreting § 95-2206.16, R.C.M. (1947), then recodified as § 46-23-201(1), MCA, determined that unless an offender is expressly designated as nondangerous, that offender must serve one-half of his or her sentence before parole eligibility. 38 Op. Att’y Gen. 33 (1979).

Rose argues that the District Court erred when it failed to designate him as a nondangerous offender because he was never charged nor sentenced as a dangerous offender. He argues that even though § 95-2206.16, R.C.M. (1947) and the 1979 Attorney General Opinion required the court to expressly designate him a nondangerous offender, subsequent amendments to this statute mandate that he now be designated as nondangerous.

We hold that § 95-2206.16, R.C.M. (1947), the statute in effect at the time of Rose’s sentencing in 1978, is the statute applicable to these facts. See State v. Gone (1978), 179 Mont. 271, 280, 587 P.2d 1291, 1297. Under this statute, William Newton Rose must serve one-half of his sentence before he is eligible for parole because he was not expressly designated a nondangerous offender. The District Court’s opinion and order dated September 13, 1991, is affirmed.

JUSTICES HARRISON, McDONOUGH, GRAY and WEBER concur.


author: JUSTICE WEBER

text:
    MARIE DOTING, Plaintiff and Cross-Appellant, v. FRANK J. TRUNK, JR., and PATRICIA A. TRUNK, Defendants, Respondents and Appellants. FIRST CITIZENS BANK OF BOZEMAN, Plaintiff and Respondent, v. MARIE DOTING, FRANK J. TRUNK, JR., PATRICIA A. TRUNK, Defendants, Appellants and Cross-Appellants.
    No. 91-317.
    Submitted on briefs Apr. 15, 1992.
    Decided May 21, 1992.
    Rehearing Denied July 2, 1992.
    49 St.Rep. 429.
    253 Mont. 350.
    833 P.2d 1028.

      For Appellant: John C. Brown, Cok & Wheat, Bozeman.
    For Respondent: J. David Penwell, Bozeman, and Gregory O. Morgan, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

This case concerns the dissolution of the Frank J. Trunk & Son Partnership. Plaintiff, Marie Doting (Ms. Doting), initiated the underlying action by filing her complaint and petition to dissolve the partnership. Defendants (Trunks) moved to dismiss the complaint on the grounds that Ms. Doting’s request for judicial dissolution of the partnership agreement violated the parties’ partnership agreement. The Trunks further filed a motion for a protective order to stay their responses to Ms. Doting’s discovery requests until the motion to dismiss had been decided. The District Court for the Eighteenth Judicial District, Gallatin County, denied the Trunks’ motion to dismiss and motion for protective order. After a non-jury trial, the District Court ordered the dissolution of the partnership. Trunks appeal and Ms. Doting cross-appeals. We affirm.

We restate the issues as follows:

1. Did the District Court properly order the dissolution of the partnership prior to the winding up of certain contract receivables and the liquidation of certain assets and liabilities?

2. Did the District Court properly conclude that Ms. Doting was not hable for damages or attorney fees incurred by the Trunks as a result of the dissolution of the partnership?

3. Did the District Court properly find the Trunks liable for certain partnership expenses?

4. Did the District Court properly conclude that the Trunks should pay one-half of Mr. Frost’s attorney fees related to his representation of the partnership in the Rae Subdivision litigation?

5. Did the District Court err in ruling that Ms. Doting was not entitled to punitive damages?

On May 15, 1975, Frank and Patricia Trunk, Marie Doting and Maurice Klabunde (Ms. Doting’s ex-husband), executed a partnership agreement which created the Frank J. Trunk & Son Partnership. Frank and Patricia Trunk each owned a 25% interest in the partnership. Ms. Doting and her husband at the time, Mr. Klabunde, owned the other 50% interest. Ms. Doting and Mr. Klabunde subsequently divorced, at which time Mr. Klabunde’s interest was assigned to Ms. Doting by Mr. Klabunde pursuant to their decree of dissolution of marriage.

