author: MR. JUSTICE HUNT

text:
    FRANK DONNES, Plaintiff and Respondent, v. GEORGE ORLANDO, Personal Representative of the Estate of Frank Donnes, Deceased, Defendant and Appellant.
    No. 85-395.
    Submitted on Briefs Feb. 26, 1986.
    Decided June 4, 1986.
    720 P.2d 233.

      Kelly & Halverson, P.C., Sheehy, Prindle & Finn, Patrick R. Sheehy, Billings, for defendant and appellant.
    Russell K. Fillner, Billings, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Donnes brought this action in the Treasure County District Court against the estate of his uncle on his claim for services rendered and material furnished. Orlando, as personal representative of the estate, answered and filed two counterclaims alleging loans from decedent to Donnes.

Following a nonjury trial, the District Court ruled that Donnes was not entitled to compensation for work done from October 20, 1978 through August 18,1982 because this work was a gratuity from Donnes to his uncle. The District Court further held that Donnes was entitled to foreclosure of his mechanics’ lien in the amount of $20,685.00 for a rip rap project performed from September 3, 1982 through November 9, 1982, and costs, attorney fees, and interest as provided by law. Orlando received judgment on his counterclaim in the amount of $1,554.00.

Shortly thereafter, jurisdiction of Treasure County was transferred from the Thirteenth to the Sixteenth Judicial District. A hearing was held before the new District Court judge concerning attorney fees. The District Court awarded Donnes attorney fees for foreclosure of the lien in the amount of $7,455.00 plus costs.

Orlando appeals the judgment, and Donnes cross-appeals that part of the judgment denying his claim against Orlando.

We affirm.

The issues raised by Orlando are:

1. Whether the District Court erred in awarding Donnes $20,685.00 for the rip rap project?

2. Whether the findings of the District Court are adequate and support the court’s decision?

3. Whether the District Court erred in awarding Donnes’ attorney fees?

Donnes raises the following issue on cross-appeal: Whether the District Court erred in denying Donnes’ claim for work done prior to the rip rap job?

Donnes is a contractor primarily engaged in earth moving. His uncle, Frank, owned a farm situated on the Big Horn River. Donnes’ father died when he was nine years old. Donnes developed a close relationship with his uncle. The two visited one another once or twice a week and telephoned in between. Donnes and his uncle assisted each other in their respective businesses — the uncle by driving pickups on occasion, visiting job sites with lunches and other supplies, and assisting Donnes financially by making him loans and maintaining funds in their joint names. Donnes assisted his uncle in repairing fence, gathering cattle, fixing water wells, shingling the roof, and generally assisting the uncle whenever requested. These were friendly exchanges of services between relatives for which neither expected compensation and for which no claim is made.

Additionally, however, the uncle allowed Donnes to store equipment on the ranch and use the ranch shop and tools to maintain and repair his equipment as need arose. Donnes performed work on the ranch involving dozing, trenching and ditch cleaning without any express understanding as to payment other than that the uncle would “make it worthwhile.” As a result, Donnes kept no records of dates, hours, equipment used, or materials provided, and neither prepared nor submitted any bills (with two or three exceptions) to his uncle.

In addition to this work, Donnes agreed to perform some rip rap work along the bank of the Big Horn where it was eroding and endangering an irrigation pipe line. Donnes began the project on September 3, 1982. On September 9, 1982, the uncle was found murdered on his ranch. Donnes completed the rip rap project on November 9, 1982. Following denial by the estate of his claims, Donnes filed this action in District Court.

The first issue raised by Orlando is whether the District Court erred in awarding Donnes $20,685.00 for the rip rap project? Orlando claims that the uncle did not agree to pay Donnes $20,685.00 for the project. Instead, he agreed to pay only $25.00 per lineal foot for a total of $6,700.00 This contention is based on the fact that the uncle applied to the Agricultural Soil and Conservation Service (ASCS) for cost sharing for the rip rap project knowing that the ASCS limit for such projects was $25.00 per lineal foot. Donnes contends that his uncle agreed to pay him $20,685.00 for the project.

As we have stated in the past, the judgment of the trial court is presumed to be correct and this Court will draw every legitimate inference to support that presumption. Findings will not be overturned unless there is a clear preponderance of the evidence against them, recognizing that evidence may be weak or conflicting yet still support the findings. Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 38 St.Rep. 1109.

There is substantial credible evidence to support the District Court’s decision to award Donnes $20,685.00 for the rip rap job, and we will not overturn that decision on appeal. Donnes testified that he discussed the rip rap project with his uncle in August 1982. Donnes informed his uncle that he had bid a similar job for Montana Power Company at $20,685.00, and that his uncle’s job would be about the same price. The District Court found that the cost of the Montana Power Company project was established by competitive bidding, and at the time of Donnes’ discussions with his uncle, it was assumed the uncle’s job was comparable and would not cost any more than the company project. Orlando’s contention that the uncle’s application for ASCS cost sharing proves that he agreed to pay only $6,700 is insufficient to warrant reversing the District Court. The uncle failed to complete the necessary steps for cost sharing by not obtaining a Federal Corps of Engineer 404 permit. We will not reverse the District Court absent a clear preponderance of the evidence against them. No such preponderance exists in this case.

The second issue raised by Orlando is whether the findings of the District Court are adequate and support the court’s decision? Orlando cites In re the Marriage of Wilmot (1982), 199 Mont. 477, 649 P.2d 1295, to support his contention that the court’s findings were fatally deficient. In Wilmot, we remanded the case because the District Court’s findings were conflicting and contradictory, with numerous references to evidence without any indication of the weight given that evidence. Orlando argues the findings in this case are equally deficient — that the findings merely restate the parties’ contentions and evidence with no indication of the weight it attached to the evidence, or how the trial court came to the ultimate finding that the uncle agreed to pay Donnes $20,685.00.

We do not agree. In Jensen, 631 P.2d 700, 703, we stated:

“Our ultimate test for adequacy of findings of fact is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and whether they are supported by the evidence presented.”

The findings in Wilmot were contradictory and provided no basis for review. In this case, while some of the findings restate the contentions of the parties, the findings are not contradictory, are supported by the evidence, and provide a basis for review. The District Court found, supported by substantial credible evidence, that Donnes and his uncle discussed the rip rap project, and that the uncle agreed to pay Donnes the same price as the Montana Power Company project. The court stated in finding No. 37:

“[T]he evidence does support the conclusion that the cost of the Montana Power Company project had been established by competitive bidding and, that at the time of [Donnes’] discussions with his uncle, it was assumed that the uncle’s job would be comparable and would not be billed by [Donnes] to his uncle at any higher price.”

Orlando further contends that because the findings do not meet the adequacy test found in Jensen, as they are neither sufficiently comprehensive nor pertinent to the issue to provide a rational basis for decision, then this Court is free to analyze the facts and apply the law without remand. Since we have concluded that the findings are adequate to support the decision, we need not address this issue.

The final issue raised by Orlando is whether the District Court erred in awarding Donnes his attorney fees? We note initially that the determination of attorney fees is largely discretionary with the District Court, and we will not disturb its judgment in the absence of an abuse of that discretion. Collins Agency v. Hagerott (Mont. 1984), [211 Mont. 303,] 684 P.2d 487, 41 St.Rep. 1375; Carkeek v. Ayer (1980), 188 Mont. 345, 613 P.2d 1013. Orlando contends that the award of attorney fees in this case was improper based on four points. First, he claims that Judge Coate abused his discretion by awarding fees in a case he did not try because he could not know all of the circumstances surrounding the underlying foreclosure action. Judge Coate stated in his memo opinion and order:

“When considering the question of reasonable attorney fees, the presiding trial judge is certainly in the best position to make that determination.”

However, Judge Coate also pointed out that the parties had two months following the judgment and prior to the change in jurisdiction to bring the matter of attorney fees before the judge who presided over the foreclosure action. Neither side did, and on January 7, 1985, jurisdiction of Treasure County was transferred from the Thirteenth to the Sixteenth Judicial District.

