author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    JENNIFER NIMMICK, Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant.
    No. 94-239.
    Submitted on Briefs November 3, 1994.
    Decided March 23, 1995.
    52 St.Rep. 208.
    270 Mont. 315.
    891 P.2d 1154.

      For Appellant: Lon T. Holden and Francis X. Clinch, Jardine, Stephenson, Blewett & Weaver, PC., Great Falls.
    For Respondent: William J. Gregoire, Smith, Walsh, Clarke & Gregoire, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

State Farm Mutual Automobile Insurance Company (State Farm) appeals the decision of the Eighth Judicial District Court, Cascade County, which concluded that Tammy Sobieck (Sobieck) was an uninsured motorist under the terms of Jennifer Nimmick’s (Nimmick) State Farm policy. We affirm in part and reverse in part.

As rephrased by this Court, the issues are:

1. Did the District Court err in determining that, prior to Nimmick’s settlement with Employers Mutual Insurance Company (Employers Mutual), Sobieck was an uninsured motorist pursuant to the terms of Nimmick’s State Farm insurance policy?

2. Did the District Court err in determining that Nimmick’s settlement with Employers Mutual did not affect Sobieck’s status as an uninsured motorist?

Nimmick filed a complaint in the Fourth Judicial District Court, Ravalli County, Montana, alleging the following facts. On May 17, 1990, Sobieck drove an automobile in which Chris White, Allissa Mattson and Nimmick were passengers. The automobile belonged to Sobieck’s boyfriend, Cory Harmon, and was insured by Employers Mutual. Sobieck lost control of the vehicle which ultimately left the road and struck a tree, injuring Nimmick. The complaint accused Harmon of negligent entrustment, White of negligently instructing Sobieck in the operation of a vehicle with which she was unfamiliar and Sobieck of negligent operation of a motor vehicle.

Nimmick’s parents maintained automobile insurance with State Farm at the time of the 1990 accident. While the Ravalli County complaint was pending, Nimmick was also negotiating with State Farm. Nimmick sought to recover under the uninsured motorist provision, claiming that since Employers Mutual denied coverage, the vehicle was uninsured under the terms of the State Farm policy.

Nimmick subsequently entered into a settlement agreement with Employers Mutual, and the Ravalli County cause of action was dismissed. Employers Mutual paid Nimmick $200,000. In the settlement agreement, Employers Mutual stated that it believed that Harmon and White were ‘likely to have insurance coverage for their liabilities.” The settlement was made expressly on behalf of Harmon and White but not on behalf of Sobieck. The settlement released Harmon and White from any and all future liability or claims arising from the accident. Pursuant to the settlement agreement, the claims against Harmon and White were dismissed.

The settlement agreement purported not to be a release of Sobieck, claiming that the $200,000 payment was not made on her behalf. While the Employers Mutual policy covered Harmon and White, the settlement agreement denied that the policy covered Sobieck.

However, the agreement also explained, at some length, what rights Nimmick relinquished in relation to further action against Sobieck. The complaint against Sobieck was to be dismissed without prejudice. Nimmick covenanted that neither she nor her heirs or assignees would execute against Sobieck’s personal assets. The settlement agreement specifically reserved State Farm’s right to seek subrogation against Sobieck. The terms and conditions of the settlement agreement, proposed by Nimmick, were drafted to accomplish two goals: (1) to establish that the $200,000 payment was made on behalf of Harmon and White, not Sobieck, and (2) to preserve Nimmick’s right to seek recovery under her uninsured motorist coverage with State Farm.

On December 29, 1992, Nimmick filed a complaint against State Farm in the Eighth Judicial District Court, Cascade County, Montana. Nimmick claimed that the vehicle in which she was riding at the time of the accident was an uninsured motor vehicle as defined by her parents’ State Farm policies. The basis of the claim was that since Sobieck, the unauthorized driver at the time of the accident, was not covered under the Employers Mutual policy, Nimmick is entitled to uninsured vehicle coverage under the State Farm policy.

On April 15, 1993, State Farm moved for summary judgment, arguing that Nimmick was not entitled to uninsured vehicle coverage under the State Farm policy. The District Court denied State Farm’s motion, concluding that Sobieck was an -uninsured motorist. The parties stipulated to the District Court entering a judgment on the issue of uninsured vehicle coverage pursuant to Rule 54(b), M.R.Civ.R State Farm appeals.

ISSUE 1

Did the District Court err in determining that, prior to Nimmick’s settlement with Employers Mutual, Sobieck was an uninsured motorist pursuant to the terms of Nimmick’s State Farm insurance policy?

Our standard of review of a district court’s summary judgment ruling is the same as that initially used by the district court. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353. We examine the record to determine whether a genuine issue of fact exists. If there is no genuine issue of fact, we determine whether the moving party is entitled to judgment as a matter of law. Cooper, 875 P.2d at 353. We review district court conclusions of law to determine if the court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The District Court concluded that “Tammy Sobieck was an uninsured driver by definition under [the State Farm] insurance policy.”

Nimmick’s State Farm policy defines an uninsured motor vehicle as a vehicle which is “uninsured” as to its ownership, maintenance or use. This policy language reads:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle. Uninsured Motor Vehicle — means:
1. a land motor vehicle, the ownership, maintenance or use of which is: .... [Italics in original; underscore added.]

We have interpreted this policy language to provide uninsured motor vehicle coverage “if there is no insurance as to either [the vehicle’s] ownership or its maintenance or its use.” State Farm Auto. Ins. Co. v. Taylor (1986), 223 Mont. 215, 218, 725 P.2d 821, 823 (citing Finney v. Farmers Ins. Co. (Wash. App. 1978), 586 P.2d 519, 526, aff’d, 600 P.2d 1272 (Wash. 1979)). Thus, even though the ownership of the vehicle in this case was insured by Harmon’s Employers Mutual policy, the vehicle was “uninsured” pursuant to Nimmick’s State Farm policy if Sobieck’s use of the vehicle was not insured.

Nimmick’s State Farm policy goes on to define an uninsured motor vehicle as a vehicle, the ownership, maintenance or use of which is:

a. not insured or bonded for bodily injury liability at the time of the accident; or
b. insured or bonded for bodily injury liability at the time of the accident; but
1) the limits of liability are less than required by the financial responsibility act of the state where your car is mainly garaged; or
2) the insuring company denies coverage or is or becomes insolvent.... [Italics in original; underscore added.]

Employers Mutual initially denied coverage of Sobieck’s use of the vehicle. Therefore, in regard to any claim against Sobieck, the vehicle was uninsured under the express terms of the State Farm policy. Even though the Harmons maintained an insurance policy on the vehicle, Employers Mutual’s denial of coverage rendered the vehicle uninsured under the State Farm policy. Nimmick’s State Farm policy’s uninsured vehicle provision therefore applied to any claims against Sobieck arising from the accident.

We conclude that the District Court properly determined that, prior to Nimmick’s settlement with Employers Mutual, Sobieck was an uninsured motorist pursuant to the terms of Nimmick’s State Farm insurance policy.

ISSUE 2

Did the District Court err in determining that Nimmick’s settlement with Employers Mutual did not affect Sobieck’s status as an uninsured motorist?

State Farm argues that while Sobieck may have originally been an uninsured motorist because Employers Mutual initially denied her claim, her status was altered when Nimmick entered into a settlement agreement with Employers Mutual. State Farm claims that the settlement between Employers Mutual and Nimmick was not solely on behalf of Harmon and White, but rather was on behalf of Sobieck as well.

State Farm relies on a series of cases which stand for the proposition that if the liability insurer initially denies coverage, but later settles with the injured party on behalf of the liable party, the liable party is not “uninsured” and thus the injured party may not recover from his or her own uninsured motorist coverage. It is immaterial whether the insurer continues to deny coverage if it in fact settles on behalf of the liable party. See Jones v. Sentry Insurance Co. (Ct.App.Minn. 1990), 462 N.W.2d 90; Fryer v. National Union Fire Ins. Co. (Minn. 1985), 365 N.W.2d 249; Coleman v. Florida Insurance Guaranty Assoc. Inc. (Fla. 1988), 517 So.2d 686; Rister v. State Farm Mut. Auto. Ins. Co. (Mo.App. 1984), 668 S.W.2d 132.

For example, in Rister, Ricky Rister was killed when the pickup truck in which he was a passenger collided with a fuel transport truck. Rister, 668 S.W.2d at 133. In a suit brought by Rister’s family, the insurer of the pickup denied coverage for the driver, invoking the “fellow employee” exclusion in its policy. The insurer of the pickup later settled with Rister’s family, and the claims against the driver’s estate were dismissed. The Missouri Court of Appeals concluded that, although the insurer of the pickup initially denied coverage, the settlement with Rister’s family revoked the initial denial. Rister, 668 S.W.2d at 134-35. Since Rister’s family recovered insurance benefits on behalf of the driver, he was no longer considered uninsured. Therefore, the Risters could no longer pursue their uninsured motorist claim against Rister’s own insurance company.

We must examine the terms of the settlement agreement to determine if the settlement was in fact on behalf of Sobieck. We first note that Nimmick proposed the relevant terms of the agreement to further her attempt to recover from both Employers Mutual and State Farm. The agreement states, in relevant part:

Nimmick proposed the basic terms of this agreement for the sole purpose of (i) settling her disputes with Harmon and White and (ii) protecting her claims under the underinsured and uninsured provisions of her insurance policy with State Farm Insurance Company (“State Farm Policy”) and (iii) reaching a settlement which would comply with all of the terms and provisions of said State Farm Policy .... [Emphasis added.]

Any ambiguities must be construed against the drafter. Wyman v. DuBray Land Realty (1988), 231 Mont. 294, 298, 752 P.2d 196, 199. In determining the contract’s purpose and intent, we examine the contract as a whole, giving no special deference to any specific clause. Peterson v. Hopkins (1984), 210 Mont. 429, 684 P.2d 1061; St. Paul Fire and Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 665 P.2d 223.