The partnership operated King Arthur’s Mobile Home Park. Pursuant to the partnership agreement, Frank Trunk was named general manager for the purposes of operating the King Arthur’s Mobile Home Park. The District Court found that from May of 1975, through June 21,1982, the date of the Klabunde’s divorce, Mr. Klabunde spoke for the Klabunde interest in the partnership. The court further found that Ms. Doting’s conduct was “totally passive with the exception of signing essential partnership documents.” The court found the Trunks were the active managers of the partnership through 1987 and that Ms. Doting was aware of and-consented to such management. The District Court found that the business being conducted by the partnership at the date of and after its formation included the development and operation of King Arthur’s Mobile Home Park and the platting and subdevelopment of Rae Subdivision, which ultimately resulted in the creation of 50 lots for single and multi-family residential units.

In September of 1981, the partnership sold its chief asset, the King Arthur’s Mobile Home Park, to Mr. Clark Bronson (the Bronson contract), with the final payment due in August, 2001. The mobile home park was resold in 1984 to Gary and Loretta Oakland (the Oakland contract). After the sale of the mobile home park, the partnership’s primary function was to collect and distribute the proceeds from the sale of the partnership properties. Some of the partnership lots were sold to the Kapinos (the Kapinos contract) with the final payment due in November, 1993. The escrow agent for the Kapinos contract is the First Citizen’s Bank of Bozeman, Montana.

Shortly after the Klabundes divorced in June of 1982, the partners had a formal meeting to discuss the wind up and liquidation of the partnership business. The corut found that it was the intention of the partners at that time to continue the partnership while it liquidated its assets.

On June 16, 1988, Ms. Doting filed a complaint and petition to dissolve the partnership. Ms. Doting alleged that after her divorce, the Trunks failed to respond to her requests to keep her advised of the status of the partnership and the maimer in which the partnership conducted its affairs. She alleged that her efforts to remain informed of the partnership’s business became further frustrated by the fact that the Trunks moved out of Montana and conducted all the partnership business from outside the state. Ms. Doting made several specific allegations regarding the Trunks’ violation of the Uniform Partnership Act and the partnership agreement, including: (1) breach of the partnership agreement by paying a salary to Mrs. Trunk; (2) Mr. Trunk’s amendment of an escrow instruction without resolution and authorization of the partnership and without Ms. Doting’s knowledge; (3) refusal to provide Ms. Doting with information concerning the partnership business; (4) refusal to distribute Ms. Doting’s share of the partnership funds from the partnership bank account when Ms. Doting demanded such; (5) willful and persistent breach of the partnership agreement and attempt to exclude Ms. Doting from her rights of management; and, (6) that the sale of the King Arthur’s Mobile Home Park eliminated the basic purpose for existence and operation of the partnership; and the irreconcilable difference between the partners concerning the partnership made a dissolution of the partnership necessary and equitable. She further alleged that the Trunks violated the implied covenant of good faith and fair dealing and as a consequence she was entitled to recover exemplary and punitive damages.

The Trunks moved to dismiss the complaint on the grounds that Mr. Doting’s request for judicial dissolution of the partnership violated the partnership agreement. The District Court denied the motion. Subsequently, the Trunks filed their answer to the complaint, again requesting that the District Court deny the request for judicial dissolution because it would violate the partnership agreement.

After a three-day trial, the District Court issued its findings of fact and conclusions of law, and ordered Ms. Doting to prepare an appropriate judgment reflecting the findings and conclusions. On January 17, 1991, the District Court signed the judgment dissolving the partnership.

The Trunks subsequently moved to amend the judgment and the findings of fact. While this motion was pending, the District Court consolidated this case with the interpleader action entitled First Citizens Bank of Bozeman v. Marie Doting, Frank J. Trunk, Jr., and Patricia A. Trunk. The issues raised in the interpleader action are not relevant to this case.

On February 27, 1991, a hearing was held on the Trunks’ motion to amend findings of fact and motion to amend the judgment. The District Court issued its order amending the findings of fact and judgment on March 8, 1991. The March 8th order was amended on April 5, 1991, to address accumulated funds held in escrow. The Trunks appeal and Ms. Doting cross-appeals.