A judge’s jurisdiction over a case is a matter of law, and Judge Coate obtained jurisdiction over this case as a matter of law on January 7, 1985. While it is preferable that the presiding trial judge consider the question of attorney fees, it is not mandatory. We do not agree that Judge Coate abused his discretion by determining Donnes’ attorney fees.

Second, Orlando contends it was not reasonable for the District Court to grant Donnes’ entire attorney fees when only part of the attorney’s time was spent on the lien foreclosure. In this case, the estate filed a counterclaim against Donnes and it is impossible to segregate the attorney’s time between foreclosure of the mechanic’s lien and defense of the counterclaim. As Judge Coate stated:

“Each case must be decided on its own facts and the Court cannot say that attorney fees should be limited to a certain percentage of the lien that was found to exist . . . Defendant does not attack counsel’s hourly rate nor the number of hours counsel spent on this case.”

We have stated that where an attorney’s time cannot be clearly segregated, he is entitled to a reasonable fee for the case. St. Paul Fire and Marine Insurance Co. v. Cumiskey (Mont. 1983), [204 Mont. 350,] 665 P.2d 223, 40 St.Rep. 891. The District Court found that $75.00 an hour was a reasonable fee, and that 99.4 hours was a reasonable amount of time for this case. We agree.

Orlando’s third argument is that attorney fees were improper where the judgment Donnes received was less than half of what he asked for. This is incorrect. Judge Coate stated:

“Counsel cannot be denied their fee simply because a large recovery was not obtained.
“The fact that Plaintiff did not receive all that he was seeking does not prove that counsel is not entitled to a just fee.”

In Schillinger v. Brewer (Mont. 1985), [215 Mont. 333,] 697 P.2d 919, 42 St.Rep. 408, plaintiff sought to enforce his mechanic’s lien. The District Court found for plaintiff with an offset for the defendant that reduced the judgment below the amount of defendant’s last offer. We reversed the District Court’s award of attorney fees to defendant and remanded the case for a determination of attorney fees for plaintiff. We reasoned that the plaintiff, in establishing his lien, was entitled to attorney fees for the entire action in the District Court.

In this case, Donnes established his lien. Section 71-3-124, MCA, mandates an award of attorney fees. The fact that Donnes did not receive the entire amount of his claim does not alter this result. The award of attorney fees was proper.

The fourth argument is that the District Court erred in awarding attorney fees for time spent collecting attorney fees. While this argument may be correct, it does not apply in this case. We held in Ring v. Hoselton (1982), 197 Mont. 414, 643 P.2d 1165, that a judgment is not final until all the issues have been determined including the determination of attorney fees. Here, the eight hours spent by Donnes’ counsel at the hearing before Judge Coate were spent determining attorney fees, not collecting those fees. Time spent determining attorney fees is as much a part of the case as establishing the lien. We hold that the District Court did not abuse its discretion by awarding Donnes attorney fees in the amount of $7,455.00.

Turning now to the issue raised by Donnes on cross-appeal, Donnes contends that the District Court erred in denying his claim for work done prior to the rip rap project. The work occurred from 1978 through 1982, and consisted of dozing, trenching, backhoe work, grading, and the like. The District Court found that Donnes and his uncle were so close a presumption arose that this work was performed gratuitously. There is substantial credible evidence to support this finding and we will not disturb it on appeal. The District Court stated in finding No. 9:

“[Donnes] testified that he was very close to his uncle. [Donnes’] father died when he was only 9 years of age. From the time [Donnes] was 15 years of age to the time of the death of his uncle, their relationship grew to the point where [Donnes] felt that his uncle would ‘give him anything’ and do anything for him. Likewise, [Donnes] felt the same way toward his uncle.”

The court further noted that Donnes spent several summers on his uncle’s ranch helping with work. Although Donnes and his uncle lived 60 miles apart during the period in question, they “were in practically continuous communication — by visits one from the other once or twice a week, and by telephone calls in between.” Additionally, Donnes and his uncle helped each other in their respective businesses, and the uncle allowed Donnes “to store his equipment on the ranch and use the ranch shop and tools to maintain and repair his equipment as the occasion arose.”

The District Court acknowledged that generally the relationship between uncle and nephew is insufficient to raise a presumption of gratuity.

“However, in this case, the evidence clearly shows that a very close family relationship did, in fact, exist, as a consequence of the death of the nephew’s father, resulting in the nephew and uncle living together at times and thereafter working together in a continuous relationship. Their relationship was much closer than that of the usual uncle and nephew situation.”

The record supports the finding that the close family relationship between Donnes and his uncle raises a presumption that the work in question was performed gratuitously. Once the presumption is applied, it is the burden of the party seeking compensation to overcome that presumption. Shurrum v. Watts (1958), 80 Idaho 44, 324 P.2d 380, 385. Donnes failed to carry this burden. The District Court found that Donnes performed the work in question:

“[W]ithout there being any express understanding as to payment to [Donnes], other than that the uncle would ‘make it worthwhile,’ and [Donnes’] feeling that this meant he would end up receiving either money or a part of the ranch at sometime in the future.”

This evidence is insufficient to justify an express or implied agreement that Donnes would be paid for his work.

Finally, Donnes argues that the issue of presumption of gratuity should have been raised by Orlando in his pleadings as an affirmative defense, and not raised in the final post-trial brief. This is correct. However, we have long held that pleadings will be deemed amended to conform to proof received without objection. Franck v. Hudson (1962), 140 Mont. 480, 373 P.2d 951; Joy v. Little (1958), 134 Mont. 82, 328 P.2d 636. In this case, Donnes raised the issue of the closeness of the family relationship during trial without the necessity of Orlando raising it as an affirmative defense. He testified as to their relationship, and the fact that they often helped each other with no expectation of compensation. Orlando availed himself of the defense without the necessity of pleading it affirmatively. Therefore, Donnes’ argument must fail.

For the reasons stated above, we affirm the District Court in all respects.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROGER HANDY, Defendant and Appellant.
    No. 85-559.
    Submitted on Briefs Feb. 13, 1986.
    Decided June 4, 1986.
    719 P.2d 766.
    Terry Seiffert, Billings, for defendant and appellant.

      Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Harold F. Hanser, Co. Atty., Donna K. Heffington, Deputy Co. Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The Yellowstone County District Court, sitting without a jury, found Roger Handy guilty under Section 61-8-401(l)(a), MCA, of driving a motor vehicle while under the influence of alcohol. Handy appeals raising one issue; i.e., whether the District Court erred in allowing the State to amend the charge to correct an inaccurate statutory reference to which appellant had objected prior to his conviction in the Justice Court. We affirm the conviction.

In November 1984, a Montana Highway Patrol officer arrested the appellant and issued two traffic citations to him. One citation, not at issue here, charged appellant with reckless driving. The instant case arises out of the second citation which charged appellant with violating Section 61-8-406, MCA, “. . . in that said defendant did knowingly or purposely or negligently drive or be in actual physical control of motor vehicle while under the influence of alcohol.” The reference to that statute was incorrect. The language of the citation closely tracks the language of Section 61-8-401(1), MCA, which makes it unlawful “. . . for any person who is under the influence of: (a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public;. . .” However, the citation refers to Section 61-8-406, MCA, which provides:

“It is unlawful. . . for any person to drive or be in actual physical control of a vehicle upon the ways of this state open to the public while the alcohol concentration in his blood, breath, or urine is 0.10 or more.”

It is worth noting that the appellant refused to submit to a blood-alcohol test.