After reviewing the settlement agreement as a whole, we conclude that the settlement was made on behalf of Sobieck as well as Harmon and White. First, we note that Sobieck was a party to the settlement agreement. Had the settlement not been on her behalf, she would not have been included as a party to the agreement. The terms of the settlement also indicate that it was in fact made on her behalf. The settlement agreement reads, in relevant part:

In consideration of the mutual understandings and promises contained herein, the parties hereto hereby covenant and agree as follows: ...
b(l). Execute a covenant not to execute against Sobieck’s personal assets wherein Nimmick and her parents, on behalf of themselves, their agents, heirs, successors, and assigns, shall covenant that they (and all of them) shall never initiate, pursue, or levy any execution for any judgment (obtained or obtainable) against Sobieck, and shall likewise forever forebear to collect (or attempt to collect) any amount as a debt, obligation, or otherwise, relating to any of Nimmick’s claimed injuries arising from the Accident, from the personal assets of Sobieck or any member of Sobieck’s family. This covenant is not intended to affect any right of State Farm, if any, to seek subrogation.
b(2). Execute an agreement not to assign any action, claim or judgment of Nimmick against Sobieck to any other person or entity, including without limitation Mid-Century Insurance Company or any of its affiliates or State Farm Insurance Company or any of its affiliates.
c. Dismiss Nimmick’s Complaint in the tort action ... against Sobieck without prejudice ....
f. Execute a full, final and unconditional release of Employers Mutual for any and all claims under Section 33-18-201 and 33-18-242, Montana Code Annotated, in respect of any claims arising from Tammy Sobieck’s putative status as an insured under the Employer’s Mutual Policy.

In light of this broad sweeping release language, it is disingenuous for Nimmick to claim the settlement was not made on Sobieck’s behalf. A basic premise of contract law is mutuality of consideration. See Richardson v. Safeco Insurance Co. (1983), 206 Mont. 73, 76, 669 P.2d 1073, 1074. The language above, which releases Sobieck from financial responsibility for the accident, clearly appears to be in exchange for the monetary settlement with Employers Mutual. We do not believe releasing Sobieck was a gratuitous act on Nimmick’s part.

Nimmick relies on the purported reservation of State Farm’s right of subrogation found in the settlement agreement. As previously stated, the terms of the settlement agreement state:

This covenant is not intended to affect any right of State Farm, if any, to seek subrogation.

Nimmick argues that because the settlement agreement reserved State Farm’s right to seek subrogation against Sobieck, she has not been “released” from liability for Nimmick’s injuries. Nimmick claims that because Sobieck is still potentially liable to State Farm under a subrogation action, she has not been released and, therefore, the settlement with Employers Mutual was not on her behalf.

This argument is faulty for several reasons. First, an insurer’s subrogation right vests upon its payment of a claim. One authority summarized this principle as follows:

No right of subrogation arises until the claim has been paid. [Footnote omitted.] Thus, before subrogation can be had, the insurer must have paid the insured his loss according to the contract, for it is this securing of satisfaction by the insured which gives the insurer the right to be subrogated to the rights of the insured against a wrongdoer primarily liable for the loss. [Footnote omitted.]

16 Couch on Insurance 2d, § 61:49 (1983). This principle is well-established in our case law. See St. Paul Fire and Marine v. Allstate (1993), 257 Mont. 47, 51, 847 P.2d 705, 707; Skauge v. Mountain States Tel. & Tel. Co. (1977), 172 Mont. 521, 525, 565 P.2d 628, 630.

In this case, State Farm has not paid any benefits to Nimmick. Therefore, State Farm does not have a vested right to seek subrogation against Sobieck.

Secondly, an insurer seeking subrogation has only those rights maintained by its insured. The insurer steps into its insured’s shoes. Therefore, in a subrogation action, the insurer sues the purported tortfeasor in place of its insured. In St. Paul Fire & Marine v. Glassing (1994), [269 Mont. 76], 887 P.2d 218, we adopted language from Couch on Insurance in stating:

The right of subrogation is purely derivative as the insurer succeeds only to the rights of the insured, and no new cause of action is created. In other words, the concept of subrogation merely gives the insurer the right to prosecute the cause of action which the insured possessed against anyone legally responsible for the latter’s harm ....

Glassing, 887 P.2d at 220-21, (citing 16 Couch on Insurance 2d, § 61:37 (1983)).

In this case, Nimmick executed broad sweeping covenants not to execute against the personal assets of Sobieck or her family. State Farm, stepping into Nimmick’s shoes, has likewise been limited from executing against Sobieck. While the settlement agreement purports to maintain State Farm’s right of subrogation, this subrogation right, if any, is very limited.

By severely limiting or destroying State Farm’s right of subrogation, Nimmick further released Sobieck from any potential liability arising from the accident. In a section entitled “Release of Tortfeasor and Effect Thereof,” Couch on Insurance states:

If the employer’s or insurance carrier’s statutory right of subrogation is impaired by the act of the employee in settling with the wrongdoer, the employee’s right to compensation is barred.
A covenant not to levy against the tortfeasor by the insured destroys the right to subrogation, [footnote omitted] and as such may bar the insured’s recovery under the policy. [Emphasis added.]

16 Couch on Insurance 2d, § 61:191 (1983). By inhibiting subrogation, Nimmick has barred her claim against State Farm.

After examining the settlement agreement and its underlying effects as a whole, we conclude that the settlement between Employers Mutual and Nimmick was made on behalf of Sobieck as well as Harmon and White. Because the settlement was on behalf of Sobieck, she is no longer an uninsured motorist under the terms of Nimmick’s State Farm policy. We affirm as to issue one and reverse as to issue two the decision of the District Court.

JUSTICES GRAY, WEBER and NELSON concur.

JUSTICE LEAPHART

specially concurring.

I concur in the result. However, I think the Court has needlessly relied upon both subrogation and insurance contract analyses. Despite the document’s protestations to the contrary, the settlement agreement between Nimmick and Employers Mutual did include Sobieck. Sobieck was a signatory to the settlement and Nimmick gave Sobieck a covenant not to execute against her assets or those of her family. As the Court correctly points out, because the settlement was on behalf of Sobieck, she is no longer an uninsured motorist under the terms of Nimmick’s State Farm policy. The Court does not need to further analyze the case in terms of subrogation theory because a right of subrogation does not even arise unless there is coverage under the policy resulting in payment by the insurer. Here, although Sobieck initially fit the definition of an uninsured motorist under the terms of the policy, the subsequent settlement changed her status.

Since the Court does engage in subrogation analysis, I must observe that, strictly in the context of subrogation law, I would reverse and remand for a determination as to whether or not Sobieck had any assets with which to respond to State Farm’s potential subrogation claim. In other words, I would adopt a “no prejudice” rule whereby a settlement with a tortfeasor would not release an insurer such as State Farm if the plaintiff could show that the tortfeasor was judgment proof and, thus, there was no prejudice to the insurer. However, in the context of an uninsured motorist’s policy, if the insured (Nimmick) entered into an insurance settlement with the tortfeasor (Sobieck), regardless of the amount, Sobieck is no longer “uninsured” under the State Farm policy and there is no insurance coverage. In the absence of coverage and payment by State Farm, the right of subrogation does not come into play. Thus, the question of whether State Farm has, in fact, been prejudiced is not an issue.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

The only issue in this case is whether Tammy Sobieck is an uninsured driver within the meaning of the insurance policy provided by State Farm to Jennifer Nimmick. That policy provided, in relevant part, that:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. ...

Uninsured Motor Vehicle — means:

1. a land motor vehicle, the ownership, maintenance or use of which is:
a. not insured ....

(Underlining added.)

Tammy Sobieck’s use of Cory Harmon’s vehicle was not insured.

Cory Harmon’s vehicle was insured by Employers Mutual Companies. The policy which was issued to him, and which applied to the vehicle being driven by Tammy Sobieck at the time of her accident, had the following exclusion:

A. We do not provide Liability Coverage for any person:
8. Using a vehicle without a reasonable belief that that person is entitled to do so.

According to the deposition testimony of Cory Harmon taken in Employers Mutual’s Ravalli County declaratory judgment action, Tammy Sobieck did not have permission to operate the Harmon vehicle at the time and place where she negligently caused Jennifer Nimmick’s injuries. Based on the arguments of the parties in District Court and on appeal, that testimony is uncontroverted and assumed to be true for purposes of the issue involved in this proceeding. Therefore, based on the plain language of the State Farm and Employers Mutual policies, Tammy Sobieck was uninsured when she negligently lost control of Cory Harmon’s vehicle and caused severe injuries to Jennifer Nimmick. Because she was uninsured, and pursuant to our prior decision in State Farm Mutual Automobile Insurance Co. v. Taylor (1986), 223 Mont. 215, 218, 725 P.2d 821, 823, the majority correctly notes that uninsured coverage was initially available pursuant to the terms of the State Farm policy. That should be the end of our analysis.

However, based on decisions from other jurisdictions which are factually inapposite to this case, the majority concludes that an uninsured driver can become an insured driver because of references to that person in a settlement agreement in which third persons are released.

In all of the cases relied on by the majority, settlement amounts were ultimately paid on behalf of the person for whom coverage was originally denied. See Jones v. Sentry Ins. Co. (Minn. Ct. App. 1990), 462 N.W.2d 90; Fryer v. National Union Fire Ins. Co. (Minn. 1985), 365 N.W.2d 249; Coleman v. Florida Ins. Guaranty Assn., Inc. (Fla. 1988), 517 So.2d 686; Rister v. State Farm Mut. Auto. Ins. Co. (Mo. Ct. App. 1984), 668 S.W.2d 132.

For example, in the Rister decision, the Missouri Court of Appeals simply held that where an uninsured motorist claim is based on an insurer’s denial of coverage, the unconditional withdrawal of that denial precludes uninsured coverage.

