author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FLOYD LENARD SPURLOCK, Defendant and Appellant.
    No. 86-375.
    Submitted Jan. 13, 1987.
    Decided Feb. 3, 1987.
    731 P.2d 1315.
    Moses Law Firm, Stephen C. Moses and Charles F. Moses argued, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, James M. Scheier, Asst. Atty. Gen., Helena, Susan Loehn argued, Co. Atty., Libby, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Floyd Lenard Spurlock, defendant and appellant, was charged by information filed in the District Court of the Nineteenth Judicial District, Lincoln County, with the offense of deliberate homicide for the killing of Ron Meyer. On a plea of not guilty, trial commenced on June 5,1986. Following deliberations, the jury returned a verdict of guilty. Spurlock was sentenced to sixty-five years’ imprisonment, with an additional five years imposed for use of a dangerous weapon. Spurlock appeals both the verdict and the sentence.

Spurlock and three friends entered the Eagles Club Bar in Libby, Montana, at about 10:00 p.m. on December 13, 1985. They danced with several women who were there. Later, Spurlock got into an argument with some of the women they were dancing with and called them derogatory names. One of the women, Monica Obermeyer, pushed him into a chair. Three bouncers rushed to the area to prevent any further fighting. At some point soon after this, Spurlock was seen by several people in the bar with a knife in his hand. He also began making threatening remarks to the effect of: “If my buddies and I do not get out of here, I will start slicing people up.”

Spurlock was asked to leave, and he complied. However, on the way out, he got into an argument with Ron Meyer. Spurlock hit Meyer, and Meyer fell. Spurlock then ran out of the bar. He was seen wiping something off and putting it into his pocket. Meyer was taken to a back room of the bar. It was discovered that he had been stabbed, and he could not be revived. It was determined later that he was killed by a sharp instrument which pierced the breast bone and penetrated his heart.

Sheriff’s deputies arrived at the Eagles Club at about 10:50 p.m. Spurlock’s friends were taken into custody, but Spurlock was no longer there. He had gone to the Caboose Bar, only a short distance away, and then went home.

Officers arrested Spurlock at his home later that same night. Upon searching the residence, they found a pair of jeans in the bottom of his clothes hamper. They were wet and contained his wallet in a rear pocket. The right front pocket of the jeans was stained with blood. A white T-shirt belonging to Spurlock was also found, and it was stained with blood. The homicide weapon was never found.

Spurlock denied any involvement in the stabbing and denied having a pocket knife; however, one of his friends testified that he had seen Spurlock with a pocket knife on the day of the stabbing. Dr. Black examined Spurlock after he was arrested. He found abrasions on the knuckles of Spurlock’s right hand which indicated that Spur-lock had hit something with his fist. He also had a cut on the middle finger of his left hand.

Appellant raises two issues on appeal:

1. Is the verdict supported by substantial credible evidence?

2. Was appellant properly sentenced?

I

Appellant contends that the verdict is based solely on circumstantial evidence. Thus, the State is required to prove beyond a reasonable doubt that the circumstances are consistent with defendant’s guilt and inconsistent with his innocence and are incapable of explanation on any other reasonable hypothesis than that of guilt. Appellant argues that since there are other explanations for the stabbing which are just as consistent with appellant’s innocence as with his guilt, the State failed to meet its burden of proof. He also contends that there was insufficient evidence to support the verdict.

We are at a loss to understand how appellant can argue that this case is one of circumstantial evidence. The amount of direct evidence presented was overwhelming.

Sometime after appellant was pushed in the bar and immediately prior to the time that Meyer was stabbed, no less than seven witnesses saw appellant with a knife in his right hand. Two of those witnesses were standing right next to appellant when they saw the knife in his hand. At the same time, many witnesses heard appellant making threats that someone was going to get hurt. Three witnesses testified to seeing appellant hit Meyer. Other witnesses testified that they saw Meyer and appellant make contact. Immediately after being hit by appellant, Meyer fell to the floor. Appellant then ran out of the bar, and one witness testified to seeing him wipe something off and put it into his pocket.