In January 1985, the Yellowstone County Justice Court held a trial on appellant’s two traffic citations. We have no record whatsoever of the Justice Court trial itself. However, both parties agree that following the State’s case-in-chief, appellant moved to dismiss the DUI charge and argued there was an inconsistency between the statutory reference on the charging document and the evidence presented. Both parties also agree that the State, in response to appellant’s motion to dismiss, moved to amend the charge by correcting the statutory reference. There is some confusion as to the resolution of the State’s motion to amend. Appellant asserts that the motion to amend was denied. The Yellowstone County deputy county attorney filed one brief stating that the State did not recall whether the Justice Court granted, denied or ignored the motion to amend. In any event, the Justice Court found appellant guilty of “Drive or Be In Control of Motor Vehicle While Under the Influence of Alcohol.” The Justice Court also found appellant guilty of reckless driving. Appellant moved for judgment notwithstanding the verdict and asserted that the court failed to determine whether appellant was properly charged. The Justice Court denied appellant’s motion. He appealed only the DUI charge to the District Court.

Prior to trial in the District Court, the State again moved to amend the citation by changing the statutory reference from Section 61-8-406, MCA, to Section 61-8-401, MCA. The District Court granted the State’s motion to amend. The court found that the error (the wrong statutory reference) in the DUI citation was a “. . .typographical error, the correction of which will not prejudice the defendant . . . .” In October 1985, the District Court, sitting without a jury, held a trial de novo on the DUI charge and found appellant guilty of driving a motor vehicle while under the influence of alcohol. This appeal followed.

The only issue on appeal, as stated by appellant, is whether the District Court erred in permitting the State to amend the charge. Here, the appellant was charged under the language of Section 61-8-401, MCA, (driving under the influence of alcohol) although the citation listed Section 61-8-406, MCA (driving with a blood alcohol concentration of 0.10 or more). Both the Justice Court and the District Court, in finding appellant guilty, used the language “driving under the influence.” A conviction under Section 61-8-406, MCA, would have been virtually impossible to obtain as appellant refused to submit to a blood-alcohol test.

Appellant argues that the Justice court found him guilty of a crime he was not charged with. We disagree. This Court has repeatedly stated:

“The general rule is that when the facts, acts and circumstances are set forth with sufficient certainty to constitute an offense, it is not a fatal defect that the complaint gives the offense an erroneous name.”

State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 438; quoting State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19, 22. The Schnell Court, citing numerous jurisdictions, also stated:

“The name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the complaint.”

Schnell, 88 P.2d at 22.

In this case, the complaint used the language of Section 61-8-401, MCA, in charging appellant with driving under the influence of alcohol. The judgment of conviction also used that statutory language. Under the rule of Longneck and Schnell, an erroneous statutory reference will not invalidate the charge. The test for the validity of a complaint is whether a person of common understanding would know what was intended to be charged. State v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586; citing State v. Dunn (1970), 155 Mont. 319, 327, 472 P.2d 288, 294. The general rule in Montana is that a complaint is sufficient if it properly charges an offense in the statutory language describing the offense. State v. Hankins (Mont. 1984), [209 Mont. 365,] 680 P.2d 958, 41 St.Rep. 762; citing State ex rel. Glantz v. District Court (1969), 154 Mont. 132, 461 P.2d 193. The disputed complaint charged appellant using the statutory language and we hold that the complaint adequately described, and gave notice to appellant of, the offense he was subsequently convicted of.

Appellant also argues that the District Court could not amend the charge to conform to the Justice Court conviction. Again we disagree. Section 46-11-403, MCA, provides, in pertinent part:

“(2) The court may permit an information to be amended as to form at any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.
“(3) No charge may be dismissed because of a formal defect which does not tend to prejudice a substantial right of the defendant.”

The formal defect of this charge, the incorrect statutory reference, did not prejudice a substantial right of appellant. Appellant was clearly apprised of the charge. Moreover, appellant knew that a conviction under the incorrect statutory reference (for driving with a blood-alcohol level of 0.10 or greater) was virtually impossible because no blood-alcohol test was taken. Appellant knew the charge against him and we hold that the District Court did not err in allowing the State to amend the charge and correct the statutory reference.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, MORRISON and HUNT concur.


author: MR. JUSTICE HARRISON

text:
    CITY OF HELENA, Plaintiff and Respondent, v. LEONARD PETE LAMPING, Defendant and Appellant.
    No. 86-04.
    Submitted on Briefs March 6, 1986.
    Decided June 4, 1986.
    719 P.2d 1245.

      Frederick F. Sherwood, Helena, for defendant and appellant.
    Hull & Sherlock, David Hull, Helena, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the First Judicial District in and for Lewis and Clark County, Montana. The court denied defendant’s motion to suppress certain evidence and defendant appeals. We affirm.

The defendant, Lamping, was arrested by city police in Women’s Park, Helena. He was charged with a violation of the city open container ordinance and with giving alcohol to a minor. Lamping pled guilty to the first charge. The latter charge was dismissed.

After the arrest, Lamping was taken immediately to the county jail to be jailed. According to the jailer on duty, the usual procedure was followed in processing the prisoner. All his personal property was taken from him to be inventoried. While searching Lamping, the jailer pulled out of his shirt pocket what appeared to be a crumpled pack of Marlboro cigarettes. The pack was open. The jailer looked into it because he did not want to throw it away if it contained cigarettes. There was one hand-rolled cigarette in the pack which was determined to be a marijuana cigarette. As a result of finding the marijuana cigarette, the City charged Lamping with misdemeanor possession of dangerous drugs. He was tried and convicted in absentia. On appeal to the District Court, Lamping argued the evidence on which the city relied was obtained through an illegal search. A suppression hearing was held. The motion to suppress was briefed by both sides and denied by the District Court. At the subsequent bench trial, Lamping was found guilty and sentenced to 45 days in jail.

The only issue on appeal is whether the motion to suppress should have been granted.

Evidence which is obtained illegally cannot be admitted at trial because its admission violates defendant’s federal constitutional fourth amendment right against unreasonable search and seizure. Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.#d. 652. This rule was made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 655-657, 81 S.Ct. 1684, 1691-1692, 6 L.Ed.2d 1081, 1090-1091. When a defendant moves to suppress certain evidence, he is entitled to a hearing on his motion, where the admissibility of the evidence is decided by the judge as a matter of law. Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. In addition to the protection accorded by the fourth amendment to the federal constitution and Art. II, Section 11 of the Montana Constitution against unreasonable search and seizure, the Montana Constitution specifically protects the individual’s right to privacy. Art. II, Section 10, 1972 Mont. Const.

Lamping argues the inventory search prior to his incarceration violates Art. II, Section 10, and Section 11 of the Montana Constitution. He relies on State v. Sierra (Mont. 1985), [214 Mont. 472,] 692 P.2d 1273, 42 St.Rep. 106. Sierra is inapplicable in this case, however. The defendant in Sierra was a person detained on suspicion of being an illegal alien. During an inventory search, a suitcase in his possession was opened and searched without a warrant. The case at bar involves an open, somewhat crumpled cigarette package which was in the defendant’s shirt pocket.

Lamping does not contest the legality of the discovery of the Marlboro pack itself. He is contesting the fact the jailer looked inside the open pack. The jailer testified he did not want to throw away the pack if there were cigarettes inside. There is no evidence the jailer was acting unreasonably, or in a non-investigatory way.

The Ninth Circuit Court in United States v. Monclavo-Cruz (9th Cir. 1981), 662 F.2d 1285, 1290, cited with approval by the United States Supreme Court in United States v. Chadwick (1976), 433 U.S. 1, 16, n. 10, 97 S.Ct. 2476, 2486, 53 L.Ed.2d 538, 551:

“Unlike searches of the person, United States v. Robinson, 414 U.S. 218, [94 S.Ct. 467, 38 L.Ed.2d 427] (1973); United States v. Edwards, 415 U.S. 800, [94 S.Ct. 1234, 39 L.Ed.2d 771] (1974), searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest . .

The Circuit Court said:

“We understand this footnote to mean that once a person is lawfully seized and placed under arrest, she has a reduced expectation of privacy in her person. Thus, a search of a cigarette case on the person is lawful once the person is under arrest without reference to any possible danger to the police . . . United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); . . .”

We concur with this distinction drawn between searches of the person and searches of possessions within an arrestee’s immediate control.