Both the Jones decision, and the Fryer decision merely stand for the principle that:

[W]here the liability carrier denies coverage for the involved motor vehicle but subsequently admits coverage prior to the arbitration hearing, such motor vehicle is not an uninsured motor vehicle within the meaning of the policy provision.

Fryer, 365 N.W.2d at 254.

The Florida Supreme Court’s decision in Coleman has nothing to do with the issue involved in this case, but instead relates to when an insured may stack a number of uninsured motorist coverages for which he had paid more than one premium. The case does make passing reference to when an injured party can recover under his or her own uninsured motorist policy, but only in the context of Florida law. The reference has nothing to do with the policy provisions involved in this case, nor the facts involved in this case.

Here, denial of coverage for Sobieck was never withdrawn. Employers Mutual denied coverage for Sobieck the first time a claim was filed, and denied coverage for Sobieck when it ultimately paid money to Nimmick on behalf of Cory Harmon and Chris White.

There is nothing similar about this case and those authorities relied on by the majority.

The settlement agreement upon which the majority opinion is based begins by pointing out that Sobieck did not have permission to drive Harmon’s car at the time of Nimmick’s accident. The agreement specified that while Cory Harmon was an insured according to the terms of Employers Mutual’s liability policy, and that while there was a possibility the District Court would conclude that Chris White was also covered, Employers Mutual continued to deny any coverage for Tammy Sobieck.

The agreement specifically provided that the settlement amounts paid by Employers Mutual were paid on behalf of White and Harmon, and that only White and Harmon and Employers Mutual were released from liability for Nimmick’s injuries. The agreement provided that Nimmick’s tort claim against Harmon and White would be dismissed with prejudice, but that any claim against Sobieck would be dismissed without prejudice.

Furthermore, while Nimmick and her parents agreed not to execute against Sobieck’s personal assets to recover any damages due them, the agreement specifically provided that “[t]his covenant is not intended to affect any right of State Farm, if any, to seek subrogation.”

If these were the terms negotiated in exchange for payment on behalf of Sobieck, they are most inadequate and unlike any other settlement agreement with which I am familiar. To say the least, the terms differed significantly from any of the agreements involved in the cases relied on by the majority.

Based on the language of the agreement entered into between Nimmick and Employers Mutual, I necessarily conclude that nothing therein changed the fact that Sobieck was uninsured based on the plain language of the State Farm and Employers Mutual policies.

Whether or not the majority “believe releasing Sobieck was a gratuitous act on Nimmick’s part,” is irrelevant. The fact is that based on the plain language in the settlement agreement, Sobieck was not released from future liability for her conduct.

The majority next reasons that since an insurer subrogates to only those rights possessed by its insured, State Farm was prejudiced by Nimmick’s waiver of her right to execute against Sobieck’s assets. However, the majority’s subrogation analysis is incomplete and out of context. Nimmick provided only a partial waiver of the right to execute. She specifically reserved whatever right State Farm could claim by operation of law or pursuant to its contract with her.

The plain terms of Nimmick’s agreement with Employers Mutual provided that although neither she nor her parents would execute against Sobieck’s assets, State Farm’s rights to do so would not in any way be impaired. It is the majority’s selective and incomplete discussion of subrogation principles to establish that State Farm’s rights have been diminished in spite of plain contract language to the contrary, which is disingenuous — not Nimmick’s arguments on appeal.

For these reasons, I would conclude that Sobieck was an uninsured driver at the time she negligently caused Jennifer Nimmick’s injuries, and that State Farm’s policy, therefore, provided uninsured motorist coverage to Jennifer Nimmick for Tammy Sobieck’s conduct.

I would affirm the judgment of the District Court.

JUSTICE HUNT joins in the foregoing dissenting opinion.


source: Caselaw Access Project

author: JUSTICE GRAY JUSTICE LEAPHART,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, -vs-PAUL ORAN BLACK, Defendant and Appellant.
    No. 94-253.
    Submitted on Briefs March 16, 1995.
    Decided March 23, 1995.
    52 St.Rep. 215.
    270 Mont. 329.
    891 P.2d 1162.

      For Appellant: Dennis G. Loveless, Attorney at Law, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Ass’t Attorney General, Helena; Mike McGrath, Lewis and Clark County Attorney, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Paul Oran Black (Black) appeals from his conviction by the First Judicial District Court, Lewis and Clark County, of the offense of sexual assault, a felony. We conclude that the District Court did not err in convicting Black of an offense with which he was not specifically charged, that the evidence is sufficient to support the conviction, and that Black was afforded effective assistance of counsel. Therefore, we affirm.

In 1987, Black rented a portion of the shop in which Gary Russell operated an automotive repair business in Helena, Montana; the shop was immediately adjacent to Russell’s residence. Russell’s ten-year-old son, G.R., became acquainted with Black when he visited his father in the shop. G.R. testified that Black gave him several gifts and would grab his buttocks while he was in the shop.

While on a fishing outing with G.R. at Ten Mile Creek, Black pulled down his pants and masturbated in front of G.R. He asked G.R. to expose his penis and, after initially refusing, G.R. did so; Black neither touched G.R. nor asked G.R. to touch him.

During two subsequent outings to Ten Mile Creek, Black told G.R. to pull down his pants and get on his knees; according to G.R., Black then entered him from behind. G.R. also testified to another “entering from behind” incident which occurred at Black’s house and was interrupted when Russell arrived with a vehicle he had been repairing.

G.R. testified that he experienced extreme pain during these incidents and bled after each. After each incident, Black said that what they had done was “perfectly natural” and told G.R. not to tell anyone. G.R. testified that he felt threatened by Black. G.R. did not reveal the incidents to anyone until he suddenly remembered them in September of 1993.

The State of Montana (State) charged Black with sexual intercourse without consent, in violation of § 45-5-503, MCA. Through his counsel, Black notified the State of his intent to rely on an alibi defense. The case was tried to the District Court sitting without a jury.

The court acquitted Black of the charged offense, finding the evidence insufficient to establish beyond a reasonable doubt that Black actually penetrated G.R.’s anus. It found him guilty, however, of felony sexual assault in violation of § 45-5-502, MCA. Black was sentenced to fifteen years’ imprisonment, with five years suspended upon certain conditions. Black appealed. Subsequent events are not at issue in this case.

1. Did the District Court err in convicting Black of sexual assault?

Black advances three fundamental challenges to his conviction of the offense of sexual assault. First, he argues that the District Court was without authority to convict him of an offense with which he was not charged. Second, he asserts that the charging document was insufficient to serve as the basis for a conviction of the offense of sexual assault. Finally, he contends that his constitutional due process rights were violated by the conviction for sexual assault.

We note at the outset that the issue of whether sexual assault is a lesser included offense of sexual intercourse without consent is not before us in this case. Black did not raise the issue in the District Court. Moreover, while he makes a passing reference to the existence of the issue in his opening brief on appeal, that brief contains neither argument nor legal authority relating to the issue, as required by Rule 23(a)(4), M.R.App.P. Indeed, the entirety of Black’s argument in his opening brief relating to the court’s authority to convict him of an uncharged offense is premised upon sexual assault being a lesser included offense of sexual intercourse without consent. It is only in his reply brief that Black argues that sexual assault is not a lesser included offense of sexual intercourse without consent. Furthermore, unlike cases such as State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832, the parties to this case have not raised or argued the plain error doctrine, in either its statutory or judicially-created form, insofar as that doctrine might provide a basis for our consideration of the issue. Under these circumstances, that issue is not properly before us and we specifically do not address it here. Instead, we assume for purposes of this opinion that sexual assault is a lesser included offense of sexual intercourse without consent.

a. Was the District Court authorized to convict Black of the lesser included offense of sexual assault?

Section 46-16-607(1), MCA, provides in pertinent part that a “defendant may be found guilty of an offense necessarily included in the offense charged ....” The language of the statute is so plain as to need no interpretation. See Curtis v. Dist. Court of 21st Jud. Dist. (1994), 266 Mont. 231, 234, 879 P.2d 1164, 1166 (citation omitted). Because we assume for purposes of this case that sexual assault is a lesser included offense of sexual intercourse without consent, the statute provides clear and express authority for Black’s conviction of the offense of sexual assault.

Black relies on § 46-16-607(2), MCA, and the 1991 Commission Comment to the statute in making a circuitous argument regarding when lesser included offense instructions may, may not and must be given and how those issues relate to this case. Little discussion of this argument is necessary.

We note first that, by its terms, § 46-16-607(2), MCA, relates only to jury trials. Questions relating to instructing the jury simply do not arise in bench trials. Thus, § 46-16-607(2), MCA, is inapplicable here.

For the same reason, the Commission Comment stating in part that “[t]his statute is a newly developed provision intended to regulate a jury’s consideration of lesser included offenses” also is inapplicable to this case involving a trial to the court. In addition, we note that the portion of the Comment on which Black relies — allowing a lesser included instruction “only upon a party’s request” and when warranted by the evidence — appears to vary the terms of § 46-16-607(2), MCA, which provides that a lesser included offense instruction must be given upon a party’s request when sufficient evidence supports the instruction.

Black also argues that State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370, supports his position. Like § 46-16-607(2), MCA, Sheppard is inapplicable to this appeal from a bench trial because it addresses only questions relating to a trial court’s responsibilities in instructing a jury on lesser included offenses. Those responsibilities are not relevant where the trial court is deciding questions of both law and fact pursuant to §§ 46-16-103 and 46-16-110(3), MCA, and, as a result, no instructions are given.

We conclude that § 46-16-607(1), MCA, authorizes the conviction of a criminal defendant for a lesser included offense. Under the circumstances of this case, therefore, we hold that the District Court was authorized to convict Black of the offense of sexual assault.

b. Did the charging document provide a sufficient basis for a conviction of the offense of sexual assault?

