author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    LLOYD BACHE and VIRGINIA BACHE, Plaintiffs and Respondents, v. MARK OWENS, d/b/a MARK OWENS LOGGING, Defendant, Counterclaimant, and Appellant.
    No. 96-413.
    Submitted on Briefs November 7, 1996.
    Rehearing Denied January 9, 1997.
    Decided December 10, 1996.
    53 St.Rep. 1320.
    280 Mont. 106.
    929 P.2d 217.

      See C.J.S. Quieting Title § 14.
    JUSTICE LEAPHART dissenting, joined by JUSTICE GRAY and NELSON.
    For Appellant: I. James Heckathorn, Murphy, Robinson, Heckathorn & Phillips, Kalispell.
    For Respondents: Lon J. Dale, Milodragovich, Steinbrenner & Binney, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The respondents, Lloyd Bache and Virginia Bache, filed an action against the appellant, Mark Owens, d/b/a Mark Owens Logging, in the District Court for the Nineteenth Judicial District in Lincoln Comity to enjoin Owens from encroaching on an easement which they alleged had been established in their favor. Owens filed a counterclaim for specific performance of the buy-sell agreement entered into between the parties and for other relief. The District Court granted summary judgment in favor of the Baches, and denied Owens’motion for summary judgment. Owens appeals the judgment of the District Court. We affirm the District Court.

The dispositive issue on appeal is whether the District Court erred when it denied Owens’ motion for summary judgment, and granted summary judgment in favor of the Baches.

FACTUAL BACKGROUND

The Baches owned approximately 34 acres of property in Lincoln County. In April 1988, they entered into an agreement with Owens for the sale and purchase of 2.42 acres of their property. Pursuant to the Agreement to Sell and Purchase (“the Agreement”), the Baches promised to:

[C]onvey the real property by Warranty Deed, free of all liens and encumbrances except those described in the title insurance section of this agreement.

The title insurance section of the Agreement provided that the Baches would:

[F] urnish Buyer Title Insurance... committing to insure merchantable title to the real property in the Buyer’s name, free and clear of all liens and encumbrances except: encumbrances hereinabove mentioned, zoning ordinances, building and use restrictions, reservations in federal patents, beneficial utility easements apparent or of record, easements of record, and no others.

Subsequently, a Preliminary Title Insurance Policy was issued with regard to the properly, and provided that:

PRIOR TO THE ISSUANCE OF TITLE INSURANCE, a complete legal description must be placed of record in the office of the Lincoln County Clerk and Recorder.

On July 6, 1988, the Baches filed Certificate of Survey Number 1657 (“COS No. 1657”) with the Lincoln County Clerk and Recorder. COS No. 1657 depicts two easements along the westerly border of the property: (1) a thirty-foot-wide private roadway easement, retained by the Baches; and (2) a public utility easement. On that same day, the Baches executed a Warranty Deed in favor of Owens. The deed describes the property, and references COS No. 1657.

On July 8, 1988, the parties finalized their transaction, and executed a Contract for Deed which also makes reference to COS No. 1657.

During 1991 and 1992, Owens constructed a building on the property he purchased from the Baches. He and his building contractor, Mike Heiberg, examined COS No. 1657 prior to establishing the building site. However, they misidentified the easement boundary, and constructed the building only six feet from the property boundary. As a result, the building encroached upon twenty-four feet of the Baches’ easement.

The Baches filed an action in the District Court. They sought the removal of Owens’ building, and contract remedies for the obstruction of their easement. Owens contended that no easement existed, and asserted counterclaims for specific performance, breach of contract, estoppel, fraud and deceit, quiet title, slander of title, and punitive damages.

Owens moved for partial summary judgment. He contended that, as a matter of law, the land sale documents did not create an access easement in favor of the Baches.

The Baches filed their own motion for partial summary judgment. They asked the District Court to conclude, as a matter of law, that the land sale documents created an easement by reservation in their favor.

The District Court granted partial summary judgment in favor of the Baches, and certified its judgment as final pursuant to Rule 54(b), M.R.Civ.R, for purposes of appeal. On appeal, in Bache I, we held that the parties’ land sale documents created a valid easement in favor of the Baches. We then remanded the case to the District Court for its determination of the remaining issues. Bache v. Owens (1994), 267 Mont. 279, 883 P.2d 817.

On remand, the Baches filed a motion for dismissal of Owens’ counterclaims by summary judgment. Owens also moved for summary judgment in his favor. He claimed that the existence of an easement contradicts the express provisions of the Agreement. The District Court denied Owens’ motion for summary judgment, and granted summary judgment in favor of the Baches.

Subsequently, the Baches again moved for summary judgment on the remaining issues. They requested injunctive relief to enjoin Owens from interfering with their easement, and to require him to remove his building. They also requested an award of their attorney fees. The District Court granted the Baches’ motion, and certified its judgment as final.

DISCUSSION

Did the District Court err when it denied Owens’ motion for summary judgment, and granted summary judgment in favor of the Baches?

Summary judgment is governed by Rule 56(c), M.R.Civ.R, which provides, in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The purpose of summary judgment is to encourage judicial economy through the elimination of any unnecessary trial. However, summary judgment is not a substitute for trial if a genuine factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284,288,615 P.2d 896, 898.

It is well established that the moving party must prove that it is entitled to judgment as a matter of law. To do this, it is required to show a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. To defeat the motion, the nonmoving party must set forth facts which demonstrate that a genuine factual issue exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46/785 P.2d 190, 191.

On appeal, Owens maintains that the District Court erred when it denied his counterclaims. On that basis, he contends that summary judgment for the Baches should be reversed, and that summary judgment should, instead, be granted in his favor. We will, therefore, address each of his counterclaims asserted on appeal.

SPECIFIC PERFORMANCE

The Agreement among the parties did not explicitly mention the Baches’ easement. Owens maintains that the Agreement is a binding contract which establishes the terms of the sale, and that the subsequent creation of the Baches’ easement constitutes a modification. This modification, he asserts, is invalid because it was not supported by consideration, and was not a product of the parties’ mutual consent. Therefore, he contends that he is entitled to specific performance of the strict terms of the Agreement.

Relevant to our consideration of Owens’ argument is the law of the case doctrine, which provides:

[1] n deciding a case upon appeal, when the Supreme Court states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent proceedings, both in the trial court and upon subsequent appeal.

Haines Pipeline Construction, Inc. v. Montana Power Co. (1994), 265 Mont. 282, 289, 876 P.2d 632, 637 (citing Zavarelli v. Might (1989), 239 Mont. 120, 124, 779 P.2d 489, 492).

In Bache I, we stated that there were four instruments of conveyance: (1) the Agreement to Sell and Purchase (“the Agreement”); (2) the Warranty Deed; (3) the Contract for Deed; and (4) Certificate of Survey Number 1657 (“COS No. 1657”). We interpreted those four instruments, and held that they established a valid easement in favor of the Baches. Bache I, 267 Mont, at 286, 883 P.2d at 822.

Owens’ counterclaim is, in essence, a collateral attack on our prior holding in Bache I. As a result of that decision, the Baches successfully established the existence of a valid easement in their favor on Owens’ property; they cannot now be compelled, by an order requiring specific performance, to forfeit that interest.

Furthermore, the Baches complied with the terms of the Agreement. Therefore, contrary to Owens’ assertions, there was not a modification of the Agreement, nor was one necessary.

Pursuant to the Agreement, the Baches promised to:

[C]onvey the real property by Warranty Deed, free of all liens and encumbrances except those described in the title insurance section of this agreement.

(Emphasis added.)

The title insurance section of the Agreement provided that the Baches would:

[F]urnish Buyer Title Insurance... committing to insure merchantable title to the real property in the Buyer’s name, free and clear of all liens and encumbrances except: encumbrances hereinabove mentioned, zoning ordinances, building and use restrictions, reservations in federal patents, beneficial utility easements apparent or of record, easements of record, and no others.

(Emphasis added.)

Subsequently, a Preliminary Title Insurance Policy, which was required by the Agreement, was issued with regard to the property. It provided that:

PRIOR TO THE ISSUANCE OF TITLE INSURANCE, a complete legal description must be placed of record in the office of the Lincoln County Clerk and Recorder.