Lamping was not subjected to an illegal search, nor was his right to privacy violated when the jailer looked inside the open pack of cigarettes to make sure it was empty. Had the package been empty, it would have been thrown away. Had there been a non-marijuana cigarette in it, it would have been returned to Lamping if he wanted to smoke. According to the jailer, “nine times out of ten a prisoner will ask for a cigarette while he is being booked.” Dangerous instrumentalities can be concealed in innocent looking articles taken from an arrestee’s possession. The state has a compelling interest in protecting prisoners from potential danger. It must protect both the defendant and the officer by accounting for any money a prisoner might have.

In Sierra, supra, while agreeing with the United States Supreme court in Illinois v. Lafayette (1983), 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, that there are numerous, legitimate governmental interests which override the interests of the individual, “we [did not] agree that their existence may permit an inventory search in all circumstances . . . [I]n many of these circumstances the police should use the least intrusive means possible for conducting an inventory search.” 692 P.2d at 1275, 42 St.Rep. at 108.

There are circumstances where a search is not unreasonable for failure to secure a search warrant. The case at bar is one. Lamping’s reasonable expectation of privacy is diminished as to the open cigarette pack found in his shirt during a routine inventory search. When a container is open, the intrusion is justified to protect the other prisoners from harm. The contents of an unsecured package should be inventoried separately.

In this instance the search was reasonable to assure this protection. The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, MORRISON, GULBRANDSON and HUNT concur.


author: MR. JUSTICE WEBER

text:
    LEWIS E. BRUEGGEMANN, Plaintiff and Appellant, v. CITY OF BILLINGS, Defendant and Respondent. YELLOWSTONE COUNTY BAR ASSOCIATION, Neil S. Keefer, Individually, and as President of the Yellowstone County Bar Association, Plaintiffs and Appellants, v. CITY OF BILLINGS, Defendant and Respondent.
    85-494.
    Submitted April 24, 1986.
    Decided June 4, 1986.
    719 P.2d 768.

      Gerald J. Neely, Billings, for Brueggemann.
    Moses Law Firm, Charles F. Moses, Billings, for Keefer.
    Lewis E. Brueggemann, Billings, pro se.
    K.D. Peterson, Peterson, Schofield & Leckie, Billings, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

In 1982, pursuant to its self-government powers, the City of Billings (Billings) passed ordinance 82-4474 (4474), which imposed an annual tax on all persons and entities doing business within Billings. Mr. Brueggemann and the Yellowstone County Bar Association (Bar) challenged the constitutionality of the ordinance. After cross motions for summary judgment, the Yellowstone County District Court granted Billings’ motion, but, in doing so, first severed offending sections then affirmed the ordinance. Mr. Brueggemann and the Bar appeal. We reverse.

We restate the issues:

1. Did the District Court err in finding ordinance 4474 a valid and constitutionally permissible tax?

2. Did the District Court err in awarding Messrs. Brueggemann and Neely attorney fees?

Ordinance 4474 evolved from two previous ordinances. In June 1982, Billings enacted ordinance 82-4445 (4445), which required all businesses to be licensed in order to carry on business. The cost of the license was based on a business’ gross revenue. In July 1982, Mr. Brueggemann brought an action to test the validity of ordinance 4445. In August 1982, the Bar brought an action to test the validity of the same ordinance. Later, the cases were consolidated. In September 1982, ordinance 4445 was amended by ordinance 82-4463 (4463). In November 1982, ordinance 4463 was repealed and 4474 was adopted.

In October 1983, the Court decreed ordinance 4445 unconstitutional insofar as it attempted to license attorneys. At the same time, the District Court temporarily restrained enforcement of ordinances 4463 and 4474 pending outcome of Harlen v. City of Helena (Mont. 1984), [208 Mont. 45,] 676 P.2d 191, 41 St.Rep. 162.

Following Harlen, which held a Helena business license tax unconstitutional because it infringed on this Court’s constitutional authority to supervise and regulate attorneys and the practice of law, all parties moved for summary judgment. The District Court held ordinance 4474 constitutional, but, in doing so, severed provisions of the ordinance contrary to Harlen. As severed, ordinance 4474 subjects every lawyer or law firm carrying on the practice of law to an annual tax. The basic annual tax is calculated on a business’ gross revenue.

I

Did the District Court err in finding ordinance 4474 a valid and constitutionally permissible tax?

At the outset, we note that attorneys are the only businesspeople properly before the Court, although similar arguments may be made by other business people. Mr. Brueggemann originally filed suit “on his own behalf and on behalf of all other persons similarly situated, that is, all other attorneys at law practicing within the exterior boundaries of the City of Billings.” The Bar is an incorporated association composed of attorneys practicing law within the City of Billings.

Plaintiffs contend that the tax constitutes a sales tax, which is beyond the scope of self-government power and violates Section 7-1-112, MCA, that states in pertinent part:

“7-1-112. Power requiring delegation. A local government with self-government powers is prohibited the exercise of the following powers unless the power is specifically delegated by law:
“(1) the power to authorize a tax on income or the sale of goods or services, except that this section shall not be construed to limit the authority of a local government to levy any other tax or establish the rate of any other tax . . .”

In Montana Innkeepers Ass’n v. City of Billings (Mont. 1983), [206 Mont. 425,] 671 P.2d 21, 23, 40 St.Rep. 1753, 1756, the Court held that a tax on the sale of temporary lodging by a hotel or motel is a sales tax prohibited by Section 7-1-112(1), MCA, stating:

“Hotels and motels sell a product or service which is temporary lodging. The occupant is the consumer since he purchases the service. No title changes hands, but the consumer comes into temporary possession of the room. A tax placed on that transaction is a sales tax.”

As severed, ordinance 4474 imposes a tax on the gross revenues generated from attorney-client relationships. The ordinance is not related to any regulatory control measure for the health or welfare of the City of Billings. We conclude ordinance 4474 is a tax on the sale of attorneys’ services. We hold ordinance 4474 is prohibited by Section 7-1-112(1), MCA.

II

Did the District Court err in awarding Messrs. Brueggemann and Neely attorney fees?

The District Court concluded that Messrs. Brueggemann and Neely were entitled to reasonable attorney fees, arising out of the suit to have city ordinance 4445 declared unconstitutional. The District Court denied attorney fees for the suit relating to ordinance 4474.

Messrs. Brueggemann and Neely contend they are entitled to attorney fees for both suits. They maintain attorney fees could be awarded under Sections 25-10-101, 25-10-201, 25-10-711, MCA; or under the equity power of the District Court; or because they served the role of a private attorney general.

Section 25-10-101, MCA, allows a plaintiff to recover costs in certain types of cases, one of which is an action involving the legality of any tax. Section 25-10-201, MCA, lists which costs may be reimbursed. “Attorney fees are not included in the list of recoverable costs.” Masonovich v. School Dist. No. 1 (1978), 178 Mont. 138, 140, 582 P.2d 1234, 1235.

Section 25-10-711, MCA, allows reasonable attorney fees against a governmental entity when suit or defense is frivolous or pursued in bad faith. We find the defense of the ordinance was neither frivolous nor pursued in bad faith.

Individual attorneys cite State ex rel. Wilson v. Dept. of Natural Resources (1982), 199 Mont. 189, 648 P.2d 766, 39 St.Rep. 1294, for the proposition that a District Court can award attorney fees under its general equity powers. While a District Court may award attorney fees under its equity powers, such an award of attorney fees must be documented in the record. We will not uphold an award of attorney fees on appeal on the theory that the award stems from the equity powers of the District Court where the record provides no language that indicates the award is based on equitable principles. Here, the record does not support an award of attorney fees.

Finally, Messrs. Brueggemann and Neely maintain they served the role of a private attorney general, which benefited a common number of persons. Because the only individuals properly before this Court are attorneys and a large number of attorneys were represented by the Bar, we find this contention without merit. We hold the District Court erred in awarding attorney fees.

We reverse the award of attorney fees by the District Court and hold that ordinance 4474 is invalid as to attorneys under Section 7-1-112(1), MCA.