Black asserts that the information charging him with the offense of sexual intercourse without consent did not provide him with notice sufficient to enable him to prepare his defense to the uncharged offense of sexual assault. His argument is not persuasive.

Section 46-11-401, MCA, sets forth the requirements which must be contained in the charging document. Here, the information charging Black with sexual intercourse without consent meets the statutory requirements; Black does not contend otherwise. He argues that he could not be convicted of the offense of sexual assault because that charge was not specifically included in the information and, as a result, he did not have sufficient notice of the possibility of a conviction of that offense.

As discussed above, § 46-16-607(1), MCA, unambiguously and expressly authorizes a defendant’s conviction of an offense included in the charged offense. The statute itself provides the notice that a conviction for a lesser included offense is possible. Because we assume for purposes of this case that sexual assault is a lesser included offense of sexual intercourse without consent, Black had notice via the information and § 46-16-607(1), MCA, that he could be convicted of the lesser included offense.

While we have not previously addressed the precise issue of notice vis-a-vis § 46-16-607(1), MCA, the California Supreme Court did so succinctly in People v. Lohbauer (Cal. 1981), 173 Cal.Rptr. 453, 627 P.2d 183. There, the California court determined that the requisite notice is afforded where an offense is necessarily included within the statutory definition of the charged offense and a conviction of the included offense is statutorily authorized. Lohbauer, 173 Cal.Rptr. at 454, 627 P.2d at 184.

Nor do the Montana cases on which Black relies support his position. State v. Kills on Top (1990), 243 Mont. 56, 71, 793 P.2d 1273, 1283, State v. Matson (1987), 227 Mont. 36, 43, 736 P.2d 971, 975, and State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 438, all state the general rules regarding the necessity of reasonably apprising the accused of the charges against him in the information so that a person of common understanding would know what offense is being charged. None of those cases involved the issue now before us regarding notice of lesser included offenses vis-a-vis § 46-16-607(1), MCA.

Black also advances arguments, as he did in challenging the District Court’s authority to convict him of the lesser included offense, premised on cases involving a trial court’s jury instructions on lesser included offenses. Here too, as above, those cases are inapplicable to this case which was tried to the District Court sitting without a jury.

Finally, Black argues that “the main case on point” is State v. Copenhaver (1907), 35 Mont. 342, 89 P. 61. He urges that our statements in Copenhaver, 89 P. at 62, that “the defendant was charged with one crime and convicted of another. The judgment must therefore be reversed ...” are equally applicable here. His reliance on Copenhaver is misplaced.

In Copenhaver, the defendant was charged with burglary in the nighttime or, as defined by statute, burglary in the first degree; he was convicted of burglary in the daytime, or burglary in the second degree. We reversed on appeal, concluding that burglary in the nighttime clearly did not “include” burglary in the daytime. Copenhaver, 89 P. at 62. Thus, unlike the present case, Copenhaver did not involve a conviction of a lesser included offense; it involved a conviction of a separate, independent offense which was not a lesser included offense. Indeed, we specifically noted in Copenhaver that § 2147 of the Penal Code — a predecessor to § 46-16-607(1), MCA— would have authorized a conviction for an offense included in the charged offense. Copenhaver, 89 P. at 62.

The information charged Black with sexual intercourse without consent. For purposes of this case, we assume that sexual assault is a lesser included offense of sexual intercourse without consent. Section 46-16-607(1), MCA, expressly authorizes a conviction for an offense included in the charged offense. For these reasons, we conclude that the charging document provided a sufficient basis for Black’s conviction of the offense of sexual assault,

c. Did the conviction of the offense of sexual assault violate Black’s constitutional right to due process?

Black’s due process arguments are premised on his assertion that he did not have notice of the offense of which he ultimately was convicted. We have concluded to the contrary based on the statute. Black had notice of the possibility of a conviction of sexual assault pursuant to § 46-16-607(1), MCA, which specifically authorizes a conviction for an offense included in the charged offense. Little more need be said.

Both the Montana Constitution, Article II, § 24, and the Sixth Amendment to the United States Constitution guarantee accused defendants certain due process, including the right to be informed of the nature and cause of the accusation. Relying on State v. Barker (1993), 260 Mont. 85, 858 P.2d 360, Black argues that his conviction of the offense of sexual assault violated his due process rights.

In Barker, we concluded that a justice court conviction for reckless driving after a charge of driving under the influence of alcohol violated due process. Barker, 858 P.2d at 362. We stated that it is elementary that a party cannot be charged with one offense and “convicted of another independent offense.” Barker, 858 P.2d at 362 (citation omitted). The quoted language establishes the distinguishing factor between Barker and the present case: Barker involved two independent offenses. Indeed, we specifically stated therein that “reckless driving is not a lesser included offense of driving under the influence” and, on that basis, concluded that Barker could not be convicted of an offense “independent” from that charged. Barker, 858 P.2d at 362. Barker has no application here.

Like the California court in Lohbauer, we conclude that the notice required by the constitutional guarantee of due process is afforded where an offense is included within the charged offense and a conviction of the included offense is authorized by statute. We hold that Black’s due process rights were not violated, under the circumstances of this case, by his conviction of the offense of sexual assault.

2. Does sufficient evidence support Black’s conviction of the offense of sexual assault?

Our standard in reviewing the sufficiency of evidence in criminal cases is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Licht (1994), 266 Mont. 123, 879 P.2d 670, 675 (citation omitted).

Black does not dispute that G.R.’s testimony establishes the elements of sexual assault as that offense is statutorily defined. Moreover, the law is clear in Montana that a victim’s testimony in a sex offense case is sufficient to sustain a conviction and needs no corroboration. State v. Biehle (1992), 251 Mont. 257, 260, 824 P.2d 268, 270-71.

Black argues that, in rejecting G.R.’s testimony regarding the extent of the actual sexual intercourse or penetration, the District Court determined that G.R. was not a credible witness. With that purported determination as a base, Black contends that adding discrepancies in G.R.’s testimony and that of others testifying compels a determination that G.R.’s testimony was incredible in its entirety and, therefore, insufficient to support the conviction.

Black cites no authority for his position. In addition, he apparently overlooks the District Court’s specific determination that “G.R. was a credible witness.” As we have stated,

[a] trial court acting as a finder of fact is in the best position to observe the witnesses, including their demeanor and credibility.... The weight of the evidence and the credibility of the witnesses are exclusively the province of the trier of fact....

State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94 (citation omitted).

The court’s credibility determination and the weight it gave G.R.’s testimony were exclusively within its province as the trier of fact in this case; the same is true regarding the court’s weighing of all the evidence before it, including discrepancies in testimony. We will not substitute our judgment for that of the trier of fact on matters of credibility and the weight of evidence. We hold, therefore, that sufficient evidence supports Black’s conviction of the offense of sexual assault.

3. Was Black afforded effective assistance of counsel?

This Court has adopted the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, for determining whether counsel was ineffective. State v. Mahoney (1994), 264 Mont. 89, 99-102, 870 P.2d 65, 72-73. Under the first prong of that test, a defendant must show that counsel’s performance was deficient by demonstrating that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment to the United States Constitution; under the second prong, a defendant must show that counsel’s deficient performance so prejudiced him that he was deprived of the right to a fair trial. Mahoney, 870 P.2d at 72-73.

Black’s contention that he did not receive effective assistance of counsel is premised on two alleged deficiencies. Black relies first on State v. Denny (1993), 262 Mont. 248, 865 P.2d 226, in arguing that counsel’s failure to interview witnesses who would have supported his alibi defense constituted deficient performance. In this regard, we note that the alleged failure to interview helpful witnesses cannot be either established or disproved on the record before us; as a result, that allegation of ineffective assistance of counsel cannot be addressed in this direct appeal from Black’s conviction.

Black also argues that counsel failed to follow up on discrepancies in the testimony of the State’s witnesses. Here, we need consider only the first prong of the Strickland test to conclude that Black has not met his burden of establishing ineffective assistance of counsel. The record before us establishes that counsel cross-examined each of the State’s witnesses. The cross-examinations tested the witnesses’ memory of events occurring some six years earlier and attempted to cast doubt on the witnesses’ recollections and credibility. Black cites no authority in support of his general and conclusory allegation that more, or different, cross-examination was required.

A strong presumption exists that counsel’s conduct falls within the wide range of reasonable professional assistance. Denny, 865 P.2d at 228-29; citing Nealy v. Cabana (5th Cir. 1985), 764 F.2d 1173, 1177-1178. Black’s conclusory allegations do not begin to establish that counsel’s performance was not reasonable under prevailing professional norms. See Denny, 865 P.2d at 228; citing Lawrence v. Armontrout (8th Cir. 1990), 900 F.2d 127, 129 (citation omitted). We conclude that Black has not met the first prong of the Strickland test by demonstrating record-based deficient performance by counsel and, to that extent, we hold that he was afforded effective assistance of counsel.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and WEBER concur.

JUSTICE LEAPHART,

dissenting.

I dissent for the reason that I find the Court’s reasoning offends due process of law. The majority points out that the question of whether sexual assault is a lesser included offense of sexual intercourse without consent has not been addressed by this Court. The Court takes the position that the issue is not properly before the Court because Black did not raise this issue in his opening brief. As it has done on four previous occasions, the Court then declines to rule on that question but assumes, for purposes of this decision, that sexual assault is a lesser included offense of sexual intercourse without consent. State v. Sheppard (Mont. 1995), 890 P.2d 754, 52 St.Rep. 106; State v. Ogle (1992), 255 Mont. 246, 841 P.2d 1133; State v. Sheppard (1992), 253 Mont. 118, 832 P.2d 370; State v. Lundhlade (1986), 221 Mont. 185, 717 P.2d 575. Based upon that assumption, the Court then determines that the District Court was within the law and the constitution when it found Black guilty of sexual assault even though Black was charged only with sexual intercourse without consent. A criminal conviction cannot be based upon an assumption of such a fundamental legal proposition.