I

Did the District Court properly order the dissolution of the partnership prior to the winding up of certain contract receivables and the liquidation of certain assets and liabilities?

The District Court referred to this case as “The War of Roses”, noting that there was such animosity and antagonism between the parties, that dissolution of the partnership was in everyone’s best interest. The court stated:

The conflict manifests itself in the antagonism between the parties, between the attorneys, between the plaintiff and the attorney for the defendants. This in itself reinforces the Court’s resolve that the partnership should be dissolved with the words of this Court echoed by the Montana Supreme Court in Heitz vs [sic] Heitz, 47 St.Rep. 1393 (1990): We agree and repeat the statements of the District Court that this type of case should be settled between the two parties and that neither party may be satisfied with what the Courts say.

The District Court agreed with the Trunks that the bookkeeping should be done by a qualified third party and appointed Mr. Bailey of the accounting firm of Bailey and Brinkman as the agent to wind up the affairs of the partnership. Mr. Bailey was appointed with the consent of the parties. The court ordered Mr. Bailey to wind up the partnership affairs within 60 days of the date of the court’s order.

The District Court concluded that the legal sale of the principal asset of the partnership, King Arthur’s Mobile Home Park, was accomplished prior to the institution of this action, and the sale contract, and the Kapinos contract, were easily divisible. The court concluded that the remaining assets of the partnership were also easily divisible. The court ordered that the assets of the partnership be distributed 50% percent to Ms. Doting and 50% to the Trunks. It ordered cash in the partnership checking and savings account be immediately distributed equally to the parties. It further ordered that the Bronson contract and Kapinos contract be distributed equally.

With regard to the Bronson and Kapinos contracts, the court ordered:

The payments on the Kapinos contract to the escrow agent shall be deposited in the new account to be established for the winding up of the Partnership affairs with the accounting firm of Bailey and Brinkman, Bozeman, Montana, as provided below.
The payments on the Bronson contract, to the escrow agent the First Citizens Bank, will henceforth be divided by the escrow agent when they are received; one-half (V2) to [Ms. Doting] and one-half (V2) to the [Trunks] to be disbursed to the parties by the said Bank as the parties shall instruct the Bank.
In addition, counsel for [Ms. Doting] shall prepare an assignment from the partnership to the parties of the partnership’s interest in the Bronson contract and the Kapinos contract conveying an undivided tenancy in common fifty percent (50%) interest in and to said contracts to each of the parties respectively ....
5) The partnership checking and savings account shall be closed and a new account opened by the accounting firm of Bailey and Brinkman, who functioned as the accountants for the partnership previously, ... The Kapinos payment shall be distributed by the escrow agent for said contract, the Montana Bank of Bozeman, to said accountants to be deposited in the new partnership account. Said funds shall be used by the accountants to pay partnership bills and to wind up the affairs of the partnership with any surplus to be distributed one half (Vs) to [Ms. Doting] and one half (V2) to the [Trunks] .... The subsequent Kapinos payments shall be used to cover the partnership debts until the winding up of the partnership affairs is completed.

The Trunks maintain that the partnership must be allowed to continue in existence for the limited purpose of administering and enforcing the Bronson and Kapinos contract receivables. They further maintain that the District Court’s order is unclear as to whether Mr. Bailey is to continue to administer the Kapinos and Bronson contract receivables after the end of the 60-day wind up period. They contend that Mr. Bailey should continue to administer the two contract receivables because the ramifications of the alternative, that the two contract receivables be distributed to the parties as tenants in common prior to their payoffs, would seriously jeopardize the value of the two receivables. Hence, the Trunks maintain that the wind up of the partnership’s affairs should be continued until such time as the Bronson and Kapinos contracts are paid in full.