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


text:
    DELBERT E. HOSTETTER, Plaintiff and Respondent, v. BEN DONLAN, Defendant and Appellant.
    No. 85-535.
    Submitted on Briefs March 6, 1986.
    Decided June 4, 1986.
    719 P.2d 1243.
    J. David Penwell, Bozeman, for defendant and appellant.
    McKinley Anderson, Bozeman, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Donlan appeals the judgment of the District Court, Eighteenth Judicial District, Gallatin County ordering that he pay damages resulting from his termination of a contract he had entered with plaintiff and respondent

Appellant presents these issues for review:

1. Did the District Court err in finding that appellant breached the contract?

2. Did the District Court err by allowing the plaintiff to recover under both theories of contract and restitution?

3. Did the District Court err in allowing respondent to recover lost profits?

4. Did the District Court err in computing the amount of set off appellant was due on his counterclaim?

We find no error and affirm the judgment of the District Court.

On July 15, 1981 the parties contracted for Hostetter to build for Donlan a loafing barn for Donlan’s dairy cattle. A few days earlier Hostetter had also entered a contract with Donlan’s son-in-law for the construction of a home on property given by Donlan to his son-in-law. In early August the parties agreed Hostetter should give highest priority to the house construction. From then on, Hostetter worked on the house. During the first week of September a disagreement arose between the parties over the pace of construction. Hostetter ceased work on the projects for eleven days of the first two weeks of September. On September 12 or 13, Donlan visited Hostetter’s home and terminated the contract to build the barn. During the following week Donlan, through his attorney informed Hostetter that the contract to build the house was also terminated. Hostetter conferred with Donlan’s son-in-law and was told to continue work on the house. After failing in efforts to settle the matter, Hostetter brought suit.

As his first issue, Donlan contends there is no finding of the District Court to support the award of damages for breach of contract. It is his position that Hostetter breached and he should be able to recover his costs in completing the barn. However, in paragraph 11 of the court’s Findings of Fact and Conclusions of Law the court stated:

“That on or about (September 12 or 13,) the Defendant terminated the contract between himself and the Plaintiff for construction of the loafing barn . . .”

Donlan argues this does not amount to a finding that he breached the contract. We cannot agree. By terminating the contract Donlan failed to keep up his end of the bargain. And as Justice Holmes has put it, “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it. . .” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 462 (1897).

Secondly, Donlan argues that the District Court awarded damages on both theories of breach of contract and rescission which he argues are mutually exclusive remedies. The District Court awarded damages of: $2,200 as the cost of work performed minus the amount already paid by Donlan; $1,700 for loss of profit on the loafing shed; and $500 for the interest charge Hostetter was forced to pay on money he borrowed as a result of Donlan’s refusal to pay for the construction completed. Initially, we must note that restitution under a theory of rescission can, under some circumstances, be a remedy for breach of contract. See Burnham, Contract Damages in Montana Part II: Reliance and Restitution, 45 M.L.R. 1, 20-36 (1984). However as Hostetter points out, it is clear from the complaint and the judgment in this case that the recovery was in damages for breach of contract. As such they were properly computed.

The proper measure of damages for breach of contract “is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom.” Section 27-1-311, MCA. Damages are recoverable if they are foreseeable at the time of contracting. Zook Bros. Construction Co. v. State (1976), 171 Mont. 64, 73, 556, P.2d 911, 916. Certainly the amount expended by Hostetter in materials was a foreseeable loss. Furthermore loss of profit “where it is shown that such loss is the natural and direct result of the act of the defendant” is a foreseeable consequence of breach. Cruse v. Clawson (1960), 137 Mont. 439, 448, 352 P.2d 989, 994, cited in Zook Bros. (1976), 171 Mont. 64, 76, 556 P.2d 911, 917.

Next, Donlan contends the award of damages for loss of profit is insupportable because of the speculative nature of such damages. Loss of future profit is often speculative. Zook Bros. Construction Co. v. State (1976), 171 Mont. 64, 556 P.2d 911. That is because of the tenuous causal connection between the breach and injury. However where injury caused by the breach is certain, damages for lost profits may be awarded even though the amount of damage is uncertain. Stensvad v. Miners and Merchants Bank of Roundup (Mont. 1982), 196 Mont. 193, 640 P.2d 1303, 1310, 39 St.Rep. 27, 35-36.

“Once liability is shown, that is the certainty that damages are caused by the breach, then loss of profits on a reasonable basis for computation and the best evidence available under the circumstances will support a reasonably close estimate of the loss by a District Court. (Citations omitted.)”

Stensvad (1982), 196 Mont. 193, 640 P.2d 1303, 1310, 39 St.Rep. at 36. In the instant case the District Court concluded that Hostetter lost his profit on the barn because Donlan breached. The court awarded Hostetter 20% of his costs of construction as a reasonable profit, although Hostetter’s own computations would have amounted to nearly 50% of costs. This reasonable award meets the requirements of Stensvad.

Finally, Donlan argues that the court erred in valuing haying performed by Donlan for Hostetter, but for which Hostetter had not paid. Donlan’s testimony valued the haying of five acres, once in 1980, and once in 1981, at $600 per year. Hostetter’s testimony placed a value of $150 per year. Because the contract was oral, the court “split the difference” and awarded $450 per year, or $900 as a set off to Hostetter’s recovery. This “compromise,” as the District Court called it, is well in line with contract principles. “While [formulas] serve as useful guides, the final answer [in determining damages] rests in good sense rather than mechanical application of such formulas.” Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 506, 414 P.2d 918, 922.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER and MORRISON concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PATRICIA MERRITT JOHNSON, Defendant and Appellant.
    No. 85-93.
    Submitted on Briefs Feb. 26, 1986.
    Decided June 5, 1986.
    719 P.2d 771.
    Anthony F. Keast, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, Karen Townsend, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Following a jury verdict convicting Patricia Merritt Johnson of felony theft, the Missoula County District Court sentenced her to five years in prison with four years suspended and ordered her to pay restitution. Johnson appeals raising one issue; i.e., whether she received the effective assistance of counsel. We affirm the conviction.

In 1981 appellant worked for the Montana State Department of Highways as a Gross Vehicle Weight (GVW) enforcement officer. She worked at a highway scales station near Missoula, Montana. Generally, the duties of such an employee are to inspect trucks for vehicle registration and fuel requirements, to weigh and measure vehicles, to determine if a vehicle requires a permit or special license, and to sell such permits and licenses as the vehicles require. These employees are required to deposit the money they collect in the State Treasurer’s account in local banks.

In October 1981 appellant resigned her position with the Department of Highways. The Department has a procedure for “checking out” GVW employees upon their resignation. The employees turn in their uniforms and the remaining permits and licenses which have been issued to them. Following appellant’s resignation, the State discovered that several of the permits issued to appellant were unaccounted for. These permits were not returned to the State after appellant resigned nor was there a record of the deposit of money from their sale. State officials spoke with appellant, who was then living in New Mexico, by phone about the missing permits. The State conducted a further audit of appellant’s work record. This audit showed that other work reports required of appellant were missing. The audit also showed that appellant had sold permits but that there was no record that appellant had deposited the money in the State’s account. The audit concluded that appellant collected $2,082.97 of State revenues which had never been accounted for. The audit further concluded that there was $82.00 worth of unaccounted for permits.

In October 1981 two Highway Department employees spoke with appellant about the missing documents. They both testified at trial that appellant assured them that she had all the missing permits and documents to clear her of suspicion. They both testified that the State never received any of this exculpatory material. Mike McMeekin, a deputy sheriff in Missoula, spoke with appellant in 1981 and testified that she claimed to have documents which would clear up any suspicions of her. McMeekin stated that he was to meet with appellant but that she did not show up or otherwise provide the police with the exculpatory material. Tom Adams, an investigator with the Montana Criminal Investigation Bureau, gave testimony similar to the above comments of McMeekin.