The majority concedes that the question of lesser included offense has not been addressed. Nonetheless, it is willing to affirm the conviction based upon an assumption that the crime of which Black was convicted (sexual assault) is a lesser included offense of the crime with which he was charged (sexual intercourse without consent). Since the question is admittedly an open question, let us assume the opposite — that sexual assault is not a lesser included offense. Then, of course, Black stands convicted of an offense for which he was given no notice. The Information does not charge Black with sexual assault. Black would have had no reason to believe that he was even at risk of being convicted of sexual assault until such time as the court rendered its final judgment. Without advance knowledge of what the charge is, the accused is unable to exercise any meaningful decisions about his defense: what witnesses (if any) to call, whether he will take the stand himself, whether he will seek a bench trial or a jury trial — just to name a few of the more obvious and basic decisions confronting a person accused of a crime.

Due process of law requires, at a minimum, that a defendant be reasonably apprised of the charges against him in the charging document in such a manner that a person of common understanding would know what offense is being charged. State v. Kills On Top (1990), 243 Mont. 56, 71, 793 P.2d 1273, 1283. In State v. Barker (1993), 260 Mont. 85, 89, 858 P.2d 360, 362, we held that it is “elementary” that a party cannot be charged with one offense and convicted of another independent offense. In my opinion, this Court cannot circumvent such a fundamental and “elementary” legal proposition by resorting to an assumption that sexual assault is a lesser included offense merely because Black’s counsel has failed to raise the issue in his opening brief. Black’s counsel did contend, in his Issue number two, that Black was convicted of an offense of which he was not charged. In its Answer brief, the State countered that sexual assault is a lesser included offense of sexual intercourse without consent and, as such, notice of the lesser included offense is included within the charge of the greater offense. Black, in his Reply brief, argued that sexual assault is not a lesser included offense. Thus, although the issue could have been more artfully raised and addressed, the parties did discuss and brief the issue. Given the fundamental and elementary nature of the issue — if the trial court were incorrect in assuming that sexual assault is a lesser included offense — that assumption amounts to plain error which this Court should address regardless of whether defense counsel raised the issue in a proper manner. In State v. Voegele (1990), 243 Mont. 222, 224, 793 P.2d 832, 834, this Court held that:

“[w]hen the substantial rights of a defendant are involved, the lack of timely objection does not preclude us from exercising our power of discretionary review to examine any error at the trial court level.” State v. Wilkins (1987), 229 Mont. 78, 80-81, 746 P.2d 588, 589. This discretionary review under the plain error doctrine provides a remedy to prevent manifest injustice and will only be used in exceptional cases.

In addressing the power of an appellate court to raise, sua sponte, and determine issues which were not raised either in the trial court or by any of the parties on the appeal, the Kansas Supreme Court has stated:

The conclusion which we have reached from these cases is that, although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where considerations of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights.

State v. Puckett (Kan. 1982), 640 P.2d 1198, 1201.

It is axiomatic that the right to be put on notice of the crime you are being charged with is a fundamental as well as a “substantial” right. If we assume that the District Court was incorrect in its assumption, this is one of those “exceptional” cases in which the Court must invoke the doctrine of plain error in order to prevent manifest injustice; the manifest injustice being that Black is deemed to have been put on notice of the crime of sexual assault by virtue of having been charged with sexual intercourse without consent. This result is reached via an assumption (rather than a legal conclusion) that sexual assault is a lesser included offense of sexual intercourse without consent. This assumption flies in the face of the notice requirement of the guarantee of due process. Either sexual assault is a lesser included offense or it is not. If it is, then under the law, Black is deemed to have been put on notice of that offense when he was charged with sexual intercourse without consent. If it is not, then Black was not put on notice of the crime of which he was ultimately convicted and his conviction cannot stand.

For the above-stated reasons, I dissent from the Court’s decision to affirm a conviction based upon a mere assumption that sexual assault is a lesser included offense of sexual intercourse without consent.

JUSTICE TRIEWEILER and JUSTICE HUNT join in the foregoing dissent of JUSTICE LEAPHART.


author: JUSTICE LEAPHART JUSTICE WEBER

text:
    IN THE MATTER OF J.K.C., A Youth.
    No. 94-464.
    Submitted on Briefs February 9, 1995.
    Decided March 23, 1995.
    52 St.Rep. 221.
    270 Mont. 342.
    891 P.2d 1169.

      For Appellant: Jeffrey T. McAllister; Conklin, Nybo, LeVeque & Murphy, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Ass’t Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

J.K.C. appeals from an order of the Eighth Judicial District Youth Court, Cascade County, waiving jurisdiction and transferring his case from Youth Court to District Court. We reverse.

BACKGROUND

The facts the State alleges which lead to the case against J.K.C. are as follows. On April 4, 1994, J.K.C., who was fourteen years old at that time, was scheduled to accompany his adoptive parents to the Great Falls police station to discuss allegations of J.KC.’s misconduct unrelated to the charges in this case. Before the appointment at the police station, J.K.C. ran away from home. J.K.C. had a handgun in his possession and stole the keys to a car at Rice Motors’ car lot. On the evening of April 4, 1994, J.K.C. and another youth went to Rice Motors and stole the car.

J.K.C. and the other youth eventually drove to Anne Kolstad’s house. While carrying the handgun, J.K.C. went to Kolstad’s door, broke out a window in her door, and demanded money from her. Kolstad hid to the side of her door and called 911. J.K.C. retreated to the car without taking anything from Kolstad. The two youths then drove to a convenience store. J.K.C. filled the car with gas and entered the store. Once inside, he asked the clerk something to the effect of “Doesn’t it suck working nights?” J.K.C. then shot the clerk twice. The clerk was not killed. J.K.C. was apprehended in the early morning hours of April 5, 1994.

On April 5,1994, the State filed a petition in Youth Court alleging that J.K.C. was a delinquent youth and had committed attempted deliberate homicide, attempted robbery, and felony theft. On April 20, 1994, the State moved the Youth Court for an order to transfer the case against J.K.C. from Youth Court to District Court. The Youth Court held a hearing on the motion to transfer J.KC.’s case on June 21, 1994. On July 12, 1994, the Youth Court entered its order transferring all three charges against J.K.C. to District Court.

One issue raised on appeal is dispositive: Whether the Youth Court erred in ordering J.KC.’s case transferred to District Court.

STANDARD OF REVIEW

We review orders transferring a matter from youth court to district court to determine whether the youth court abused its discretion. In the Matter of T.N. (1994), [267 Mont. 81], 881 P.2d 1329, 1332 (citing In the Matter of J.A. (1992), 255 Mont. 214, 841 P.2d 1130). This Court will not find an abuse of discretion where there is substantial credible evidence to support the findings of the youth court. Matter of T.N., 881 P.2d at 1332.

DISCUSSION

Section 41-5-206, MCA, controls transfers from youth court to district court. It provides in relevant part:

(1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prosecution to the district court if:
(a) (i) the youth charged was 12 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act would constitute ... the attempt, as defined in 45-4-103, of either deliberate or mitigated deliberate homicide if the act had been committed by an adult;
... and
(d) the court finds upon the hearing of all relevant evidence that there is probable cause to believe that:
(i) the youth committed the delinquent act alleged;
(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and
(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.

J.K.C. contends that the State failed to demonstrate that the seriousness of the offense and the protection of the community require treatment beyond that afforded in juvenile facilities as required by § 41-5-206(l)(d)(ii), MCA.

One of the purposes of the Montana Youth Court Act is “to remove from youth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care, rehabilitation, and, in appropriate cases, restitution as ordered by the youth court....” Section 41-5-102(2), MCA. We previously have stated that:

To assume that juvenile facilities are inadequate from the mere fact that the youth is charged with a serious offense, completely ignores the rehabilitative purpose of the [Youth Court] Act... and is tantamount to a judicial admission the juvenile facilities in Montana are inadequate to cope with the hard core youth offender. We will not do this.

In the Matter of J.D.W. (1994), [267 Mont. 87], 881 P.2d 1324, 1328, (quoting In the Matter of Stevenson (1975), 167 Mont. 220, 228, 538 P.2d 5, 9). In Matter of Stevenson, the youth was accused of committing, or being legally accountable for, attempted robbery and aggravated assault as a result of an attempted armed robbery in which the proprietor of a grocery store was severely wounded by a shotgun blast. The youth court ordered the case transferred to district court. This Court remanded the case because the seriousness of the offense alone did not demonstrate that juvenile facilities were inadequate. Matter of Stevenson, 538 P.2d at 9.

The State contends that it offered sufficient testimony to uphold the transfer from Youth Court to District Court. However, the testimony in the case does not support the State’s position.

Caroline Tyler, a deputy juvenile probation officer who was assigned to J.KC.’s case, testified that J.K.C. had emotional problems that could be effectively treated in the juvenile system. She also testified that she did not think the adult system offered appropriate treatment programs for J.K.C. and that J.KC.’s case should not be transferred to District Court. Richard Boutilier, the chief juvenile probation officer for Cascade County, testified that it was his opinion that J.KC.’s case should be transferred to District Court so J.K.C. could be supervised beyond the age of 18 or 19. Boutilier testified that J.K.C. should remain in the juvenile system until age 18 to receive the services available in the juvenile system. He stated that the juvenile system had sufficient resources to treat J.K.C. up to the age of 18 or 19. He also expressed his opinion that the juvenile system offered J.K.C. a better rehabilitation program than the adult system does. Boutilier admitted that there was no evidence that J.K.C. would need treatment or supervision beyond the age of 19. On cross-examination, Boutilier stated that his opinion that J.KC.’s case should be transferred to District Court was based solely on the seriousness of the offenses charged.