Ms. Doting contends that there is no reason for the partnership to remain in existence because almost all of the lots have been sold by mutual consent of the parties and the Rae Subdivision suit involving the partnership has been finally adjudicated. See Rae Subdivision County Water & Sewer Dist. No. 313 v. Frank J. Trunk & Son (Mont. 1991), [251 Mont. 22,] 823 P.2d 845, 48 St.Rep. 1065. She maintains that the grounds or reasons for the original creation of the partnership no longer exist following the sale of the principal asset, the King Arthur’s Mobile Home Park. She further points out that the Trunks moved to the State of Washington shortly after selling the mobile home park and the partnership has not been engaged in any business other than collecting receivables since that time.

As Ms. Doting points out, the partnership agreement does not provide for termination or dissolution, but rather only provides for a buy-out agreement between partners. However, the Uniform Partnership Act (UPA) specifically provides for the procedure for dissolution of a partnership. In fact, the UPA explains the relationship of winding up, dissolution, and termination of a partnership.

Section 35-10-604(l)(f), MCA, provides that a court may order dissolution if circumstances render a dissolution equitable. Such is the case here. The District Court stated that

since the partners are unable to agree as to the continued management of the partnership affairs and the partnership agreement does not provide an acceptable means to settle the problems, and the fact that the main assets of the partnership have been sold, the Court finds, as a matter of law, that the partnership should be dissolved...

Section 35-10-601, MCA, provides:

The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.

The Commission Comments to the Montana Code Annotated offer the following explanation for the term “dissolution”.

As used by the legal profession the term “dissolution” designates, not only the single act of the termination of the actual conduct of the ordinary business, but also often the series of acts thereafter until the final settlement of all partnership affairs. It is also frequently said that dissolution, although the word is used to designate only the termination of ordinary business relations, terminates the partnership, it being at the same time explained that the partnership thereafter continues to exist for the purpose of suing and being sued in the process of winding up partnership affairs. Certainty demands that the confusion should be removed if possible. In this act dissolution designates the point in time when the partners cease to carry on the business together; termination is the point in time when all the partnership affairs are wound up; winding up, the process of settling partnership affairs after dissolution. (Emphasis added).

Section 35-10-602, MCA, provides:

On dissolution the partnership is not terminated hut continues until the winding up of partnership affairs is completed. (Emphasis added).

We conclude that the Trunks’ argument that the partnership should remain in existence until the winding up is completed is moot. As explained by the UPA, dissolution does not terminate the partnership for purposes of winding up and suing and being sued while winding up. While the District Court ordered Mr. Bailey to wind up the partnership affairs within 60 days, it is obvious that the Kapinos and Bronson contract receivables will not be paid in full by that time. However, the court further ordered that the subsequent Kapinos payments shall be used to cover the partnership debts until the winding up of the partnership affairs is completed. Under the UPA, the partnership will continue in existence solely for the purpose of winding up until all receivables have been received and payables have been paid.

The Trunks argue that Mr. Bailey should be ordered to continue the administration of the partnership affairs until everything is paid off. We disagree. The partnership will by law remain in existence for purposes of winding up. If the partners have any legal problems with the winding up, they have adequate legal remedies under the UPA. As the court ordered, the payments on receivables collected after Mr. Bailey’s 60 days are up will be used to pay any remaining partnership debts and otherwise divided between the parties 50-50.

We agree with the District Court that it is unfortunate that there is such extreme animosity between these parties, and we further agree that due to such animosity, this type of case should be settled between the two parties and not by the courts. We hold that the District Court properly ordered the dissolution of the partnership prior to the winding up of certain contract receivables and the liquidation of certain assets and liabilities.

II

Did the District Court properly conclude that Ms. Doting was not liable for damages or attorney fees incurred by the Trunks as a result of the dissolution of the partnership?

The Trunks maintain that Ms. Doting should be liable for damages and attorney fees incurred by them “as a result of [Ms. Doting’s] dissolution of the partnership in contravention of the partnership agreement”.

As noted in Issue I, the reason for the partnership’s existence ceased to exist when the King Arthur’s Mobile Home Park was sold and the Trunks moved out of state. Furthermore, as held in Issue I, the partnership agreement did not provide for dissolution, only buy-out.