The Baches filed COS No. 1657, which contains their easement, prior to closing, and in accordance with the Preliminary Title Insurance Policy. Both the Warranty Deed and the Contract for Deed reference COS No. 1657. As a result, the easement in favor of the Baches was, in fact, “of record,” and Owens had constructive notice of its existence.

BREACH OF CONTRACT

Owens maintains that the Baches did not comply with the terms of the Agreement, and have, therefore, breached the terms of the parties’ contract. This counterclaim is subsumed by the claim for specific performance, and fails for the same reasons.

ESTOPPEL

Owens asserts that the Baches are estopped from claiming an easement. He contends that the Baches concealed material facts with the knowledge that they would be acted upon, and that, as a result, he changed his position for the worse.

We begin our analysis with the principle that, “[e]quitable estoppel is not favored and will be sustained only upon clear and convincing evidence.” Ducham v. Tuma (1994), 265 Mont. 436, 441, 877 P.2d 1002,1006.

The six required elements of equitable estoppel are as follows:

1) There must be conduct, acts, language or silence by the estopped party amounting to a representation or concealment of facts;
2) these facts must be known to the estopped party at the time of the conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to the estopped party;
3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time they were acted upon\
4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under the circumstances that it is both natural and probable that it will be acted upon;
5) the conduct must be relied upon by the other party; and
6) the other party must in fact act upon it in such a manner as to change the other party’s position for the worse.

Ducham, 265 Mont, at 441-42, 877 P.2d at 1006 (emphasis added).

Owens has failed to present clear and convincing evidence in support of these elements. Although the preliminary title commitment did not reference the Baches’ easement, it did state:

PRIOR TO THE ISSUANCE OF TITLE INSURANCE, a complete legal description must be placed of record in the office of the Lincoln County Clerk and Recorder.

The Baches complied with this provision when, prior to the issuance of title insurance, they filed COS No. 1657 with the Lincoln County Clerk and Recorder. As we have previously held, the Agreement, the Warranty Deed, the Contract for Deed, and COS No. 1657 created a valid easement in favor of the Baches. Based on these documents of conveyance, Owens had constructive notice of the easement, and his estoppel claim necessarily fails as a matter of law.

FRAUD & DECEIT

Owens’ claim for fraud and deceit is based upon the alleged failure of the Baches to disclose the existence of their easement. This claim is similar to the estoppel claim, and fails, as a matter of law, for the same reason.

The Warranty Deed and the Contract for Deed both reference COS No. 1657, and at the time of closing, the Baches’ easement was “of record.” As a result, Owens had constructive notice of the easement by operation of law. The Baches had no affirmative duty to disclose that which was, by virtue of the conveyancing documents, of public record. Owens cannot now assert that the existence of the easement was a fact which was fraudulently and deceitfully suppressed by the Baches.

QUIET TITLE

Finally, Owens claims that he is entitled to quiet his title. This claim was resolved by our decision in Bache I. In that case, we held that the Baches have a legitimate right, title, and interest in their easement on Owens’ property. They do not claim an easement. They have a valid easement. Their easement, therefore, is not a cloud on Owens’ title, and his claim fails as a matter of law.

We conclude that there are no genuine issues of material fact, and that the Baches are entitled to judgment as a matter of law. Accordingly, we hold that the District Court did not err when it denied Owens’ motion for summary judgment, and granted summary judgment in favor of the Baches.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and ERDMANN concur.

JUSTICE LEAPHART,

dissenting.

I dissent with regard to the breach of contract claim. The Court treats Owens’ claims as collateral attacks upon our holding in Bache I in which we held that the Buy/Sell Agreement, Contract for Deed and Certificate of Survey, created a valid easement in favor of Bache. The fact that these instruments created a valid easement as of the time of closing, however, does not preclude a claim that such an easement was not contemplated by the original Buy/Sell Agreement which provided that Baches would convey the property “free of all liens and encumbrances except those described in the title insurance section of this agreement.” The title insurance section of the Agreement provided that Baches would convey title free and clear of all liens and encumbrances except easements of record. When the Agreement speaks of easements “of record,” there is an ambiguity as to time; that is, “of record” as of when. Despite the fact that Baches’ easement was “of record” as of the date of the closing, there is a genuine issue of material fact as to whether, in signing the Agreement, the parties only contemplated easements of record as of the April 1988 date of the Agreement as opposed to an easement which was recorded on July 6th, two days before the closing. When there is an ambiguity in the contract, the intent becomes a question for the jury. Klawitter v. Dettman (1994), 268 Mont. 275, 281, 886 P.2d 416, 420; see also Johnson v. Nyhart (1995), 269 Mont. 379, 387, 889 P.2d 1170, 1174. I would reverse the summary judgment as to breach of contract and remand for trial on that issue.

JUSTICES GRAY and NELSON join in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    COLLEEN CONNERY, Petitioner and Respondent, v. LIBERTY NORTHWEST INSURANCE CORPORATION, Respondent, Appellant, and Insurer for WINTER SPORTS, INC., Employer.
    No. 96-448.
    Submitted on Briefs November 14, 1996.
    Decided December 10, 1996.
    53 St.Rep. 1324.
    280 Mont. 115.
    929 P.2d 222.
    See C.J.S. Workmen’s Compensation § 221.

      For Appellant: Larry W. Jones, Senior Attorney; Liberty Northwest Insurance Corp.; Missoula.
    For Respondent: David W. Lauridsen and Laurie Wallace; Bothe & Lauridsen, Columbia Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The respondent, Colleen Connery, petitioned the Workers’ Compensation Court for the State of Montana to find that she was injured during the course of her employment with Winter Sports, Inc. After a trial, the Workers’ Compensation Court entered judgment for Connery and against the appellant, Liberty Northwest Insurance Corp., which insured her employer. Liberty appeals the Workers’ Compensation Court’s decision. We affirm the judgment of the Workers’ Compensation Court.

The issues on appeal are:

1. Did the Workers’ Compensation Court err when it interpreted § 39-71-118(2)(a), MCA?
2. Was there substantial evidence to support the Workers’ Compensation Court’s finding that Connery was an employee injured in the course and scope of her employment?

FACTUAL BACKGROUND

Connery was employed as a certified ski instructor by Winter Sports, Inc., at Big Mountain ski area near Whitefish.

On December 10, 1995, Connery signed in at work at 8:45 a.m., and attended a ski instructor lineup at 9:15 a.m. At approximately 9:45 a.m., she was assigned to a private lesson scheduled to commence at 11:00 a.m. She was told that the lesson would take place on a hill which is served by the Platter Lift.

Shortly thereafter, Connery and Mark Roy, another ski instructor, took the main lift to the top of Big Mountain. They skied down the backside, and took another lift back to the top. They then skied down the front of the mountain.

When Connery was approximately 200 yards above the base of the Platter Lift, she stopped to wait for Roy. As Roy approached, he was unable to stop and collided with Connery. As a result of the collision, she suffered a severe fracture of her left leg. The collision occurred at approximately 10:35 a.m.-twenty-five minutes before the private lesson was scheduled to commence.

Connery filed a workers’ compensation claim in which she sought lost wages and medical benefits. Liberty acknowledged the claim, but denied it based on § 39-71-118, MCA, which provides, in relevant part:

(1) The term “employee” or “worker” means:
(2) The terms defined in subsection (1) do not include a person who is:
(a) participating in recreational activity and who at the time is relieved of and is not performing prescribed duties, regardless of whether the person is using, by discount or otherwise, a pass, ticket, permit, device, or other emolument of employment....

Connery subsequently filed a petition for hearing in the Workers’ Compensation Court. Atrial was held in Kalispell on June 5, 1996.

At the trial, Liberty contended that when the accident occurred Connery was engaged in a recreational activity, and that she was relieved of and not performing prescribed duties related to her employment. On that basis, it asserted that the recreational activity exclusion in § 39-71-118(2)(a), MCA, is applicable, and that, pursuant to the statutory exclusion, Connery’s claim should be denied.

Connery, however, claimed that on the morning of December 10, 1995, she was engaged in a “warm-up run.” A “warm-up run” allows ski instructors to become familiar with the weather and ski conditions, and to condition and physically prepare themselves before they give ski lessons. It is undisputed that Winter Sports, Inc., encourages its ski instructors to take “warm-up runs” before they give ski lessons.