The State cites In the Matter of K.M.H. (1988), 231 Mont. 180, 752 P.2d 162, and Matter of T.N., supra, in support of its position that there was sufficient evidence to justify a transfer to district court. However, both are distinguishable from the present case. In Matter of K.M.H., testimony was offered that the youth could very possibly repeat his destructive behavior and that juvenile facilities were inappropriate for his treatment. Matter of K.M.H., 752 P.2d at 164. In Matter of T.N., testimony was offered that the youth could feel pressured into committing similar violent behavior, that Pine Hills was inadequate for the youth’s treatment, and that other juvenile treatment centers probably would not accept the youth. Matter of T.N., 881 P.2d at 1332-33.

In the present case, no testimony was offered that juvenile facilities would be inappropriate for J.K.C. In fact, both Tyler and Boutilier testified that J.K.C. should be rehabilitated in the juvenile system, although Boutilier testified that J.K.C. should be transferred to the adult corrections system after the age of 18.

This case is also distinguishable from Matter of J.D.W., 881 P.2d at 1327-28, where the youth court transferred jurisdiction relying on the fact that the youth court would not have jurisdiction over the youth for as long as the district court. We held that it was error to transfer the youth’s case to district court without taking any evidence as to whether the juvenile system would be adequate for the youth’s rehabilitation. Since no evidence was offered on the adequacy of the juvenile system, we remanded the case for a further hearing and redetermination. Matter of J.D.W., 881 P.2d at 1329.

Here, the testimony of several witnesses indicates that the juvenile system is adequate to treat J.K.C. Dave Peterson, a juvenile parole officer for the Department of Family Services, testified that Pine Hills juvenile facility currently holds youths who have committed serious offenses, and that Pine Hills is a secure facility. Tyler stated that J.K.C. should be treated in the juvenile system and that the adult court system did not offer sufficient rehabilitation. Boutilier recommended that J.K.C. be placed in a juvenile facility for treatment until reaching the age of 18. He also conceded that his belief that the case should be transferred to District Court was based solely on the seriousness of the offenses charged. The testimony of Tyler and Boutilier does not indicate that juvenile facilities are inadequate to deal with J.K.C. In fact, their testimony indicates just the opposite. There is no substantial credible evidence to support the Youth Court’s findings. We hold that the Youth Court abused its discretion by ordering J.KC.’s case transferred to District Court.

With respect to the dissent, it must be pointed out that in Matter of J.D.W., we remanded because the Youth Court simply took judicial notice that, in the court’s view, Pine Hills and the Youth Court system were inadequate for the youth’s rehabilitation. The State did not have an adequate opportunity to present evidence, on that issue. To the contrary, in the instant case, the State had every opportunity to present evidence and testimony on the issue of the adequacy of the juvenile facility; it simply failed to do so and, accordingly, failed to meet its statutory burden of proof. While this Court is as appalled as the dissent at the aggressive, violent and premeditated nature of the youth’s conduct, nevertheless, the State having had its day in court, there is no legal basis upon which to send this case back to the Youth Court on the premise that at some point the prosecution will finally get it right.

We reverse the order of the Youth Court transferring jurisdiction to District Court. The Youth Court shall assume jurisdiction of the case.

JUSTICES TRIEWEILER, NELSON, HUNT and GRAY concur

JUSTICE WEBER

concurs and dissents as follows:

I agree with the majority opinion in its holding that the Youth Court abused its discretion by ordering J.KC.’s case transferred to District Court. As a result I concur in the reversal of the order of the Youth Court which transferred jurisdiction to the adult District Court. My dissent from the majority opinion is at this point. I would remand the case to Youth Court for a further hearing and a redetermination of the issue of the transfer to adult District Court.

The majority opinion refers to Matter of J.D.W. (1994), [267 Mont. 87], 881 P.2d 1324. In Matter ofJ.D.W. this Court concluded that the order of the youth court transferring the matter to district court was vacated, and the cause was remanded to the youth court for a further hearing and redetermination. I believe the same procedure should be followed here.

In Matter of J.D.W., this Court pointed out that the critical determination was whether the seriousness of the offense and the protection of the community required treatment of the youth beyond that afforded by the juvenile facilities. That is the identical issue which is before us in our present case. In Matter of J.D.W., the judge took judicial notice of the limited type of commitment he could make — he could only commit to the Department of Family Services and that commitment had to be indefinite. In addition the judge pointed out that the average length of time that youths were kept at Pine Hills was three to four months which was not an adequate time for a youth charged with a serious crime. This Court pointed out in its opinion that there was an absence of any recommendation from staff or other persons to demonstrate that J.D.W. could not be properly treated in a youth court facility. As a result, this Court concluded there was an improper waiver of jurisdiction, and reversed the decision of the district court and remanded the case to the same court for a further hearing and redetermination of the issue.

In contrast to Matter of J.D.W., in the present case there was considerable evidence presented by three different parole and probation officers as to the treatment available in the system and as to their opinions as to the adequacy and inadequacy of the system. The majority has concluded that evidence was not adequate and I agree with that conclusion. However, in the same manner as in Matter of J.D.W., I conclude that it is essential in fairness to all involved that the case be remanded to the Youth Court for a further hearing and a redetermination of the issue of transfer. In reaching this conclusion, I note that the defendant does not contest the Youth Court finding that his crime of attempted deliberate homicide was committed in an aggressive, violent, or premeditated manner. The testimony presented to the District Court established that J.K.C. initially demonstrated his aggressive and violent behavior when he attempted with a handgun to rob an 87 year old woman whom he knew from his paper route. Next, after that unsuccessful robbery, J.K.C. suggested robbing the Gas-A-Matt and devised the plan. After pumping gas, J.K.C. entered the store, said to the clerk, “Doesn’t it suck working nights?” and then shot the clerk twice with a 9mm pistol in a clear attempt at deliberate homicide.

I would therefore remand this cause to the Youth Court for a further hearing, following an examination by a qualified mental health expert, and a redetermination of the issue with specific findings and conclusions on the statutory requirements.

CHIEF JUSTICE TURNAGE concurs in the foregoing special concurrence and dissent.


author: JUSTICE HUNT JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM JOSEPH VOTH, JR., Defendant and Appellant.
    No. 94-348.
    Submitted on Briefs January 19, 1995.
    Decided March 23, 1995.
    52 St.Rep. 225.
    270 Mont. 349.
    892 P.2d 537.
    For Appellant: Karl P. Seel, Attorney at Law, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Jane Mersen, Deputy County Attorney, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

On November 17,1993, William Joseph Voth, Jr., was found guilty of, and sentenced, for contempt of court for failing to personally appear at trial in Gallatin County Justice Court on September 29, 1993. Voth petitioned the Eighteenth Judicial District Court, Gallatin County, for a writ of certiorari. The District Court denied the petition and stated that the Justice Court properly held Voth in contempt. Voth appeals. We reverse and remand.

We frame the issue on appeal as follows:

Did the District Court err by concluding that the Justice Court properly heldVothin contempt of courtfor appearing at trial through counselrather than in person?

On January 9,1993, Officers Wade and Slaughter of the Gallatin County Sheriff’s Department arrested and cited William Voth, Jr., for drivingunder the influence of alcohol and/or drugs, a misdemeanor. Following his arrest, Voth posted bond and signed a pre-printed form which provided that he would appear in Justice Court on either January 11 or 13 for arraignment. Voth appeared in Justice Court on January 11,1993. He signed a waiver of his right “to consult an attorney before entering a plea,” filled out an application for court-appointed counsel, which was subsequently denied, and pled not guilty.

On January 11, Voth also signed a pre-printed form entitled “Order for Conditions of Bail/Notice of Hearing/Trial.” The pre-printed order consists of four sections. The first section provided spaces for Voth’s name, the case number, and the statutory violation. The second section provided:

Defendant SHALL NOT
__ Leave Gallatin County _Possess Firearms
2_Leave the State of Montana _2_Use alcohol or drugs
_Contact in ANY WAY unless directed to by the court:

The third section provided:

Defendant SHALL
x Post Bail &551.00 (cont.l _Be released O/R
x Obey all laws 2L_ Make all court Appearances
2L Notify the court of any change in address/phone#
_Check into the Detention Center: Every
Day/Week at_:__m
Other conditions:
Keep court informed of current address
Remanded to Sheriff in Lieu of:_
Posting Bail_Pending Release

The fourth section, labeled “Trial/Pretrial Hearing/Pretrial Hearing,” indicated that Voth requested a jury trial, set a trial date for May 26, 1993, set a pretrial hearing date for April 23, 1993, and designated the name of the presiding Justice of the Peace. The final line of the pre-printed order preceding Voth’s signature provided:

I have read the above and agree to abide by all conditions. I understand if I do not abide by them or appear for trial my bail/bond will be forfeited and a warrant issued for my arrest.

On or about April 23, 1993, attorney Karl P. Seel filed a notice of appearance as counsel of record on behalf of Voth. Upon the County Attorney’s motion to continue, the Justice Court issued an order on May 6 resetting trial for June 9. The order stated: “[Y]ou are further notified that if you do not appear, the Court shall take appropriate action and award costs accordingly.” The order was sent to the County Attorney and to Voth’s attorney. On May 14, Voth’s attorney moved to continue the June 9 trial. The motion was granted without objection.

Trial in Justice Court was held on September 29, 1993. Voth was not personally present; however, his attorney appeared on his behalf. The minutes of the Justice Court indicate that, because Voth did not personally appear, the Justice of the Peace waived the jury trial. A bench trial took place after which the Justice Court found Voth guilty of second offense DUI and imposed sentence.

Immediately following sentencing, the Justice Court issued a bench warrant for Voth’s arrest for contempt on the grounds that Voth “failed to appear at time of trial as ordered.” The bench warrant further ordered that, if apprehended, Voth “be admitted to bail in the sum of $750.00” pending arraignment. An officer of the Sheriff’s Department arrested Voth on November 6, 1993.