Appellant did not account for the missing funds and permits and, as a result, she was arrested in New Mexico and returned to Montana to face the felony theft charge. She was initially arraigned in Missoula on this charge in October 1982. During a fourteen month prior, appellant signed three waivers of speedy trial and her trial was delayed for some time. Appellant waived the right to a speedy trial apparently hoping her counsel could negotiate an out of court settlement. The State offered a plea bargain which provided that in return for a plea of guilty to felony theft, the State would recommend a two year deferred sentence plus restitution of $2,500. Appellant was unable to raise that amount although she had a year to do so. Finally, appellant decided to assert her innocence and go to trial on the charge.

The District Court held appellant’s trial on September 11 and 12, 1984. Shortly before trial, appellant and her counsel met before the court reporter to discuss the case while on the record. Counsel advised appellant that in her professional opinion it would be best to wait until the conclusion of the State’s case-in-chief before deciding whether appellant would testify in her own defense.

At trial, counsel for appellant initially reserved her opening statement. The State presented its case-in-chief and established the facts surrounding the missing funds and permits. The State could not show what actually happened to the missing items and relied mainly on circumstantial evidence to prove its case. During the trial, the State elicited testimony showing that in 1977 Highway Department officials were unable to account for $147.50 in cash and permits that appellant was responsible for. Appellant’s counsel did not object to this evidence. Following the State’s case-in-chief, appellant and her counsel held another private discussion on the record to make strategic decisions. At that time, appellant’s counsel stated that her professional opinion was that appellant should not take the stand; that appellant had the constitutional right to not take the stand; that it was appellant’s decision whether or not to testify; that appellant did not have plausible answers for some of the questions the county attorney might ask; that, in her opinion, the potential harm in answering the county attorney’s questions outweighed any harm in not testifying; and that she did not see the need to call any witnesses on the appellant’s behalf. The appellant decided of her own volition not to testify. After returning to the courtroom, appellant’s counsel declined to call any witnesses and waived her opening statement.

In her closing argument, defense counsel advanced appellant’s defenses to the theft charge. First, counsel vigorously attacked the accuracy of the State’s audit. Counsel also argued that the State had not proved that appellant had the requisite intent {purposely or knowingly committing the offense) to be convicted of the offense. Counsel pointed out that the State only learned of the missing funds through appellant’s daily reports reporting the sales of permits and collection of money therefrom. Counsel argued that it was inconsistent for appellant to report the sales on the one hand and then misappropriate the money (which had been reported) on the other hand. Lastly, counsel argued that if appellant failed to meet with State officials to clear up the matter, it was only because of miscommunication and the fact that appellant lived so far away in New Mexico.

The jury found appellant guilty of felony theft. After sentencing, this appeal followed. The only issue is whether the conviction must be overturned because ineffective assistance of counsel deprived appellant of a fair trial.

The Sixth Amendment of the United States Constitution and Art. II, Section 24 of the Montana Constitution guarantee the right to counsel to a defendant in Montana. The right to counsel is recognized as a right to the effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v. Bubnash (1961), 139 Mont. 517, 366 P.2d 155. The United States Supreme Court, in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, recently stated what a defendant must show to gain reversal of his conviction where he claims ineffective assistance of counsel.

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

That is the test under the federal constitution. This Court recently adopted the Strickland formula as the test of whether a defendant’s right to counsel under the Montana Constitution has been violated. State v. Elliott (Mont. 1986), [221 Mont. 174,] 717 P.2d 572, 43 St.Rep. 723. We also cited the Strickland test for what constitutes prejudice to a defendant.

“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of a proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 232, 42 St.Rep. 1440, 1444; citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

A defendant must show prejudice to establish a violation of her right to counsel under either the state or federal constitution. We hold that appellant has not shown that her defense was prejudiced by her counsel’s performance. Thus, we further hold that appellant’s state and federal constitutional rights to counsel were not violated. We have no need to address the first prong of the Strickland test, which is whether counsel’s performance was deficient. Such an approach was recommended in Strickland, where the Court stated:

“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

Strickland, 466 U.S. at 697, 104 S.Ct. at 2070.

Appellant alleges a number of errors on the part of her prior counsel. Appellant contends that her prior counsel should have subpoenaed State records and conducted an audit of those records. Appellant does not specify what records should have been audited nor what they would have shown. In any event, an audit of appellant’s State work records was introduced into evidence and it showed that appellant was responsible for over $2,000 of missing funds and permits. We find no prejudice here.

Appellant asserts that her counsel should have contacted various trucking companies to see if those companies issued bad checks to appellant in buying permits from her. This assertion is based completely on speculation that bad checks may have been issued to appellant and that the State would hold her responsible. Such speculation does not show prejudice to appellant’s defense.

Appellant also asserts that her prior counsel should have interviewed prospective defense and State witnesses. She contends that possible defense witnesses were familiar with the bookkeeping procedures of the GVW division. Appellant does not specify how these witnesses could have helped her defense or how the bookkeeping procedure was inaccurate. We will not engage in speculation to find prejudice to appellant.

Appellant contends that her prior counsel failed to properly consult with her but again she does not specify how this prejudiced her defense. In any case, “Lack of communication between defendant and defense counsel is not of itself basis for reversal on grounds of ineffective assistance of counsel.” State v. Long (Mont. 1983), [206 Mont. 40,] 669 P.2d 1068, 1072, 40 St.Rep. 1493, 1497.

Appellant further asserts that her counsel failed to object to possibly inadmissible and prejudicial evidence (the testimony of a prior incident where $147 of State funds in appellant’s control was unaccounted for). Although the court may have sustained an objection to this evidence, we do not find the failure to object to be sufficiently prejudicial to appellant to merit reversal.

“The failure to object to improper evidence, standing alone, is not sufficient grounds to support a claim of inadequate representation . . .” (Citation omitted.)

State v. McElveen (1975), 168 Mont. 500, 507, 544 P.2d 820, 824. Nor is it sufficient in this case in combination with the other alleged errors.

Finally, appellant claims that her prior counsel failed to properly advise appellant of her Fifth Amendment right not to testify. We disagree. Above, we cited part of the discussion which appellant held with her counsel and which was made part of the record. The record shows that counsel advised appellant that appellant did not have to testify, that it was appellant’s decision whether or not to testify, and that in counsel’s opinion appellant should not testify.

In sum, we hold that appellant has not shown sufficient prejudice to her defense by counsel’s performance to gain reversal. Therefore, appellant’s claim of ineffective assistance of counsel must fail. We affirm the conviction.

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


text:
    RICHARD A. SHORS and Ann C. Shors, Plaintiffs and Respondents, v. JERRY L. BRANCH, d/b/a Jerry L. Branch, Consulting Geologist and Producer, Defendant and Appellant.
    No. 85-324.
    Submitted on Briefs March 13, 1986.
    Decided June 5, 1986.
    720 P.2d 239.

      Hash, Jellison, O’Brien & Bartlett, Kenneth O’Brien, Kalispell, for defendant and appellant.
    Peterson, Peterson, Burns & Shors, William L. Burns, Cut Bank, for plaintiffs and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant Mr. Branch appeals a judgment of the District Court for Flathead County. That court granted a total of $52,000 in actual and punitive damages against him, following a bench trial on plaintiffs complaint of defamation and violation of easement rights. We affirm.

Mr. Branch raises fifteen separate issues which we restate as follows:

1. Is plaintiffs’ claim for damages for interference with their easement rights barred by statute of limitation?

2. Did Mr. Branch’s installation and maintenance of the gate on the road extinguish the plaintiffs’ easement rights by adverse possession or establish a prescriptive right to the gate?

3. Did the trial court err in permitting testimony concerning: 1) an incident in which Mrs. Shors and her children were “buzzed” by the Branch children on a snowmobile; and 2) Mr. Branch’s reference to the Shors as “trouble-makers” and “hippies” and his suggestion to third parties that the Shors cabin be burned down?

4. Is there substantial evidence to support the court’s findings that: a) Mr. Branch did not complete construction of the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless disregard for the plaintiffs’ rights in constructing the gate; and c) plaintiffs were entitled to $2,000 for the loss of use of the vehicle access road?