Officers arrested appellant on the night of the murder. They found the jeans and T-shirt he had been wearing that night. A forensic serologist performed tests on those items and testified to her findings at trial. She testified that there were blood stains on the right front pocket of the jeans and also on the T-shirt. The blood on the jeans could have come from either appellant or Meyer.

The standard of review on questions of sufficiency of the evidence to support a verdict was recently set forth in State v. Cornell (Mont. 1986), [220 Mont. 433,] 715 P.2d 446, 447, 43 St.Rep. 505, 506:

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

From all the evidence presented, a reasonable trier of fact could have concluded that appellant was guilty of the deliberate homicide of Meyer.

II

Appellant next contends that he was improperly sentenced. He argues that the five years enhancement that was imposed for the use of a dangerous weapon was error and constituted a double sentencing.

This argument is completely without merit. Section 46-18-221, MCA, provides for enhancement of sentence when a defendant has used a dangerous weapon in the commission of any offense. This statute does not define a separate offense, but is merely an enhancing statute. Indeed, it cannot be applied except to enhance the main offense. Consequently, its use does not result in multiple sentencing for a single criminal offense. See State v. Davison (1980), 188 Mont. 432, 614 P.2d 489.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    In re the MARRIAGE OF MURIEL GLEE HUNDTOFT, Petitioner and Appellant, and PALMER LEROY HUNDTOFT, Respondent and Respondent.
    No. 86-398.
    Submitted on Briefs Dec. 11, 1986.
    Decided Feb. 3, 1987.
    732 P.2d 401.

      Mary E. Westwood, Billings, for petitioner and appellant.
    Jock West, Billings, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a marriage dissolution order entered by the District Court of the Thirteenth Judicial District, in and for Yellowstone County. Wife challenges several aspects of the court’s distribution of the marital estate. We affirm.

Muriel and Palmer Hundtoft were married in December 1977. Their marriage lasted a little over seven years until December 1984, when Muriel (Wife) filed a petition for the dissolution of their marriage. Following a bench trial, the District Court formally dissolved the marriage in April 1986.

Wife now challenges the distribution of property entered by the District Court. The principal assets in dispute are items of real property contained within the marital estate. The parties themselves largely apportioned their personal property and do not now contest that division.

Specifically, Wife asserts that the District Court erred in its property distribution by failing to properly consider those statutorily mandated factors listed in Section 40-4-202, MCA. We do not agree.

At the outset, we yet again repeat that this Court’s function on appeal is extremely limited. Section 40-4-202, MCA, is of necessity a flexible statute which vests a good deal of discretion in the district court. Given the infinite varieties of factual situations presented by parties to dissolution proceedings, trial judges must enjoy the latitude to address each case individually, with an eye to its unique circumstances. Wallace v. Wallace (Mont. 1983), 203 Mont. 255, 661 P.2d 455, 458, 40 St.Rep. 430, 434.

Upon appeal, this Court’s functions are as limited as a district court’s powers are broad. Sitting as a court of error, we will reverse a lower court’s pronouncement only upon a clear abuse of discretion. Under the test we have developed for review of marital estate property distributions, appellant is required to show that the district court acted arbitrarily, without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re the Marriage of Perry (Mont. 1985), [217 Mont. 162,] 704 P.2d 41, 43, 42 St.Rep. 1101, 1104; In re the Marriage of Rolfe (Mont. 1985), [216 mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 626; In re the Marriage of Vert (Mont. 1984), [210 Mont. 24,] 680 P.2d 587, 588, 41 St.Rep. 895, 896. Applying this standard, we cannot say that the District’ Court abused its discretion.

Appellant first challenges the District Court’s failure to render specific findings of those factors listed in Section 40-4-202, MCA. While articulation of these factors is encouraged, the absence of specific findings does not automatically warrant remand:

“It is not the lack of specific findings which constitutes reversible error, but the lack of substantial evidence to support the judgment. We look both to the District Court’s express reasoning and the evidence in the record to determine whether ample evidence exists.” In re the Marriage of Peterson (Mont. 1984), [211 Mont. 118,] 683 P.2d 1304, 1307, 41 St.Rep. 1252, 1256 (quoting Frazier v. Frazier (Mont. 1984), [208 Mont. 150,] 676 P.2d 217, 219-20, 41 St.Rep. 233, 236).