Voth posted $1015 in bail, and the Justice Court set a show cause hearing for November 17. The hearing was held on that date. Both Voth and his attorney were present. After hearing arguments by the parties, the Justice Court found Voth guilty of contempt and sentenced him to serve 24 hours in detention. The Justice Court stayed the sentence pending appeal to the District Court.

Voth filed a petition for writ of certiorari requesting the District Court to review the Justice Court’s sentencing order in the contempt proceedings. Hearing was held on the petition on March 1,1994. The District Court ordered the parties to submit briefs and scheduled oral arguments for April 15, 1994. On May 16, 1994, following the April 15 hearing, the District Court filed an order and memorandum denying Voth’s petition for writ of certiorari. Voth filed notice of appeal from the District Court’s order on June 10, 1994.

Did the District Court err by concluding that the Justice Court properly held Voth in contempt of court for appearing at trial through counsel rather than in person?

The State contends that the Justice Court ordered Voth to personally appear at trial. When Voth did not personally appear, the State asserts that the Justice Court properly issued a bench warrant for his arrest pursuant to § 3-10-401, MCA, which provides in part that a justice of the peace “may punish for contempt persons guilty of the following acts and no other ... disobedience or resistance of a lawful order or process made or issued by the justice ....” According to the State, Voth subsequently failed to present any reason for his non-attendance, and the Justice Court properly held him in contempt.

Voth contends that the Justice Court did not order him to personally appear at trial, but instead merely ordered him to make an appearance. According to Voth, he did make an appearance at trial through his attorney of record who was authorized to act on his behalf. Because the Justice Court did not order him to personally appear, Voth asserts that he did not violate the provisions of § 3-10-401, MCA, and therefore, was improperly held in contempt.

Section 46-16-120, MCA, provides:

In all cases in which the defendant is charged with a misdemeanor offense, the defendant may appear by counsel only, although the court may require the personal attendance of the defendant at any time. This language clearly allows all persons charged with misdemeanor offenses to appear through their attorney only unless the court specifically requires their personal appearance.

Examination of the record on appeal reveals that no order or other statement of the presiding Justice of the Peace exists which required the personal attendance of Voth at trial. The pre-printed “Order for Conditions of Bail/Notice of Hearing/Trial” which Voth signed on January 11, 1993, ordered him to “make all court appearances.” Immediately before Voth’s signature, the order provided: “I understand if I do not abide by [the conditions listed above] or appear for trial my bail/bond will be forfeited and a warrant issued for my arrest.” On June 9,1993, the Justice Court issued an order resetting the trial date, and stated “you are further notified that if you do not appear, the Court shall take appropriate action and award costs accordingly.”

At the hearing in District Court, the State called the presiding Justice of the Peace to the stand to testify regarding the Voth case. The Justice of the Peace stated:

[BY THE DEPUTY COUNTY ATTORNEY]
Q: What did you tell Mr. Voth that morning on January 11th, 1993? [BY THE JUSTICE OF THE PEACE]
A: At the time that he appeared, he had entered a not guilty plea to the charge against him and I had imposed conditions of bail. Those conditions of bail included that he not leave the State of Montana, that he not use alcohol or drugs, that he post bail, obey all laws, make all court appearances, keep the court informed of his current address at all times. Apre-trial hearing was set and a jury trial date was set. And he was informed by me that he was required to appear at the trial and at the pre-trial hearing.

While the Justice of Peace specifically ordered Voth to appear, he did not specifically order Voth to personally appear. In proceedings for a misdemeanor offense, unless the court specifically orders the defendant to appear in person, the appearance of the defendant’s attorney at trial satisfies § 46-16-120, MCA. We hold that the District Court erred by concluding that the Justice Court properly held the defendantin contempt.

Reversed and remanded to the District Court for proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER and LEAPHART concur.

JUSTICE NELSON

dissents as Mows:

I respectfiilly dissent. As a consequence of the hearing on the defendant’s petition for writ of certiorari, the District Court, who was in the best position to judge the credibility of the witnesses, found that the Justice Court required, both orally and in writing, the attendance of the defendant at trial; that the defendant offered no explanation for his absence from court at the time of trial; and that, accordingly, the Justice Court acted within its jurisdiction in holding the defendant in contempt for failing to obey a lawful order of the court. Based on the record, the District Judge’s determination of the facts and his decision based on those facts is entitled to be upheld.

The Justice of the Peace testified that the defendant signed the order and agreed to appear at trial. Additionally, the Justice of the Peace testified as follows:

(By the Prosecutor):
Q: Just one more question, Your Honor, about the normal practice or the procedure in your justice court. Can you tell us what the normal procedure is in a DUI case, when a person asks for a trial in a DUI case?
Q: Does the court always require a personal appearance?
A: The court always requires a personal appearance in a DUI case.
(By Defense Counsel)
Q: Now, at the time in which you arraigned Mr. Voth and you filled out the order of conditions, I think in response to the State’s questions you said that’s a practice that you do with everyone?
A: With every DUI.
Q. So you require, regardless of what the statute says about defendants being able to appear by counsel only, you fill out an order that requires them to personally appear? Is that what you’re saying?
A: Yes, that’s the way we have been trained.

From the foregoing testimony and the form order which the defendant signed, acknowledging the necessity that he appear at trial, I conclude that there is substantial evidence in the record to support the District Court’s factual determination that the Justice Court ordered the personal appearance of the defendant at trial, and for its legal conclusion that the Justice Court was acting within its jurisdiction in holding the defendant in contempt for failing to appear personally. I would, accordingly, affirm the District Court’s denial of the defendant’s petition for writ of certiorari.

Finally, I believe that it is also important to emphasize what our opinion does not stand for. While a misdemeanor defendant may, unless his personal appearance is ordered by the court, appear by counsel only, at trial (§§ 46-16-120, MCA, and 46-16-122, MCA,) that does not mean that he may also appear by counsel only, at other proceedings where different statutes require the defendant’s actual presence in open court. See, for example, our decision in State v. Schneiderhan (1993), 261 Mont. 161, 862 P.2d 37, wherein we held that §§ 46-12-201, MCA, and 46-17-203, MCA, require the defendant’s actual appearance in court for arraignment. Schneiderhan, 862 P.2d at page 39-40.

JUSTICES GRAY and WEBER concur in the foregoing dissent.


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    CITY OF CUT BANK, Plaintiff, Appellant, -v-GLACIER COUNTY, MONTANA, DONALD KOEPKE, CLINTON R. PILGERAM & FRED R. JOHNSON, GLACIER COUNTY COMMISSIONERS, Defendants, Respondents.
    No. 94-251.
    Submitted on Briefs December 22, 1994.
    Decided March 27, 1995.
    52 St.Rep. 228.
    270 Mont. 355.
    891 P.2d 1174.

      For Appellant: Selden S. Frisbee, Cut Bank.
    For Respondent: Larry D. Epstein, Glacier County Attorney, Cut Bank.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the grant of summary judgment to Glacier County by the Ninth Judicial District Court, Glacier County. We affirm.

The only issue on appeal is whether the District Court erred in granting summary judgment to Glacier County.

The City of Cut Bank (City) is a municipal corporation located within the political subdivision of Glacier County (County). The County Sheriff’s office operates a dispatch service which dispatches for its own office as well as for the City. The City operates its own dispatch service for its police department, fire department and animal control between the hours of 8:00 am until 4:00 pm. Monday through Friday. The County dispatches for the City between the hours of 4:00 pm and 8:00 am on work days and 24 hours on weekends and holidays and on all occasions when the city dispatcher is unable to dispatch.

The Glacier County Sheriff’s Office dispatch is the designated Public Safety Answering Point (PSAP) for the County pursuant to § 10-4-103(3), MCA. The County sent a letter to the City on July 22, 1988 asking the City to contribute to the financing of the dispatch service which until this time, the County had been funding exclusively. The City refused and the County threatened to cut off the dispatch service to the City as of October 1, 1988.

The City filed a Complaint seeking to have the County continue to make its dispatch service available to the Cut Bank Police Department at no charge. The City sought to have the County enjoined from the cessation of this dispatch service and also requested a writ of mandate to force the County to continue providing the service free of charge to the City.

The County filed an answer and engaged in limited discovery. Subsequently the County moved for summary judgment.

On April 20, 1994, the court granted summary judgment to the County. The City appeals that order.

Did the District Court err when it granted summary judgment to the County?

The City argues that it had an agreement with the County that specifically provides that the County would fund the dispatch service for the City. Further, the City argues that statutes require that the County fund this service for the City. It is the City’s contention that its taxpayers are already paying for this dispatch service and that contributing more money to the County for this service would involve double-taxation.

The County contends that there is no genuine issue of material fact here and that the only issue to be resolved is a matter of law. According to the County’s interpretation of the law, it is not required to provide the City with free dispatch service. In fact, the County argues that it does not have to provide a dispatch service to a city at all but that statutes allow it a choice of three alternatives once it is designated as a PSAP — it can dispatch, relay or transfer a message. The County argues that issues involving taxation are irrelevant to the pertinent issue. Further, the County argues that it is under no contract to the City of Cut Bank.

Summary judgment will be granted if there is no genuine issue of material fact and it is proven that the moving party is entitled to judgment as a matter of law. Rule 56(c) M.R.Civ.R The party seeking summary judgment must prove that no material issues exist. Kittelson v. Archie Cochrane Motors, Inc. (1991), 248 Mont. 512, 813 P.2d 424. Once that is proven, the non-moving party must submit evidence to show that questions do exist as to material issues. Owen v. Ostrum (1993), 259 Mont. 249, 855 P.2d 1015.

The District Court granted summary judgment finding that any fact at issue was not material and counties are not required to provide dispatch service to cities. The District Court did not find any statutory requirement that the County was required to pay the City’s dispatch service during off hours. The District Court found that all taxation arguments were not relevant.