We conclude that the Trunks’ argument on this issue is without merit and affirm the District Court’s decision on this issue.

III

Did the District Court properly find the Trunks liable for certain partnership expenses?

The District Court made the following finding of fact:

28. The Court finds that the Trunks’ expenses in connection with partnership business for travel, lodging, phone, meals, the plumbing license, the newspaper subscription and other related expenses were necessary and reasonable in furtherance of the partnership business. However, one half of all expenses related to this action that may be included in [Ms. Doting’s] proposed finding No. 40 should be remitted to [Ms. Doting].

The District Court ordered Ms. Doting to prepare an appropriate judgment reflecting the Findings of Fact and Conclusions of Law. Ms. Doting complied and the court signed the judgment. Paragraph 11 of the judgment prepared by Ms. Doting and signed by the court provided that Ms. Doting was entitled to

The further and additional sum of $3,295.65 representing one-half (V2) of the expenses paid by the Trunks out of partnership assets related to this action. (Emphasis added).

The Trunks maintain that the sum of $3,295.65 actually represents one-half of the legitimate expenses of the partnership paid by the Trunks, justified by them at trial and approved by the District Court in the above-quoted Finding of Fact No. 28. Therefore, the Trunks ask this Court to delete this item of damages from the judgment and order Ms. Doting to reimburse this amount to them.

Ms. Doting maintains that her proposed findings of the expenses incurred were the amount of $6,591.30, and that one half of that amount is $3,296.65 — the exact amount found by the court in its judgment. The court had ordered that one half of all expenses related to this action should be remitted to her. Ms. Doting contends that if she does not receive the $3,296.65, she would end up paying a portion of the Trunks’ defense costs.

We affirm the determination of the District Court that the Trunks properly should pay for their own defense in this case. We affirm the holding of the District Court that the Trunks are therefore hable to Ms. Doting for $3,296.65 in payment of certain partnership expenses.

IV

Did the District Court properly conclude that the Trunks should pay one-half of Mr. Frost’s attorney fees related to his representation of the partnership in the Rae Subdivision litigation?

The partnership’s attorney, Mr. Frost, represented the partnership in the Rae Subdivision litigation until Ms. Doting hired her own attorney, Mr. Penwell. Mr. Penwell then filed an answer in the Rae Subdivision case in Ms. Doting’s behalf. Mr. Frost continued on as counsel for the Trunks in the Rae Subdivision case.

The District Court ordered that the Trunks pay Ms. Doting one half of the sums paid by the partnership to Mr. Frost for representation of the partnership in the Rae Subdivision suit after Mr. Penwell filed an answer for Ms. Doting in that suit. That amount was found to be $1,309.83.

The Trunks contend that the District Court erred in ordering them to pay that sum because it represents one-half of the sums paid by the partnership to Mr. Frost for his representation of the partnership in the Rae Subdivision litigation before Ms. Doting filed her own answer. They maintain that the partnership should pay all of Mr. Frost’s attorney fees and costs arising from his representation of the partnership in the Rae Subdivision litigation because Mr. Doting’s attorney merely adopted and ratified Mr. Frost’s work in the case.

As we stated in the previous issue, the Trunks cannot expect Ms. Doting to bear the burden of paying for the expenses of both parties. Although on appeal the Trunks contend that Ms. Doting had no authority to fire the partnership attorney and hire her own attorney to defend her in the Rae Subdivision case, they do not argue, nor have they provided evidence for purposes of this case before us, that they previously objected to her separate representation in the Rae Subdivision case or previously argued that she lacked authority to hire separate counsel. They cannot raise an issue of lack of authority for the first time on appeal.

We hold that the District Court properly concluded that the Trunks should pay one-half of Mr. Frost’s attorney fees related to his representation of the partnership in the Rae Subdivision litigation.

V

Did the District Court err in ruling that Ms. Doting was not entitled to punitive damages?

Ms. Doting has now conceded that her cross-appeal on this issue was not filed on time. We will not address the punitive damages issue.

Affirmed.

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