Our reading of both the record and the court’s reasoning persuades us that the court’s actions were supported by sufficient evidence.

For example, appellant contests the court’s award to Palmer (Husband) of “all the equity” in the parties’ jointly owned real property acquired during the marriage. Basically, this property in question consists of two residences, a house in Harlowton, and a Billings condominium. The court awarded the house in Harlowton to Husband, provided that he pay Wife $3,000 — one-half the value of the house. Wife received half the equity of this house. As to the condominium in Billings, the court found that the Husband had adequately proven that the funds used as a downpayment could be traced directly to liquidation of one of his pre-marital assets. This finding is supported by the record. The court did not abuse its discretion in its distribution of these properties.

Appellant also claims that the court failed to consider fully the Wife’s non-monetary contributions to the family unit. While no children were born of the marriage, each party had children from a previous marriage. However, both parties worked, and from the testimony of the parties it is clear that each shouldered this burden. The record simply does not contain sufficient evidence on this point to find abuse of discretion.

We further are not persuaded by appellant’s assertion that the court failed to consider her age, health, future employability and lack of income producing assets. The court noted that appellant was regularly employed as a restaurant manager, the same type of job she has held more or less continuously since before this marriage. Further, the court awarded Wife two of her pre-marital, income producing assets, a contract for deed receivable arising from the sale of her previously owned cafe and the net equity in two rental mobile home lots.

In short, appellant has failed to show how the District Court exceeded the bounds of reason or failed to employ conscientious judgment. It matters not how this Court would decide were it the court of first impression. All that is in question is whether the lower court committed clear abuse of discretion. We find that it did not.

Affirmed.

MR. JUSTICES WEBER, HUNT, SHEEHY and GULBRANDSON concur.


text:
    LOYD FOSTER and Jim Geoddertz, d/b/a L & L Telephone, Petitioners and Respondents, v. COMMISSIONER OF LABOR AND INDUSTRY, State of Montana, ex rel., KELLY McSHANE, Respondents and Appellants.
    No. 86-415.
    Submitted Nov. 25, 1986.
    Decided Feb. 3, 1987.
    731 P.2d 1313.

      James W. Zion, Dept, of Labor & Industry, Helena, for respondents and appellants.
    Warden, Christiansen, Johnson & Berg; Kent P. Saxby, Kalispell, for petitioners and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eleventh Judicial District in and for Flathead County, Montana. The court vacated an order of the Commissioner of Labor and Industry granting Kelly McShane certain claimed back wages. We affirm.

Respondents opened a new business, L & L Telephone, in Kalispell, Montana, in January, 1983, to repair, sell and install telephone systems. Appellant (McShane) inquired about the possibility of working for the new company and was advised that periodically a limited amount of telephone repair work might be available for him. There was no representation made as to the amount of work which might be available, and it was agreed McShane would be paid on a piece-rate basis for each piece of repair work actually completed. He was free to accept or reject any work offered to him for repair. McShane was free to perform repairs at a location away from L & L Telephone and free to use his own tools and method of repair. He was not required to be at respondents’ place of business during any specific hours.

In April respondents agreed to hire McShane and another repairman for a fixed number of hours every two week period. They received a fixed salary each period and signed a W-4 form. Respondents argue it was not until April that an employer/employee relationship was established. We agree.

In October, 1984, McShane filed a wage claim with the Commissioner of Labor and Industry for back wages he claimed were owed him by respondents for the period between January and April, 1983. Following an administrative hearing, the hearing examiner ordered respondents to pay McShane $2,304 in unpaid wages and penalty. Respondents appealed to the District Court which dismissed the claim and ordered that McShane take nothing by way of his wage claim. The Commissioner of Labor and Industry appeals.

Appellant argues the District Court erred by not applying the proper standard when reviewing the administrative order, and by applying the wrong law to the facts.