Connery claimed that her “warm-up run” was, in fact, a prescribed duty of her employment. On that basis, she contended that the exclusion in § 39-71-118(2)(a), MCA, is not applicable, and that her injury is work-related and compensable.

At the conclusion of the trial, the Workers’ Compensation Court determined that: (1) at the time Connery was injured, she was engaged in a “warm-up run”; (2) the recreational activity exclusion in § 39-71-118(2)(a), MCA, is not applicable to the facts of Connery’s claim; (3) Connery suffered a compensable industrial accident during the course and scope of her employment; and therefore (4) she is entitled to wage loss and medical benefits pursuant to the Workers’ Compensation Act. Accordingly, the court entered judgment in favor of Connery.

ISSUE 1

Did the Workers’ Compensation Court err when it interpreted § 39-71-118(2)(a), MCA?

When we review the Workers’ Compensation Court’s conclusions of law, the standard of review is whether those conclusions are correct. Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 410, 892 P.2d 563, 567.

The relevant portion of § 39-71-118, MCA, provides:

(1) The term “employee” or “worker” means:
(2) The terms defined in subsection (1) do not include a person who is:
(a) participating in recreational activity and who at the time is relieved of and is not performing prescribed duties, regardless of whether the person is using, by discount or otherwise, a pass, ticket, permit, device, or other emolument of employment....

When it interpreted the statute, the Workers’ Compensation Court made the following conclusion:

Section 39-71-118(2)(a), MCA, plainly requires atwo-part analysis, first focusing on whether activity leading to the accident was a recreational one. If it was, then a second criteria must be met, that being to wit: at the time of the activity the injured individual must have been relieved of and not performing duties of [her] employment.

The court held that the first prong of § 39-71-118(2)(a), MCA, was satisfied, because Connery conceded that she was involved in a recreational activity at the time of her accident.

When it analyzed the second prong, the court applied a traditional course and scope of employment analysis to determine “whether a worker involved in a recreational activity was nonetheless performing prescribed duties of employment at the time of an accident.” Ultimately, the court determined that the second prong was not satisfied. Therefore, it held that the statutory exclusion is not applicable to the facts of Connery’s claim.

On appeal, Liberty contends that the Workers’ Compensation Court erred when it interpreted § 39-71-118(2)(a), MCA, and applied a traditional course and scope of employment analysis.

In support of its claim, Liberty asserts the following argument: (1) the plain and unambiguous meaning of § 39-71-118(2)(a), MCA, is that a person engaged in recreational activity, and not performing what she has been hired and paid to do (her “prescribed duties”) is excluded from the statutory definition of an “employee”; (2) because the statute is plain and unambiguous on its face, it must be directly applied as written, and no farther analysis is required or permitted; and therefore (3) the Workers’ Compensation Court erred when it failed to apply the plain meaning of the statute and, instead, applied a traditional course and scope of employment analysis.

Liberty correctly recognizes that when a statute is plain and unambiguous on its face, it must be applied as written, and “the courts may not go further and apply any other means of interpretation.” Murer v. State Compensation Mutual Insurance Fund (1994), 267 Mont. 516, 520, 885 P.2d 428, 430.

Liberty then, however: (1) asserts its own interpretation of the statute; (2) claims that its interpretation constitutes the plain and unambiguous meaning of the statute; and (3) maintains that, pursuant to well-established principles of statutory construction, the court is obligated to apply that (alleged) plain and unambiguous meaning.

We reject Liberty’s interpretation of the statute. Instead, we hold that the “prescribed duties” prong of § 39-71-118(2)(a), MCA, can only be reasonably applied based on a traditional course and scope of employment analysis.

The purpose of § 39-71-118(2)(a), MCA, as revealed by its legislative history, is clear. Many employers, such as Winter Sports, Inc., offer seasonal passes to their employees as a form of compensation. Those seasonal passes are used by the employees for work-related and personal recreational activities. Section 39-71-118(2)(a), MCA, shields employers from workers’ compensation liability when an employee is injured while he or she is off-duty and engaged in purely personal recreational activity.

Despite the statute’s clear purpose, the term “prescribed duties” is, itself, not defined, and cannot be arbitrarily limited by a definition such as the one Liberty proposes. Any attempt at a uniform definition of an employee’s “prescribed duties” will, inevitably, fail to account for all of the potential fact patterns that could arise. The definition of an employee’s “prescribed duties” is fact-intensive, and will vary considerably from case to case. Therefore, the application of a traditional course and scope of employment analysis is, and will be, necessary to determine exactly what an employee’s “prescribed duties” are in a particular case.

Accordingly, we hold that the Workers’ Compensation Court’s conclusions of law are correct, and that it did not err when it held that § 39-71-118.(2)(a), MCA, requires a traditional course and scope of employment analysis.

ISSUE 2

Was there substantial evidence to support the Workers’ Compensation Court’s finding that Connery was an employee injured in the course and scope of her employment?

The Workers’ Compensation Court’s findings of fact will be upheld if they are supported by substantial credible evidence. Wunderlich, 270 Mont, at 408, 892 P.2d at 566.

The Workers’ Compensation Court found that, at the time of the accident, Connery was engaged in a “warm-up run.” Although she was, indisputably, involved in a recreational activity, the court also found that her “warm-up run” was a prescribed duty of her employment. On that basis, the court determined that the exclusion in § 39-71-118(2)(a), MCA, is not applicable, that the injury occurred during the course and scope of her employment, and that, therefore, the injury is a compensable industrial accident.

On appeal, Liberty contends that the Workers’ Compensation Court’s findings are not supported by substantial credible evidence. Specifically, it asserts that the court erred when it found that Connery’s “warm-up run” was a prescribed duty of her employment; rather, it maintains that she was recreationally skiing on her own free time and not performing a prescribed duty of employment. Therefore, it claims that the exclusion in § 39-71-118(2)(a), MCA, applies, and that her claim must be denied.

At the outset, we recognize that giving ski lessons was not Connery’s only employment duty. Both she and Mark Roy testified that she was also expected or required to provide noon hour child care; report to work between 8:00 and 9:00 a.m.; sign up for work upon arrival, and sign-out upon departure; attend an employee lineup at 9:15 a.m.; attend ski clinics each month; arrive at the lesson site fifteen minutes early; and frequently check the office and message boards to determine if any “walk-in” lessons had been scheduled. Additionally, her employee manual recommended that all ski instructors take “warm-up runs” before they give a lesson.

Most significant, however, is the application of the facts of Connery’s claim to the legal principles of a traditional course and scope of employment analysis. In Montana, the test to determine whether an employee was injured in the course and scope of her employment is as follows:

Controlling factors repeatedly relied upon to determine a work-related injury include: (1) whether the activity was undertaken at the employer’s request; (2) whether employer, either directly or indirectly, compelled employee’s attendance at the activity; (3) whether the employer controlled or participated in the activity; and (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor, may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances.

Courser v. Darby School Dist. No. 1 (1984), 214 Mont. 13, 16-17, 692 P.2d 417, 419.

The Workers’ Compensation Court concluded that, pursuant to the facts of this case and the application of those facts to the four-factor test in Courser, Connery’s “warm-up run” was within the course and scope of her employment, and that, therefore, it was a prescribed duty of her employment. In support of this conclusion, the court stated:

A warm-up run was recommended by her employer, thus the first Courser factor is met. It is also reasonable to assume that both the employer and [Connery] benefitted from a warm-up run in that [Connery] unlimbered her muscles and joints and generally familiarized herself with snow conditions. The fact that the employer recommended a warm-up run indicated its belief that such runs directly or indirectly contributed to ski lessons. Thus, the fourth Courser factor is met. By requiring instructors to sign-in and attend lineup, and assigning lessons at odd times, such as occurred in this case, the employer also indirectly contributed to claimant’s warm-up run on December 10. There was insufficient time for her to leave the ski area or engage in other substantial activities, whereas she was dressed and ready for skiing and had sufficient time to make a warm-up run. Thus, the second [Courser] factor appears to be met, although weakly. The third [Courser] factor ... is not met. Nonetheless, on balance [Connery’s] warm-up run was within the course and scope of [Connery’s] employment and part of her duties.

Additionally, the court found that Connery’s “warm-up run” “terminated in the immediate vicinity of her lesson and terminated shortly before the lesson was to begin.”