5. Was the communication of the letter to the Flathead County Sheriff’s Office privileged?

6. Was there substantial evidence to support the court’s findings that: a) Mr. Branch was inspired by malice and ill-will when he forwarded the alleged defamatory letter; b) the statements contained in the letter constitute libel or libel per se; and c) the plaintiff Richard Shors was entitled to $5,000 in special and general damages in the defamation action?

7. Did the trial judge have authority to award punitive damages and did he err in setting the amount of punitive damages at $20,000 in the defamation action and $15,000 in the action for interference with the easement?

8. Did the District Court err in admitting plaintiffs’ statement of attorney fees into evidence and in awarding attorney fees?

Mr. Branch also argues that the punitive damages violated the Eighth and Fourteenth Amendments to the United States Constitution. However, he did not raise this argument below and we will not consider it now. Rule 2, M.R.App.Civ.P.; Dodd v. City of East Helena (1979), 180 Mont. 518, 523, 591 P.2d 241, 244.

Jerry Branch and Carl Disel subdivided property near Essex, Montana, in Flathead County. The property borders the Middle Fork of the Flathead River. The Declaration of Restrictions governing those tracts provided for access to the river for the purchasers of the lots as follows:

“. . . This access is a specific route access, via the sixteen foot East-West access road presently in existence along the south boundary of Lots 1, 2, 3, 4 and 5, then east to the top of the hill at the south turn of the existing trail-road. From this curve, an access trail-road will be constructed by the sellers, and will run northeast along the path of most practical construction and will reach the river beach within 150 feet of survey point number seven. Future maintenance of this northeast road will be the responsibility of the lot owners of the subject lands of H.E.S. 867.”

The access trail-road was understood and intended to be suitable for two-wheel-drive vehicles under normal weather conditions. The sub-dividers retained an easement over one of the lots for construction of the access road. In 1972, they had a trail-road constructed over the easement. At the time it was constructed, this road was unobstructed by a gate, fence, or other obstacle, and was passable in normal conditions with a two-wheel drive vehicle.

Mr. Branch also retained a portion of the subdivided land for his own use. Access to the river from his land was achieved by way of a private logging road. A common road led to Mr. Branch’s road and the lot owners’ road. For several years, Mr. Branch kept a cable gate across the road to his land, beyond the turn-off for the lot owners’ access road.

Plaintiffs constructed a cabin on their lot in 1975. At that time, the lot owners’ road had sloughed off and become strewn with rocks and trees so that it was no longer passable with a vehicle. As a result, and in the absence of extensive maintenance, the road to Mr. Branch’s land was the only means of vehicular access to the river for the lot owners.

In about 1976, apparently to prevent continued use of his road by others, Mr. Branch installed a metal, lock-type gate on the road. He installed the gate ahead of the fork in the two roads, thereby effectively preventing plaintiffs and the other lot owners from using either road beyond the gate. Following installation of the metal gate, Mr. Branch discouraged lot owners from attempting to widen and improve their access road. In May 1983, Mr. Branch moved the gate and bulldozed a “cul-de-sac” road to allow for potential lot owner vehicular passage to the river. He left a substantial mound of gravel at the site of the old gate.

Mr. Branch also erected “no trespassing” signs close to the river and on the road. Plaintiffs saw these signs as an additional indication of Mr. Branch’s intention to keep them away from their access road, his property, and the river.

Partly as a result of the above actions, the relationship between the parties deteriorated. On occasion Mr. Branch referred to the Shors as “hippies” and “troublemakers,” and suggested to third parties that plaintiffs’ cabin be burned down. Also, in 1982, Mr. Branch intentionally blocked the trail to plaintiffs’ cabin with logs and other debris.

In July of 1982, Mr. Branch discovered one of his “no trespassing” signs in the river, and erroneously concluded that plaintiff Mr. Shors had torn out that sign and two others. He sent a certified letter to Mr. Shors, and a copy of the letter to the Flathead County Sheriff’s Department. In the letter, he stated that Mr. Shors had been observed tearing down three steel signs at the Branch property. He accused Mr. Shors and his guests of tearing down signs “in a routine manner,” and threatened to file charges against Mr. Shors if the signs were not repaired or replaced. In fact, on the day in question, Mr. Shors and his family were at home in Cut Bank, Montana.

Mr. Shors, an attorney, brought suit against Mr. Branch for interference with his access to the river and for defamation. After a bench trial lasting several days, the court entered extensive findings and conclusions. The court ordered Mr. Branch to pay plaintiffs $2,000 for lost use and enjoyment of the vehicle access road for two years preceding the filing of their complaint; to pay $15,000 in punitive damages for obstruction of the access road; to pay $10,000 in attorney fees incurred in connection with interference with plaintiffs’ access rights under the contract; and to pay court costs. It also awarded plaintiffs $5,000 in special and general damages for defamation and $20,000 in punitive damages for defamation. It further ordered Mr. Branch not to interfere with plaintiffs’ right to reconstruct, repair, and maintain the original lot owners’ road, and enjoined Mr. Branch from obstructing or interfering with plaintiffs in the exercise of their rights under the Declaration of Restrictions and the court’s order.

I

Is plaintiffs’ claim for damages for interference with their easement rights barred by statute of limitation?

Mr. Branch argues that the two-year statute of limitation for interference with real property expired two years after the metal gate was constructed, or in 1978. This action was not brought until 1982. Mr. Branch argues that it is therefore barred by the statute of limitation.

The District Court concluded that: “The Defendant has unlawfully and unreasonably restricted Plaintiffs’ right of access, in derogation of the Declaration of Restrictions, thereby diminishing the value of their property, and their use and enjoyment thereof. Specifically, he failed to construct a proper or reasonably permanent access road, suitable for vehicular use, and prohibited Plaintiffs’ and other lot-owners’ free access thereto by any means in 1976 and thereafter until the filing of Plaintiffs’ Amended Complaint . . .” The conclusion that Mr. Branch interfered with plaintiffs’ easement right is based on both his failure to construct a proper or reasonably permanent access road and his interference with plaintiffs’ and the other lot owners’ access to the river. The failure to construct a proper access road sounds in contract, with an 8 year statute of limitation under Section 27-2-202, MCA.

As to Mr. Branch’s interference with access to the river, this Court has recognized as continuing torts those torts in which the tortious act can be readily abated. Haugen Trust v. Warner (Mont. 1983), [204 Mont. 508,] 665 P.2d 1132, 1135, 40 St.Rep. 1036, 1039. In a continuing tort, recovery may be had for damages accruing within the statutory period preceding commencement of the action. Haugen, 665 P.2d at 1135. We conclude that blockage of plaintiffs’ access to the river by the gate was a continuing tort, because it was easily abated. The gate was, in fact, moved prior to trial. We hold, therefore, that the statute of limitation does not bar this action, and that damages accruing within 2 years of initiation of the suit were recoverable.

II

Did Mr. Branch’s installation and maintenance of the gate on the road extinguish the plaintiffs’ easement rights by adverse possession or establish a prescriptive right to the gate?

Neither of these theories were set forth in the pleadings or in the pretrial order. They were raised by motion to amend the pleadings at the close of trial. The trial court did not make specific findings as to either theory, apparently concluding that neither had been sufficiently proven.

Both adverse possession and prescriptive easement require proof of open, notorious, exclusive, adverse, and continuous possession or use for the statutory period of five years. The evidence is insufficient on several of these elements. Mr. Branch did not consistently testify that he intended to keep plaintiffs from all access to their easement. He stated at one point that he would have given the lot owners keys to the gate, if they had wished to improve their access road, and testified that access on foot, snowmobile, or motorcycle could be achieved by going around the gate. During the entire time involved here, the Declaration of Restrictions remained on file with the Clerk and Recorder, publicly stating the right to the easement. Sometimes Mr. Branch’s gate was left open. He did not affirmatively convey to the lot owners at any date certain his intention that they not go beyond the gate. Mr. Branch did not place his “no trespassing” signs near the gate until about 1980 or 1981. We conclude that there was insufficient proof of extinguishment of the easement rights by adverse possession or of a prescriptive right to the gate.