The County has proven that no questions of material fact exist: Cut Bank is a city within Glacier County and is currently receiving free dispatch service from the County, the County has asked for financial help from the City, and the City has denied that help. There is no question that this is the situation. While the City asserts in its pleadings that material issues exist, it has provided no evidence to show that material issues are in any way in controversy. The City may not just assert that material issues exist; it must present depositions, affidavits, some evidence to support its assertions. Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212.

The only question that exists under the facts of this case is a legal one. While the City is correct that the legislature adopted §§ 10-4-101 through 121, MCAin 1985, nothing within these lengthy statutes requires that counties pay for dispatch services to cities within their jurisdiction.

These statutes are contained in a chapter entitled State Emergency Telephone System and provide the requirements of such a system when set up by a public or private safety agency. Provisions enable agencies with common boundaries to make agreements which would provide emergency service. However, the statutes do not require an agency to provide free dispatch service to another entity that shares a common boundary.

The County asked the City in its interrogatories to submit a copy of the agreement that the City stated it had with the County concerning the County’s dispatch service to the City. The City provided a document that it called an “agreement” and which it characterized as a binding contract. Even a cursory inspection shows that it is not a contract. A contract must include identifiable parties, parties’ consent, lawful object, and consideration. Daniels v. Thomas (1990), 246 Mont. 125, 804 P.2d 359. Here, the Only element satisfied is that the document involves a lawful object.

The document is clearly labeled “application” and is a proposed “final plan” to be sent to the State of Montana for approval of a county emergency telephone system. The record does not show that State approval was ever obtained for the plan. The City cannot rely on this document as it is clearly not a contract purporting to provide Cut Bank with free dispatch service.

We do not consider the question of taxation as it is not relevant to the question of whether a county has to provide free dispatch service to a city within its jurisdiction.

We conclude that the City of Cut Bank did not meet its burden of proving that material issues exist and the law involved does not require a county to provide a city within its jurisdiction with free dispatch service. Therefore, we hold that the District Court did not err in granting Glacier County summary judgment.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and HUNT concur.

JUSTICE TRIEWEILER

dissenting.

After reviewing the record, I find it difficult to either agree or disagree with the majority opinion. There is simply an inadequate basis in the record from which to draw any conclusion about the County’s and the City’s respective obligations to each other.

The District Court’s conclusion that Glacier County had no obligation to provide dispatch services to the City of Cut Bank was based, in part, on a 1977 Attorney General Opinion to that effect. However, the City’s claim that it is entitled to dispatch services without further charge is based on Title 10, Chapter 4, of the Montana Code Annotated, which provides for a state emergency telephone system. This chapter of the Code was not even enacted until 1985.

Title 10, Chapter 4, of the Montana Code Annotated, provides for the establishment of public safety answering points at various locations in the State to receive emergency calls based on a 9-1-1 service, and provide a response to those calls. Every city or county which provides emergency services may establish an emergency telephone system. However, once established the system must include 24 hour service accessible by dialing 9-1-1 anywhere within the system’s jurisdiction. The system must also provide for either direct dispatch of safety services, or relay or transfer of 9-1-1 calls to the appropriate safety agency. See § 10-4-103(1) and (2), MCA.

The facility (in this case the Glacier County Sheriff’s Office) in which the local unit of government establishes the emergency telephone system, is known as the “public safety answering point.” Section 10-4-101(13), MCA. When emergency calls are made to a public safety answering point (the Glacier County Sheriff’s Office), the person receiving those calls has a statutory duty to notify the appropriate “public safety agency” (in this case, the City of Cut Bank’s fire department, police department, or animal protection unit) of the request for services. However, the Emergency Telephone System Act seems to provide that that notification can take one of several forms— either “direct dispatch,” or transfer or relay of the call. Section 10-4-101(13), MCA. The transfer method involves transferring the caller to the appropriate provider of emergency services. Section 10-4-101(16), MCA. The relay method requires that the 9-1-1 dispatcher convey the necessary information to the appropriate provider of emergency services. Section 10-4-101(14), MCA. The direct dispatch method, on the other hand, would require the person answering the phone at the public safety answering point (the sheriff’s office) to dispatch the appropriate emergency service units. Section 10-4-101(3), MCA.

I would conclude from the provisions of the Emergency Telehone System Act, that once designated as the public safety answering point for Glacier County, the County had an obligation pursuant to § 10-4-104(2), MCA, to at least notify the City of requests for emergency services within the City’s jurisdiction. However, it is unclear to me from the record in this case whether the County denies any obligation under § 10-4-104(2), MCA, without reimbursement from the City, or whether it merely denies an obligation to provide for direct dispatch of emergency services within the City’s jurisdiction. There is no satisfactory discussion of that issue in either party’s brief, in the majority opinion, or elsewhere in the record.

A second issue which causes me concern with the result arrived at by the majority is the effect of the provision in § 10-4-111, MCA, for the submission of a preliminary plan to the Department of Administration by an applicant for a 9-1-1 jurisdiction (in this case, the County). In response to the County’s request that the City produce a copy of any written agreement which would require it to provide emergency telephone service to the City, the City produced a 27-page document entitled “Emergency Telephone System Plan Summary.” Various pages of the document are referred to by the subheading “Agreement” and appear to be executed by representatives of the National Park Service, the County Ambulance Service, the Comity Commissioners, the County Sheriff’s Department, the County Fire Department, the City of Cut Bank, and the City of Cut Bank Police Department. The purpose of the document, as set forth on page one, was as follows:

This application is to serve as a summary of the Preliminary and/or Final Plan to establish an emergency 9-1-1 telephone system as required by 10-4-101 through 10-4-121, MCA. Submission of this application is intended to expedite the state review and approval process by the Department of Administration.

On page 25 of the plan summary, under the subheading “System Cost,” Glacier County apparently made the following representation:

9-1-1 costs for Glacier County Exceeds [sic] state funding, therefore various county departments [’] budgets will be used to offset differences.

The plan makes no mention of any supplemental funding by the City of Cut Bank and would explain the City’s assumption that by executing this document and submitting it to the Department of Administration as the basis for the Department’s approval of its application for emergency telephone service, the County had agreed to provide the service at no additional cost to the City. The document at least requires further foundation, explanation, and possibly parol evidence to explain its purpose and the parties’ understanding when they executed it. However, I disagree with the majority when it concludes that the document itself does not satisfy the necessary elements of a contract.

The record does not make clear whether the County’s plan summary is a preliminary plan or final plan, and whether it was approved by the Department of Administration. Presumably, if it is the final plan and was approved by the Department of Administration, the County is bound by the terms of the plan, including its offer to make up the difference between State funding and the cost of the emergency telephone services from other County departments.

Finally, the only source of funding for emergency telephone services provided for in the Emergency Telephone System Act is found at § 10-4-201, MCA, which provides that 25 cents a month is to be assessed to each access line of each service subscriber in the State. The legislative history suggests that the Legislature was aware that these charges would be insufficient to fully fund emergency telephone services, but does not indicate where the shortfall was to be made up. The record in this case is devoid of any breakdown of the amount provided to the County and the City pursuant to § 10-4-201, MCA, as opposed to the actual cost of operating the service, and the percentage of that cost assessed to the City. I conclude that this information would also be helpful in resolving the issue raised on appeal by the City.

Other than the plan summary referred to previously (which is only questionably part of the record), the only evidence submitted to the District Court upon which it could base summary judgment was the affidavit of Gary Bjorklund, the Glacier County Sheriff. In his affidavit, he simply pointed out that the dispatch service at the Glacier County Sheriff’s Office is the designated “public safety answering point” for Glacier County 9-1-1 service; he explained that in addition to the County’s own emergency services (the County Sheriff’s Office, rural fire departments, and County ambulance), the Sheriff’s dispatch service served the City Police Department and City Animal Control Service during specified periods of time; and he stated that the County had demanded that the City contribute to the expense of the dispatch service, but that the City has refused to do so.

Other than this sparse information, there is no record on which to base summary judgment in this case. Based on this record, I can neither agree nor disagree with the conclusion arrived at by the majority.

It is clear to me that the County, as the public safety answering point, has a statutory obligation to notify public safety agencies, such as the City of Cut Bank, of requests for service within the agency’s jurisdiction, with or without reimbursement from the City. What is not clear to me is whether the County is refusing to provide notice by either direct dispatch, relay method, or transfer method, or whether the County is simply declining to provide direct dispatch without compensation.

It is also clear, from documents which have been provided to this Court, that some form of agreement was entered into between the County and the City as a basis for the Department of Administration’s approval of the County’s application for an emergency telephone system. That document, while signed by officials from both the County and the City, makes no reference to payment by the City for that service, but suggests that if the cost exceeds State funding, the County will make up the difference. However, this document requires further foundation and explanation.

My concern is that without an adequate record, this Court has decided issues of major significance to local governments around the State, and may have decided those issues incorrectly.

I conclude that the only appropriate resolution of this case from an appellate court’s perspective is to vacate the summary judgment entered by the District Court and remand this case to the District Court for further development of the record. In particular, I would instruct the parties to specify the forms of notification the County is obligated to provide to the City without compensation, pursuant to § 10-4-104(2), MCA, and if there is a difference, which form of notification or dispatch service the County claims it is entitled to charge a fee to perform. I would also direct the parties to provide foundational testimony by the parties who signed the agreement identified as a preliminary plan, which is attached as Exhibit “A” to the City of Cut Bank’s brief on appeal, with some explanation of the purpose for which the document was prepared, what was ultimately done with the document, and what the parties believe it means with regard to payment for emergency telephone services in Glacier County. As the record presently exists, the County has simply ignored the document.

For these reasons, I am unable to concur in the majority opinion. While Glacier County may ultimately be entitled to judgment as a matter of law in this case, I do not believe there is an adequate record on which to arrive at that conclusion at this time.

Therefore, I dissent from the majority opinion.