Based on our review of the record, we conclude that the Workers’ Compensation Court’s findings of fact are supported by substantial credible evidence. Those findings are consistent with the testimony of both Connery and her co-worker, Mark Roy. Accordingly, we hold that the Workers’ Compensation Court did not err when it determined that, based on the facts in this case, Connery was injured in the course and scope of her employment.

The judgment of the Workers’ Compensation Court is affirmed.

JUSTICES GRAY, NELSON, HUNT and LEAPHART concur.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    M.H. Jr., individually and by his parents, and next friends, M.H. and T.H., Plaintiffs and Respondents, v. MONTANA HIGH SCHOOL ASSOCIATION and the BOARD OF CONTROL of the Montana High School Association, and BUTTE HIGH SCHOOL, Defendants and Appellants.
    No. 96-024.
    Submitted on Briefs August 8, 1996.
    Decided December 11, 1996.
    53 St.Rep. 1328.
    280 Mont. 123.
    929 P.2d 239.

      See C.J.S. Schools § 445.

      JUSTICE TRIEWEILER dissenting, joined by CHIEF JUSTICE TURNAGE and JUSTICE HUNT.
    For Appellants: Jock O. Anderson, David C. Dalthorp; Gough, Shanahan, Johnson & Waterman, Helena.
    For Respondents: David J. Wing; Hennessey, Joyce and Wing, Butte.
   JUSTICE GRAY

delivered the Opinion of the Court.

The Montana High School Association (MHSA) appeals from the Findings of Fact, Conclusions of Law and Order of the Second Judicial District Court, Silver Bow County, enjoining it from enforcing the “age rule” against M-H., Jr. (M.H.). We reverse.

The issue on appeal is whether the District Court abused its discretion in granting a preliminary injunction against MHSA.

Section 504 / IDEA

Resolution of this appeal depends, in large part, on the proper interpretation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (§ 504), and the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 through § 1491 (IDEA). Because of the importance of these federal statutes in understanding this case, we begin with a general overview of § 504 and IDEA.

Section 504 was enacted to address discrimination against disabled persons. It provides in pertinent part:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ...

29 U.S.C. § 794(a). Section 504 is divided into different subsections which address subject matters ranging from education and employment to social services. See 34 C.F.R. § 104. The § 504 definition of disabled is broad and includes persons who have “physical or mental impairment which substantially limits one or more major life activities.” See 34 C.F.R. § 104.3(j). A student who meets all of the criteria of § 504 must be provided an opportunity to participate in extracurricular activities, such as interscholastic athletic competitions, which is equal to that of other students. 34 C.F.R. § 104.37(a)(1) and (c)(1).

IDEA originally was enacted to address the failure of state education systems to recognize and meet the educational needs of children with disabilities. 20 U.S.C. § 1400. IDEAis much narrower than § 504 with regard to the types of disabilities which are protected. Compare 20 U.S.C. § 1401(a) with 29 U.S.C. § 706(7)(B) and 34 C.F.R. § 104.3(j). For example, IDEA lists specific disabilities, such as mental retardation, blindness and deafness, which qualify a student for IDEA assistance. See 20 U.S.C. § 1401(a)(l)(i). Thus, all students who are qualified under IDEA also fall within the anti-discrimination protections of § 504; however, all § 504 students are not necessarily IDEA-qualified.

State and local education agencies are required to provide children who qualify as disabled under IDEA with free and appropriate public education which means, in part, special education and related services provided in conformity with an individualized education program (IEP). See 20 U.S.C. §§ 1400(c), 1415; 34 C.F.R. § 300.8(d). An IEP, as that term is used in IDEA, is a formal written statement developed for an IDEA-qualified disabled student; an IEP must specify the student’s educational goals, objectives, curriculum and related services and be in effect before special education is provided to the child. See 20 U.S.C. § 1401(a)(20); 34 C.F.R. §§ 300.340, 300.342, 300.346.

“Each public agency must provide special education and related services to a child with a disability in accordance with an IEP.” 34 C.F.R. § 300.350. “Related services,” as that term is used in IDEA, includes recreational activities where such activities are required to assist an IDEA-qualified disabled student in benefitting from special education. 20 U.S.C. § 1401(a)(17). Thus, where an IEP contains a requirement for participation in extracurricular activities, for example, interscholastic sports, such participation is encompassed in the student’s guaranteed right to free and appropriate public education. See 20 U.S.C. §§ 1400(c), 1401(a)(17), (18) and (20); 34 C.F.R. §§ 300.1, 300.8, 300.16, 300.350.

Facts

MHSA is a nonprofit association incorporated under the laws of Montana. Membership in MHSA is voluntary and is comprised of various public and private high schools, including Butte High School. MHSA has the exclusive authority to supervise, control, regulate and administer interscholastic activities among member high schools. To that end, MHSA has enacted by-laws and rules governing member high schools, including rules addressing eligibility requirements for participating in interscholastic athletic competitions. MHSA has the power to sanction and penalize a member school which allows an ineligible student to participate in such competitions.

Two MHSA by-laws are at issue here. The first is a by-law commonly referred to as the “age rule.” It provides, in pertinent part, that “[n]o student is eligible to participate in an Association contest [including interscholastic athletic competitions] who has become nineteen (19) years old on or before midnight, August 31, of a given year.” Montana High Sch. Ass’n Official Handbook (1995-1996), ByLaws, Article II, Section (8), p. 19. The second is a by-law entitled “IDEA/SECTION 504 AGE. RULE APPEALS” (IDEA/§ 504 appeals rule) which provides that a “special education” student may appeal an MHSA ineligibility decision made under the age rule. Under the IDEA/§ 504 appeals rule, the appealing student has the burden of proof with regard to six enumerated requirements. See Montana High Sch. Ass’n Official Handbook (1995-1996), By-Laws, Article VII, Subsection (B)(4), p. 31. .

Here, M.H. repeated both kindergarten and the third grade due to difficulties in school. In November of 1985, during his second year in the third grade, M.H. was referred to special education and a Child Study Team (CST) determined that M.H. was “Learning Disabled” due to difficulties with reading and spelling. After completing his freshman year at Butte High School in 1993, M.H. was diagnosed with Attention Deficit Disorder (ADD).

During his freshman through junior years at Butte High School, M.H. competed in both wrestling and football. As a result of repeating kindergarten and the third grade, he turned nineteen prior to beginning his senior year. In May of 1995, just before M.H. turned nineteen years of age, a CST determined that M.H. qualified as a § 504 student due to difficulties in English resulting from his ADD. M.H. did not qualify as a disabled student under IDEA.

Joseph Masolo (Masolo), a § 504 coordinator for the Butte public schools, made written recommendations regarding M.H. in a one-page letter. Specifically, Masolo recommended that M.H. continue to participate in wrestling to insure “academic success for the 1995-96 school [year].” Masolo later stated that his letter was an “IEP” developed pursuant to Montana guidelines for § 504 students. See Montana Office of Public Instruction, Section 504 Guidelines for Educators (1995) (OPI guidelines). Masolo correctly noted, however, that § 504, unlike IDEA, does not require the development of an IEP. He acknowledged that, while OPI guidelines recommend development of an “IEP” for § 504 students, such a § 504 “IEP” can be informal and even verbal. Moreover, Masolo recognized — and it is undisputed in this case — that the recommendations he developed for M.H. fall far short of the requirements for an IEP under IDEA.

On behalf of M.H., Daniel J. Peters (Peters), the principal of Butte High School, petitioned MHSA for waiver of the age rule to allow M.H. to participate in wresting and football during the 1995-1996 school year. MHSA held a telephone hearing on the petition, during which Peters explained that M.H.’s parents requested that the age rule be waived due to M.H.’s ADD. MHSA denied the request.

M.H. appealed MHSA’s decision pursuant to the IDEA/§ 504 appeals rule. MHSA conducted a hearing and received evidence according to the procedure provided for such appeals. See Montana High Sch. Ass’n Official Handbook (1995-1996), By-Laws, Article VII, Subsection (B)(3), p. 30. Thereafter, it denied M.H.’s appeal on the basis that M.H. failed to prove, as required by Article VII, Subsection (B)(4), that: (1) he would not create a safety risk to other players; (2) he would not skew the overall competitiveness of the particular activities in which he would participate; and (3) his participation would not result in the exclusion of other eligible players.