Ill

Did the trial court err in permitting testimony concerning: 1) an incident in which Mrs. Shors and her children were “buzzed” by the Branch children on a snowmobile; and 2) Mr. Branch’s reference to the Shors as “trouble-makers” and “hippies” and his suggestion to third parties that the Shors cabin be burned down?

Mr. Branch objects to the admission of the above testimony on the basis of relevance. Rule 401, M.R.Evid. provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” We hold that the action of the Branch children in “buzzing” the Shors on snowmobiles is irrelevant to the issue of malice on the part of Mr. Branch, but that the testimony’s admission into evidence was harmless, given the other independent evidence of malice. We hold that the statements by Mr. Branch were relevant as they relate to Mr. Branch’s malice toward plaintiffs.

IV

Is there substantial evidence to support the court’s findings that: a) Mr. Branch did not complete construction of the access road as required by the Declaration of Restrictions; b) Mr. Branch acted maliciously and with a reckless disregard for the plaintiffs’ rights in constructing the gate; and c) plaintiffs were entitled to $2,000 for the loss of use of the vehicle access road?

Mr. Branch argues that these three do not have support in the record. Our standard of review is whether substantial evidence exists to support the findings and conclusions of the District Court.

Testimony by several parties, including Mr. Branch, that the lot owners’ access road began sloughing off almost immediately supports the District Court’s conclusion that no proper or reasonably permanent access road was constructed. There was testimony that only a few of the lots had been sold at the time the access road was constructed. Only a few lot owners had access to a usable road, and only for the short time until the road eroded. The fact that Mr. Branch built a locked gate in front of the turnoff to the lot owners’ access road supports a conclusion of reckless disregard for plaintiffs’ rights. Additionally, we defer to the trial court’s opportunity to judge the demeanor of the witnesses, including defendant. We conclude that there was substantial evidence to support the findings that no proper or reasonably permanent access road was constructed and that Mr. Branch acted with malice or a reckless disregard for plaintiffs’ rights in constructing the gate.

The award of $2,000 in damages for loss of access to the river is supported by plaintiffs’ testimony that they purchased their lot partially because it was represented as having access to the river, and that their use of their cabin and access to the river was curtailed as a result of Mr. Branch’s actions. We conclude that the award of $2,000 was within the court’s discretion.

V

Was the communication of the letter to the Flathead County Sheriff’s Office privileged?

Mr. Branch argues that under Section 27-1-804(1), MCA, his letter was absolutely privileged as a publication made “in the proper discharge of an official duty,” because citizens have an obligation to communicate their knowledge of the commission of crimes to law enforcement officials. The statute he cites does not extend to this unsolicited complaint by a private citizen. Any duty Mr. Branch had to report the destruction of his “no trespassing” signs was a civic duty, not an official duty. We hold that the letter was not a privileged communication.

VI

Was there substantial evidence to support the court’s findings that: a) Mr. Branch was inspired by malice and ill-will when he forwarded the alleged defamatory letter; b) the statements contained in the letter constitute libel or libel per se; and c) the plaintiff Richard Shors was entitled to $5,000 in special and general damages in the defamation action?

At trial, Mr. Branch testified that he was “only 80% sure” that he had identified Mr. Shors on the opposite bank of the river, at the time he discovered the pulled up signs. Yet he mailed a letter to the sheriff’s office, in which he stated that “our signs have been consistently torn down over the past years by [Mr. Shors] and [his] guests in [the Shors] nearby cabin in a routine manner,” and threatened to file “appropriate” charges and prosecute “to the fullest extent” if replacement or repair of the signs was not arranged. His characterizations of the Shors as “hippies” and “troublemakers” and his suggestion that their cabin be burned down also occurred prior to this time. We conclude that there was substantial evidence to support the court’s conclusion that the letter was mailed with malice.

In Montana, libel is defined as:

“. . . a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.’*

Section 27-1-802, MCA. Judge McPhillips testified that Mr. Shors’ professional reputation was jeopardized by Mr. Branch’s statements in the letter. Mr. Branch testified in his deposition that the damaged signs were worth over $150; therefore, he had accused Mr. Shors of a felony. We conclude that the District Court’s finding that the statements in the letter constituted libel has substantial support in the evidence.

The testimony of both Mr. and Mrs. Shors as to the mental anguish, worry, and loss of worktime caused to Mr. Shors by Mr. Branch’s letter supports the award of damages. Mental anguish and suffering are actual harm, and determination of the amount of damages is within the fact-finder’s discretion. Gallagher v. Johnson (1980), 188 Mont. 117, 611 P.2d 613, 617, 37 St.Rep. 940, 945. We hold that there was substantial support in the record for the court’s award of $5,000 in actual damages on the libel issue.

VII

Did the trial judge have authority to award punitive damages, and did he err in setting the amount of punitive damages at $20,000 in the defamation action and $15,000 in the action for interference with the easement?

Mr. Branch argues that under Section 27-1-221, MCA, only a jury may award punitive damages. We have upheld the award of punitive damages by a district court sitting as the trier of fact. The statute has been construed to mean the trier of fact may award punitive damages. Miller v. Fox (1977), 174 Mont. 504, 510, 571 P.2d 804, 808.

Mr. Branch also maintains that the punitive damages awarded are disproportionate to the harm done and to his wealth. This court has rejected mathematical ratios for determining punitive damages. Butcher v. Petranek (1979), 181 Mont. 358, 364, 593 P.2d 743, 746. We will not disturb the award of punitive damages, because we conclude that the amount awarded is within the trial court’s discretion.

VIII

Did the District Court err in admitting plaintiffs’ statement of attorney fees into evidence and in awarding attorney fees?

Mr. Branch objects to the admission into evidence of the statement of Mr. Shors’ attorney fees, alleging that an insufficient foundation was laid. He also argues that a pro se attorney is not entitled to attorney fees, that plaintiff was not the prevailing party, and that there was no clear allocation of fees between the defamation issue and the easement issue.

Mr. Shors testified to the truth and accuracy of his detailed written statement of hourly charges for legal services. He also testified to the reasonableness of his $60 hourly fee in this matter, as did Judge McPhillips, and to the reasonableness of the fees of his co-counsel, Mr. Epstein. Mr. Branch has cited nothing which would require additional foundation, and we conclude that sufficient foundation was laid to show that the fees claimed were reasonable.

This Court has held that a pro se attorney is entitled to be paid for his legal services, in a case in which award of attorney fees is proper. Winer v. Jonal Corp. (1976), 169 Mont. 247, 545 P.2d 1094.

Paragraph 7 of the Declaration of Restrictions provides that costs of suit may be awarded against a person “found guilty of a breach of the provisions of this declaration.” The trial court’s conclusion #2 that “[t]he Defendant has unlawfully and unreasonably restricted Plaintiff’s right of access, in derogation of the Declaration of Restrictions,” means that the plaintiffs were entitled to their attorney fees under the contract and were the prevailing party in the contract action. They also prevailed in the defamation action. Mr. Branch’s position that plaintiffs did not prevail because he was not ordered to build them a new road is unfounded. We conclude that plaintiffs were properly awarded attorney fees.

Plaintiffs submitted an itemized statement of pretrial attorney fees of over $13,000. Additionally, two attorneys represented plaintiffs over three days of trial. Mr. Shors testified that over half the fees both before and during trial were attributable to the easement issue. This Court will not disturb an amount set as reasonable attorney fees absent abuse of discretion. Talmage v. Gruss (1983), 202 Mont. 410, 658 P.2d 419, 420, 40 St.Rep. 176, 177. We conclude that the court did not abuse its discretion in determining that $10,000 in attorney fees were “reasonably and necessarily incurred” by plaintiffs in litigating their easement claim.

MR. JUSTICES HUNT, MORRISON, HARRISON and GULBRANDSON concur.