M.H., individually and by his parents, filed a complaint and a motion for a preliminary injunction against MHSA in November of 1995, based primarily on IDEA. MHSA opposed M.H.’s motion for a preliminary injunction. It argued that M.H. had not been classified as a disabled student under IDEA, had not received any services under IDEA, had no IEP under IDEA and, therefore, was not entitled to the rights and protections afforded by IDEA.

The District Court held a hearing on M.H.’s motion for a preliminary injunction. M.H. indicated at the beginning of the hearing that he had spoken with MHSA about his intent to amend his complaint. Although M.H. did not file an amended complaint, he stated that he would be asserting a claim based on § 504 and Article VII, Subsection (B)(4) of the MHSA by-laws; he further indicated that he would be deleting the cause of action based on IDEA. MHSA stated that it had no objection to such an amendment of the complaint. Accordingly, the record before us contains evidence and arguments primarily related to § 504.

The District Court concluded that M.H. had a federally protected right to participate in wrestling for the 1995-1996 school year and that MHSA’s denial of M.H.’s application for a waiver of the age rule was arbitrary and capricious and denied M.H.’s due process rights. Thus, having implicitly concluded that M.H. likely would prevail on his underlying § 504 claim, the court further concluded that M.H. would suffer irreparable injury if MHSA enforced the age rule during the pendency of this case. Accordingly, the court granted M.H.’s motion for a preliminary injunction and enjoined MHSAfrom enforcing the age rule against M.H. MHSA appeals. Additional facts are set forth below where necessary.

Discussion

Did the District Court abuse its discretion in granting a preliminary injunction against MHSA?

Section 27-19-201, MCA, which sets forth when a preliminary injunction may be granted, provides in relevant part:

An injunction order may be granted in the following cases:

(1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually;
(2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant!.]

An applicant for a preliminary injunction must either establish a prima facie case on the underlying claim or show that it is at least doubtful whether he or she will suffer irreparable injury before an adjudication on the merits. Knudson v. McDunn (1995), 271 Mont. 61, 65, 894 P.2d 295, 298 (citing Porter v. K & S Partnership (1981), 192 Mont. 175, 181, 627 P.2d 836, 839).

Granting a preliminary injunction is within a district court’s discretion, and we will not interfere unless a manifest abuse of discretion is shown. J.M., Jr. v. Montana High School Ass’n (1994), 265 Mont. 230, 235, 875 P.2d 1026, 1030 (citing Frame v. Frame (1987), 227 Mont. 439, 444, 740 P.2d 655, 659). Where, however, the granting of such an injunction is based on a conclusion of law, no discretion is involved and we review the district court’s conclusion of law to determine whether the interpretation of the law is correct. J.M., 875 P.2d at 1030 (citation omitted).

A. Applicability of T.H.

The District Court relied on T.H. v. Montana High Sch. Ass’n (D. Mont., Sept. 24, 1992), CV-92-150-BLG-JFB, in concluding that M.H. had a federally protected right, by virtue of the “IEP” prepared by Masolo, to participate in wrestling during the 1995-1996 school year. T.H. is distinguishable and, indeed, we distinguished T.H. in J.M. prior to the District Court’s decision in the case presently before us. J.M. is dispositive here with regard to whether, absent an IEP pursuant to IDEA, a learning disabled student has a federally protected right to participate in interscholastic sports.

J.M. involved a Butte Central High School student who repeated the eighth grade due to difficulties in school. As a result, J.M. became ineligible to participate in football and wrestling during his senior year due to MHSA’s maximum participation eligibility requirements. J.M., 875 P.2d at 1028. Two MHSA rules were at issue: the first provided that a student who has attended a secondary school more than eight semesters was ineligible to participate in an Association Contest (eight semester rule); the second provided that “[n]o student shall be eligible to participate in an Association Contest during more than four seasons in any one sport” (four seasons rule). J.M., 875 P.2d at 1028.

MHSA determined that J.M. was ineligible to participate in wrestling and football for the 1993-1994 school year and J.M. appealed. MHSA held an eligibility hearing and subsequently denied J.M.’s request to waive the four season rule for the fall semester, but approved his request for a waiver of the eight semester rule for the spring semester. The basis for MHSA’s decision was that J.M. already had competed in four seasons of fall sports, such as football, but had only competed in three seasons of spring sports. J.M., 875 P.2d at 1029.

J.M. sued MHSA, arguing that he had constitutional and statutory rights under IDEA to participate in fall semester sports. The district court issued a temporary restraining order against MHSA and, as a result, J.M. was permitted to participate in football dining the pendency of his case. Thereafter, MHSA moved to dissolve the restraining order and an evidentiary hearing was held. The district court preliminarily enjoined MHSA from enforcing its four seasons rule against J.M. and from imposing sanctions against Butte Central. Its order was based on IDEA and T.H. J.M., 875 P.2d at 1029.

We discussed T.H. at length in J.M. See J.M., 875 P.2d at 1030-32. T.H. involved a nineteen year old high school student who had an IEP pursuant to IDEA and who became ineligible to participate in interscholastic sports due to MHSA’s age rule. J.M., 875 P.2d at 1030-31. T.H.’s IEP expressly required continued participation in interscholastic sports as a motivational tool. J.M., 875 P.2d at 1031. T.H. sued in federal district court to enforce his rights under IDEA.

The federal district court recognized that, ordinarily, students do not have a constitutional right to participate in interscholastic sports; rather, it is a privilege which may be withdrawn. J.M., 875 P.2d at 1031. It determined, however, that an IDEA-qualified student’s guaranteed right to a free and appropriate public education and related services includes participation in interscholastic sports where such participation is included as a component of the student’s IEP. J.M., 875 P.2d at 1031. On that basis, the court concluded that T.H.’s privilege to participate in interscholastic sports had been transformed into a federally protected right by virtue of his IEP under IDEA and, further, that MHSA denied T.H. due process of law in failing to conduct an appropriate inquiry before depriving T.H. of that right. J.M., 875 P.2d at 1031. Accordingly, the court preliminarily enjoined MHSA from enforcing its age rule against T.H. until an appropriate inquiry could be conducted. J.M., 875 P.2d at 1031. MHSA enacted the IDEA/§ 504 appeals rule and the hearing standards therein in response to T.H. See J.M., 875 P.2d at 1031.

We distinguished T.H. from the situation before us in J.M. Unlike T.H., the student in J.M.

had a specialized educational program, [but] he was not participating in a formal, written IEP established under the statutory and administrative mechanism mandated by IDEA and its implementing regulations.

J.M., 875 P.2d at 1032. Thus, the dispositive elements on which the T.H. court based its conclusion that a federally protected right existed — namely, that the student had a formal, written IEP under IDEA which required his participation in interscholastic sports — were not present in J.M. J.M., 875 P.2d at 1033. We held, therefore, that the district court improperly elevated J.M.’s privilege of participating in interscholastic sports to a federally protected right under IDEA. J.M., 875 P.2d at 1033.

T.H.’s federally protected right to participate in interscholastic sports derived solely from the express requirements of his IDEA IEP. J.M. and the present case share the same dispositive fact which distinguish them from T.H.: in each case, the student did not have an IEP developed pursuant to IDEA which required his participation in interscholastic sports. Consequently, J.M. controls and renders erroneous the elevation of a privilege into a federally protected right, pursuant to an IDEA IEP, in this case. As was the case in J.M., the District Court’s reliance on T.H. under these facts was misplaced.

B. Section 504

The District Court recognized that a “distinguishing feature” of this case, when compared to T.H., is that M.H.’s “IEP” was pursuant to § 504 while T.H.’s was pursuant to IDEA. Based on its review of the OPI § 504 guidelines and a federal regulation, however, the court concluded that “this is a distinction without a difference.” We disagree.

The OPI guidelines provide guidance and set forth recommendations for educators in dealing with § 504 students. The appendix to the OPI guidelines includes the text of 34 C.F.R. § 104.33(b), which defines what constitutes an “appropriate education” under § 504 and provides, in relevant part:

(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met. ...
(2) Implementation of an [IEP] developed in accordance with [IDEA] is one means of meeting the standard established in paragraph (b)(l)(i) of this section.

As is clear from its express language, 34 C.F.R. § 104.33(b)(2) does not require the development of an IEP for § 504 students. Moreover, neither the foregoing regulation nor the OPI guidelines renders a student’s rights under § 504 and IDEA equivalent. Indeed, they are incapable of doing so because the differences between a student’s rights under § 504 and a student’s rights under IDEA are statutory. We conclude, therefore, that the OPI guidelines and federal regulation relied on by the District Court do not support its determination that the differences between M.H.’s one-page letter “IEP” under § 504 and T.H.’s IDEA IEP is “a distinction without a difference.”

Moreover, recent cases from the United States Circuit Courts of Appeals clarify that § 504 is an anti-discrimination statute which does not confer any special rights on disabled persons beyond the right to be free from discrimination based solely on disability. Pottgen v. Missouri State High Sch. Activities Ass’n (8th Cir. 1994), 40 F.3d 926, involved a Missouri high school student who had repeated two grades in elementary school due to a learning disability and turned nineteen before beginning his senior year of high school. Like MHSA, the Missouri State High School Activities Association (MSHSAA) has an age rule which prohibits a student who turns nineteen prior to a certain date from participating in interscholastic sports. As a result, Pottgen was ineligible to play baseball during his senior year of high school. Pottgen, 40 F.3d at 927-28.

Pottgen petitioned the MSHSAA for a “hardship” waiver since he was held back in school due to learning disabilities. MSHSAA denied his petition and Pottgen sued in federal court based, in part, on § 504. Pottgen, 40 F.3d at 928. The district court granted a preliminary injunction enjoining MSHSAA from enforcing its age rule. Pottgen, 40 F.3d at 928.

In addressing MSHSAA’s appeal, the Eighth Circuit recognized that § 504 prohibits discrimination against an “otherwise qualified individual” on the basis of his or her disability and set forth a two-part test for determining whether a student is an “otherwise qualified individual.” A court must determine both whether the individual meets all of the essential eligibility requirements and whether reasonable modifications exist. Pottgen, 40 F.3d at 929.

The Eighth Circuit concluded that MSHSAA had demonstrated that the age rule is an essential eligibility requirement because

[a]n age limit helps reduce the competitive advantage flowing to teams using older athletes; protects younger athletes from harm; discourages student athletes from delaying their education to gain athletic maturity; and prevents over-zealous coaches from engaging in repeated red-shirting to gain a competitive advantage. These purposes are of immense importance in any interscholastic sports program.

Pottgen, 40 F.3d at 929. However, even though Pottgen could not meet this essential eligibility requirement, he would still be an “otherwise qualified individual” for § 504 anti-discrimination purposes if reasonable accommodations would enable him to meet the age limit. Pottgen, 40 F.3d at 929 (citations omitted).

The Eighth Circuit noted that, since Pottgen already had exceeded MSHSAA’s age limit, the only possible accommodation would be to waive the age rule. It rejected Pottgen’s contention that a waiver would be a reasonable accommodation, however, concluding that the waiver of an essential eligibility standard would constitute a fundamental alteration in the nature of the baseball program and that accommodations which require such a fundamental alteration are not reasonable. Pottgen, 40 F.3d at 930. Observing that “[s] ection 504 was designed only to extend protection to those potentially able to meet the essential eligibility requirements of a program or activity,” the Eighth Circuit held that Pottgen was not an “otherwise qualified individual.” Pottgen, 40 F.3d at 930 (citation omitted).

In Sandison v. Michigan High Sch. Athletic Ass’n (6th Cir. 1995), 64 F.3d 1026, the Sixth Circuit followed the Pottgen analysis of § 504’s “otherwise qualified individual” language in a similar age rule case. See Sandison, 64 F.3d at 1034-35. Sandison involved two Michigan high school students who were held back in school due to learning disabilities and became nineteen prior to beginning their senior year in high school. Under the Michigan High School Athletic Association (MHSAA) age rule, students who become nineteen prior to a certain date are prohibited from participating in interscholastic sports. Sandison, 64 F.3d at 1028.

The students sued MHSAAin federal district court, based on § 504, and the court held that the students were “otherwise qualified” and discriminated against based on their disabilities. The federal district court preliminarily enjoined MHSAA from enforcing its age rule against the students. Sandison, 64 F.3d at 1029.

The Sixth Circuit relied on Pottgen and concluded, on the record before it, that the age rule is a necessary requirement of interscholastic sports programs and that waiver of the rule fundamentally alters such programs. Sandison, 64 F.3d at 1035. The court observed that a “significant peculiarity” exists in attempting to characterize waiver of the age rule as a “reasonable accommodation” of a student’s learning disabilities. Sandison, 64 F.3d at 1035.

Ordinarily, an accommodation of an individual’s disability operates so that the disability is overcome and the disability no longer prevents the individual from participating. In this case, although playing high school sports undoubtedly helped the [students] progress through high school, the waiver of the age restriction is not directed at helping them overcome learning disabilities; the waiver merely removes the age ceiling as an obstacle.

Sandison, 64 F.3d at 1035.

The Sixth Circuit also considered the “solely by reason of ... disability” language of § 504 in the context of MHSAA’s age rule. Sandison, 64 F.3d at 1031-33. It noted that the age rule did not preclude the students from participating in interscholastic sports until they turned nineteen and, therefore, the rule was neutral with respect to disability. Sandison, 64 F.3d at 1032. Accordingly, the Sixth Circuit concluded that the age rule does not exclude students “solely by reason of’ their disabilities; rather, it excludes students “‘solely by reason of’ age, not disability.” Sandison, 64 F.3d at 1035.

Both Pottgen and Sandison involved appeals from preliminary injunctions enjoining enforcement of age eligibility requirements for interscholastic sports. In both cases, the Circuit Courts of Appeals held that the preliminary injunctions were improperly granted because the students had virtually no likelihood of success on the merits of their § 504 claims. See Pottgen, 40 F.3d at 930-31; Sandison, 64 F.3d at 1035.

In the present case, the District Court implicitly concluded that M.H. likely would prevail on his underlying § 504 claim. The court then specifically granted the preliminary injunction on the basis that M.H. would suffer irreparable injury if it did not enjoin MHSAffom enforcing its age rule.

The two statutory bases for granting a preliminary injunction at issue here — namely, the “likelihood of success on merits” basis and the “irreparable injury” basis as set forth in §§ 27-19-201(1) and (2), MCA, respectively — are not unrelated. “Injury” is defined as “[a]ny wrong or damage done to another, either in his person, rights, reputation, or property.” Black’s Law Dictionary, 924 (1968). Thus, the irreparable injury basis for granting preliminary injunctions is based on an implicit determination that the applicant is likely to succeed on his or her underlying claim and, as a result, would suffer a “wrong or damage done to ... his person, rights, reputation, or property” if some act were committed or allowed to continue during the litigation.

Similarly, we previously have indicated that a likelihood of success on the merits is not always sufficient, in and of itself, to warrant injunctive relief. See Porter, 627 P.2d at 840. There must also be a showing that, absent a preliminary injunction, the applicant would suffer harm which could not be adequately remedied after a trial on the merits and, therefore, a preliminary injunction is necessary to maintain the status quo and minimize harm to the parties. See Porter, 627 P.2d at 839-40. In other words, the applicant also must make a showing of irreparable harm.

In the present case, the District Court’s conclusion that M.H. would suffer irreparable injury presupposes that enforcement of MHSA’s age rule would constitute a wrong or damage to M.H.’s right to participate in interscholastic sports. As is clear from J.M. and our discussion above, however, participation in interscholastic sports is a privilege, not a right, except in extremely limited circumstances not present here. See J.M., 875 P.2d at 1031-32. Thus, the District Court’s implicit conclusion that M.H. would likely succeed on the merits of his underlying § 504 claim was erroneous.

We previously have indicated that an applicant for a preliminary injunction need not make a case that would entitle him or her to relief at a trial on the merits; an applicant must prove only a probable right and a probable danger that such right will be denied absent injunctive relief. See Porter, 627 P.2d at 840; Boyer v. Karagacin (1978), 178 Mont. 26, 33, 582 P.2d 1173, 1177. Indeed, we consistently have held that district courts cannot issue preliminary injunctions absent the applicant establishing a prima facie case on the underlying claim or, based on the showing made, that it is at least doubtful whether or not the applicant will suffer irreparable injury before adjudication of his or her rights. See, e.g., Porter, 627 P.2d at 839; Boyer, 582 P.2d at 1177-78.

Here, the District Court concluded that M.H. would suffer irreparable injury based on its erroneous conclusion that M.H. had a federally protected right to participate in interscholastic sports. We hold that the District Court erred in concluding that M.H. would suffer irreparable injury and, therefore, that the court manifestly abused its discretion in granting a preliminary injunction against enforcement of MHSA’s age rule. We reverse, dissolve the injunction and remand for such further proceedings as may be appropriate, consistent with this opinion.

JUSTICES NELSON, ERDMANN and LEAPHART concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

I agree with the District Court’s conclusion that whether M.H.’s independent education program was implemented pursuant to § 504 of the Rehabilitation Act of 1973, or the Individuals With Disabilities Education Act is a distinction without a difference.

Although not necessary to the implementation of § 504 services, an independent education program is one alternative method of complying with the requirements of § 504 of the Rehabilitation Act. The following federal regulations illustrate the significance of an independent education program (IEP) in the context of § 504.

34 C.F.R. § 104.1 provides that:

The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, which is designed to eliminate discrimination on the basis of handicap in any program or activity receiving Federal financial assistance.
34 C.F.R. § 104.33(a) provides that:
A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.

34 C.F.R. § 104.33(b) gives the following explanation of what is included in an “appropriate public education”:

(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.

Although an individualized education program is not necessary to satisfy the § 504 requirement for “appropriate public education,” it is one acceptable method of complying with that requirement. 34 C.F.R. § 104.33(b)(2) provides:

Implementation of an individualized education program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(l)(i) of this section.

In other words, when an individualized education program is developed for § 504 students to satisfy the requirement that an appropriate public education is being provided by designing services necessary to meet an individual’s educational needs, that IEP is developed to satisfy the secondary education program’s federal obligation to that student. Therefore, an IEP developed pursuant to these regulations is no less a federally-protected right than an IEP developed pursuant to 20 U.S.C. § 1401(a)(18) of the IDEA. Logically, when participation in interscholastic sports is included as a component of an IEP developed for § 504 students, it is also a federally-protected right.

The Montana High School Association (MHSA) was a party to T.H. v. Montana High School Association (D. Mont. Sept. 24, 1992), CV 92-150-BLG-JFB. It did not appeal from the Federal District Court’s adverse decision in that case, and is therefore, collaterally estopped from denying its applicability based on subsequent decisions by federal courts of appeal in other circuits.

In the relevant part of the T.H. decision, Federal District Court Judge Battin held that:

20 U.S.C. § 1400(c) guarantees T.H. the right to a free and appropriate public education, “provided in conformity with [an] individualized education program ....” 20 U.S.C. § 1401(18); 34 C.F.R. § 300.4. When participation in interscholastic sports is included as a component of an IEP as a “related service,” see 20 U.S.C. § 1401(1), (17), the “privilege” of competing in interscholastic sports is transformed into a federally protected right.
8. Because T.H. has a federally protected right, and not a mere privilege, to participate in interscholastic sports, due process required that the MHSA conduct meaningful, individualized inquiry into T.H.’s request for a waiver from the age rule. ... By failing to conduct a case-specific factual inquiry into T.H.’s request for a waiver, and by denying a waiver without a sufficient evidentiary basis for that decision, the MHSA has made a mockery of the waiver provisions.
10. In this context, due process requires that the MHSA conduct an individualized inquiry to determine whether any of the four stated concerns underlying the age rule are implicated and violated by T.H.’s participation in interscholastic sports, before it may deny waiver of that rule. The mere fact that T.H. is over the stated age limit justifies initial application of the rule, but does not justify a refusal to waive the rule, where a federally protected right to participate is concerned.
11.....
First, the MHSA must conduct a hearing and determine whether T.H.’s participation in interscholastic sports actually creates a safety risk to other players. ...
Next, the MHSA must determine whether T.H.’s participation would skew the overall competitiveness of the particular interscholastic sports events. ...
Likewise, the MHSA must specifically determine whether Plaintiff’s participation would result in the exclusion of other eligible players, and other facts relevant to intra-team competition.

T.H., CV 92-150-BLG-JFB, slip op. at 9-12 (footnote omitted).

It is clear from the District Court’s findings of fact in this case that MHSA did not conduct the kind of hearing, nor make the kind of findings which would enable M.H., his family, or the District Court to understand the impact of his participation on the safety of other students, whether his participation would skew competitiveness in his events, or the effect of his participation on other athletes. Absolutely no findings were made in this regard by the MHSA. Instead, it simply shifted the burden to M.H. to prove that these consequences would not occur, and concluded he had not done so. More is required to dispense with the rights provided by federal law.

The MHSA has not contended on appeal that the District Court’s findings of fact were clearly erroneous. Therefore, based on the law which is applicable to this case, the following findings by the District Court are dispositive:

7. ... It was determined by the Child Study Team that M. H. Jr. should receive Section 504 services, because of the discrepancy between the ability of M. H. Jr. to perform well in math and his actual achievements in math. It was further determined that M. H. Jr.’s “I.E.P. will be written by Mr. Masolo (504)”. An I.E.P. is an Individualized Education Program and Section 504 refers to Section 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. Section 794.
9.... The Child Study Team determined that “[M.H.] does much better in his school work when he is involved in wrestling. The Child Study Team strongly recommended that [M.H.] participate in wrestling for the 1995-96 school year.” Accordingly, Mr. Masolo, acting pursuant to the directions of the Child Study Team, set forth the following accommodation in writing for M. H. Jr.:
ACCOMMODATION
1. The 504 coordinator will monitor [M.H.] in his math class on a monthly basis.
2. [M.H.] should be involved in wrestling to insure even great academic success for the 1995-96 school [year].
10. The above special education program has been in place for M. H. Jr. since he began his senior year at Butte High School for the 1995-96 school year. ...
23. The record before this Court does not convince it that the MHSA conducted such an individualized, factual inquiry. The only official form that was adopted by the MHSA seeking facts related to the above three concerns was a form that was to be used when an appeal of the age rule was requested. This form was Plaintiffs’ Exhibit 2B and it asks only for limited general information. No other directions are given to the student seeking the waiver or the student’s representative as to the information that should be provided to the MHSA.
24. The minutes of the first meeting that was held with regard to the appeal (Pi’s Exh. 6) set forth no facts relating to the three concerns underlying the age rule, other than reciting that a poll of the schools against whom M. H. Jr. might be competing in football and in wrestling revealed that seven schools opposed his participation in football and seven schools were in favor of it. With regard to wrestling, twenty-two schools did not object to him participating in wrestling, and eleven schools did object.
25. The minutes of the second hearing where the request for the waiver from the age rule was discussed (see Defendants’ Exhibit A) are even briefer, stating only that the motion was denied after much discussion. There is nothing before the Court that would indicate what, if any, pertinent facts were discussed.
26. The letter from Dan L. Freund (Pi’s Exh. 9) stating that the appeal was denied also sets forth no facts upon which the board’s decision could be based.
27. In view of the extremely sparse documentary record relating to the deliberations of the MHSA, the Court finds that the testimony of Leo Wohler and Dan Freund was not credible.

The majority opinion constructs a substantive difference, where none exists, between those rights created by the Individuals with Disabilities Education Act and the Federal Rehabilitation Act of 1973. In the process, the majority arbitrarily denies procedural safeguards to one class of handicapped students, while implicitly recognizing the need for procedural safeguards for a different class of handicapped students. Whether analyzed in terms of the law, or common sense, that distinction is indefensible.

The District Court’s decision was comprehensive, well reasoned, and fully supported by the record in this case. I would affirm the District Court’s judgment, and for the reasons given, dissent from the majority opinion.

CHIEF JUSTICE TURNAGE and JUSTICE HUNT join in the foregoing dissenting opinion.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS MILTON, Defendant and Appellant,
    No. 94-426.
    Submitted on Briefs August 15, 1996.
    Decided December 12, 1996.
    53 St.Rep. 1337.
    280 Mont. 142.
    930 P.2d 28.

      See C.J.S. Witnesses § 545.
    For Appellant; Eric Olson, Great Falls.
    For Respondent: Joseph P. Mazurek, Attorney General, Barbara Harris, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Thomas Milton (Milton) appeals from a jury verdict in the Eighth Judicial District Court, Cascade County, finding him guilty of aggravated assault, a felony. He also appeals the District Court’s denial of his motion for a new trial. We reverse and remand.

We address the following issue on appeal:

Did the District Court err in denying Defendant the opportunity to cross-examine the victim about a civil lawsuit the victim had filed against the owner of the bar where the assault occurred?

Factual and Procedural Background

Robert Snyder (Snyder), was at the Beacon Bar in Great Falls, Montana, the night and early morning of March 10-11; 1993. While at the bar, he drank a few beers and visited with friends. As he left the bar about 1:00 am, he noticed a commotion outside the door. Snyder saw a black male with braided hair, Milton, standing near the . doorway arguing with another man.

As he walked out the door, Snyder told the two men to stop fighting or he would call the police. Snyder continued toward his car, and as he did so, he felt someone hit him in the neck. Snyder suffered a laceration to the neck just above the clavicle, cutting his jugular vein. Snyder, bleeding profusely, staggered into the parking lot, where he encountered two of his friends. They rushed him to the hospital where he underwent emergency surgery to halt the bleeding. Because of the wound, Snyder lost 30 to 40 percent of his blood volume.

Several law enforcement officers were dispatched to a possible disturbance at the Beacon Bar. When they arrived at the bar, they noticed Milton at the center of a crowd of people. He appeared to be very agitated. The officers took Milton into custody in an attempt to quell any disturbance that might develop. The officers were as yet unaware that there had been a stabbing. They frisked Milton prior to placing him in a patrol car, and as they did so, they discovered that he was holding a small knife in his right hand. The officer who confiscated the knife noticed that there appeared to be blood stains on it.

While attempting to question people in the crowd in front of the bar, the officers received a report that there had been a stabbing at the bar sometime earlier that night and that a young man was in the hospital with life-threatening injuries. An officer was dispatched to the hospital to question the victim. Snyder was able to relate that two black males were involved and that one of the men had braided hair. Snyder later picked Milton out of a photo line-up as the individual who had stabbed him.

Milton was arraigned on April 9,1993, on the charge of aggravated assault, a felony, as specified in § 45-5-202, MCA (1991), to which he pleaded not guilty. Trial began on April 11,1994. During cross-examination of Snyder, defense counsel sought to present evidence that Snyder had engaged an attorney to sue the owner of the Beacon Bar as a result of the injuries Snyder suffered in the parking lot of the bar. The District Court refused to permit this evidence. The defense made an offer of proof on this issue, maintaining that evidence of a pending civil lawsuit by Snyder against the owner of the bar over the incident charged against Milton gave Snyder a motive to testify falsely. The court denied the offer of proof as irrelevant. Following five days of trial, the jury found Milton guilty of aggravated assault.

On May 16, 1994, Milton filed a Motion for a New Trial on the grounds that the District Court should have allowed him to cross-examine Snyder regarding the civil lawsuit. The court denied Milton’s motion stating that since the complaint did not name Milton as a party defendant, evidence concerning the lawsuit was irrelevant.

Milton was sentenced to 20 years in Montana State Prison with an additional five years for the use of a weapon. The sentences were to run consecutively. Milton was also designated a dangerous offender for purposes of parole eligibility.

Discussion

Did the District Court err in denying Defendant the opportunity to cross-examine the victim about a civil lawsuit the victim had filed against the owner of the bar where the assault occurred?

The District Court determined that, since Milton was not named as a party defendant in Snyder’s civil lawsuit against the Beacon Bar, evidence concerning the lawsuit was irrelevant and inadmissible at Milton’s trial on the charge of aggravated assault. Milton contends on appeal that evidence concerning the lawsuit is relevant and admissible to show Snyder’s possible bias or motive to fabricate testimony. The State concedes that evidence concerning the lawsuit is relevant, however, it contends that any error by the District Court was harmless “given the overwhelming evidence of the defendant’s guilt.”

The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. It is generally within the district court’s discretion to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to effectively ascertain the truth, avoid any needless waste of time, and to protect witnesses from harassment or undue embarrassment. State v. Gommenginger (1990), 242 Mont. 265, 274, 790 P.2d 455, 461.

Nevertheless, an accused’s right to demonstrate the bias or motive of prosecution witnesses is guaranteed by the Sixth Amendment right to confront witnesses. Gommenginger, 790 P.2d at 460 (citations omitted). Since bias or motive of a witness to testify falsely bears directly on the issue of the defendant’s guilt, extrinsic evidence is admissible to prove that the witness has a motive to testify falsely. Gommenginger, 790 P.2d at 460 (citations omitted). Thus, the trial court’s discretion in exercising control and excluding evidence of a witness’ bias or motive to testify falsely becomes operative only after the constitutionally required threshold level of inquiry has been afforded the defendant. Gommenginger, 790 P.2d at 461.

In a 1994 case similar to the case before us, this Court held that the proper approach to the question of whether a defendant may cross examine a witness regarding a contemplated civil action against the defendant is to allow the cross-examination. State v. Arlington (1994), 265 Mont. 127,142,875 P.2d 307,316. In Arlington, the District Court granted the State’s motion in limine to exclude testimony concerning a contemplated civil lawsuit against Arlington by the victim of an assault. We said in Arlington, that the contemplated lawsuit was relevant evidence affecting the credibility of the victim and that the trial court’s decision to prevent the defendant from cross-examining the victim was error because the jury was entitled to hear evidence that the victim had an interest in the outcome of the trial. Arlington, 875 P.2d at 315-16.

Although, unlike Milton, Arlington would have been a party defendant in any civil lawsuit, the reasoning we used in Arlington applies in the instant case because Snyder’s chances of prevailing in his civil lawsuit would be greatly increased if Milton was convicted of the charges against him. Snyder alleged in his complaint that employees of the bar “served alcoholic beverages to Thomas Milton even though he was a visibly intoxicated person” and that “[a]s a result of Thomas Milton’s intoxicated condition, he assaulted [Snyder] and stabbed him with a knife.” In addition, Snyder alleged that

[the owner of the bar] was aware of the dangerous propensity of some of its customers including Thomas Milton and negligently failed to provide security sufficient to protect its customers such as [Snyder].

Snyder did have a motive to testify falsely. Consequently, even though Milton was not named as a party defendant in Snyder’s civil lawsuit, evidence of the lawsuit was relevant and admissible at Milton’s criminal trial. Therefore, we hold that the District Court erred in denying defense counsel the opportunity to cross-examine Snyder regarding the lawsuit.

We concluded in Arlington, however, that the error there was harmless. The question in that case was whether the force used by Arlington to defend himself was excessive. Arlington admitted beating the victim and there was extensive evidence that his attack upon the victim was excessive and unreasonable. We said iaArlington that the fact that the victim was contemplating a civil action against Arlington would not have materially affected the jury’s verdict in the face of “the overwhelming evidence provided by the medical testimony and photographic evidence” that the victim was severely beaten .Arlington, 875 P.2d at 316.

After reviewing the record in the case before us, we hold that, contrary to the State’s contention, the evidence against Milton is not “overwhelming” and thus the error was not harmless. Other than the testimony of Snyder, the only individual to see any contact between Milton and Snyder on the night Snyder was stabbed said that the two “came together and fell apart.” This witness testified that she did not see anyone stabbed nor did she see anyone with a knife.

The knife that was taken from Milton was tested by a forensic serologist at the State Crime Lab in Missoula, but she was unable to determine if a stain found on the knife was human blood. Milton’s jacket was also tested for blood stains by the State Crime Lab, but the forensic serologist could not definitely say that the blood found on the jacket was Snyder’s. She could only state that one genetic marker was consistent with Snyder’s blood sample along with 21 percent of the population.

In State v. Rothacher (1995), 272 Mont. 303,901 P.2d 82, we quoted with approval a 1967 United States Supreme Court case wherein that Court stated that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Rothacher, 901 P.2d at 87 (quoting Chapman v. California (1967), 386 U.S. 18,24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705).

Accordingly, because we do not find the error in this case “harmless beyond a reasonable doubt,” we reverse Milton’s conviction on the charge of aggravated assault and remand for a new trial.

JUSTICES GRAY, ERDMANN, LEAPHART and TRIEWEILER concur.