The standard of review is set forth in Section 2-4-704, MCA, which reads in pertinent part:

“(1) • • •
“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;”

This statute is exceedingly clear and we have consistently reaffirmed its meaning. See Chagnon v. Hardy Construction Co. (Mont. 1984), [208 Mont. 420,] 680 P.2d 932, 41 St.Rep. 441; State ex rel. Montana Wilderness Association v. Board of Natural Resources and Conservation (Mont. 1982), [200 Mont. 11,] 648 P.2d 734, 39 St.Rep. 1238; Martinez v. Yellowstone County Welfare Dept. (Mont. 1981), 626 P.2d 242, 38 St.Rep. 474; Northern Plains Resource Council v. Board of Natural Resources and Conservation (1979), 181 Mont. 500, 594 P.2d 297.

The hearing examiner determined that McShane was an employee of L & L Telephone. The District Court reversed, applying the clearly erroneous standard because the court found the hearing examiner’s findings were not supported by reliable, probative and substantial evidence on the record. We are confronted with the task of determining whether the District Court abused its discretion.

Both employee and independent contractor are statutorily defined. Section 39-71-118(1) (a), MCA, defines employee as “each person in this state, including a contractor other than an independent contractor, who is in the service of an employer, as defined by 39-71-117 . . . “ (L & L Telephone meets the statutory requirement of Section 39-71-117, MCA.) An independent contractor “is one who renders service in the course of an occupation and: (1) has been and will continue to be free from control or direction over the performance of the services, both under his contract and in fact; and (2) is engaged in an independently established trade, occupation, profession, or business.” Section 39-71-120, MCA.

Respondents argue the District Court applied the wrong law to determine whether McShane was an employee. They contend the so-called ABC test should have been used, citing Section 39-51-203(4), MCA, and various decisions of this Court. The ABC test is not applicable in this case, however. It is used when determining whether a worker is an employee for purposes of imposition of unemployment compensation tax on the employer. “The test to determine whether or not an employer/employee relationship exists within the meaning of [Section 39-71-118, MCA] is the so-called control test.” State ex rel. Ferguson v. District Court (1974), 164 Mont. 84, 88, 519 P.2d 151, 153.

“The vital test in determining whether a person employed to do a certain piece of work is a contractor or a mere servant, is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer he is a servant; if not under such control, he is an independent contractor. (Citation omitted.)
“One who contracts to do a certain piece of work according to his own methods and without subjection to the control of his employer, is, while so engaged, an independent contractor. (Citations omitted.)
“As to control, it is necessarily implied in every contract that the employer may insist that the contract shall be performed according to its specifications. (Citation omitted.)”

Shope v. City of Billings (1929), 85 Mont. 302, 307-308, 278 P. 826, 827.

The issue of control goes beyond actual control and focuses on the right to control. We have set out four factors to be considered when analyzing the right to control: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; (4) right to fire. Sharp v. Hoerner Waldorf Corporation (1978), 178 Mont. 419, 425, 584 P.2d 1298, 1301. McShane was told by respondents that periodically a limited amount of telephone repair work might be available for him. No representation was made as to the amount of work. McShane and respondents agreed McShane would be paid on a piece-rate basis, which was 100% of what was paid respondents. McShane was free to accept or reject any and all work. He was not required to do his work at any certain time or in any certain place. Respondents did not provide McShane with tools. Clearly respondents did not control or have the right to control McShane.

The hearing examiner found it to be “abundantly clear that respondent intended for McShane to be an independent contractor prior to April 1 . . . “ However, the hearing examiner’s conclusion that McShane was an employee of L & L Telephone between January 10 and March 25, and thus entitled to back wages for that period is not supported by the record, and is contradicted by other findings. It is clearly erroneous and must be set aside. Rule 52(a), M.R.Civ.P.

McShane was “free from control or direction” when repairing telephones. The District Court’s conclusion that by law “[t]he respondent McShane was an independent contractor at all times prior to March 31, 1983,” is supported by the record. We do not find the District Court abused its discretion in reaching this conclusion and therefore, we affirm.

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


author: MR. JUSTICE GULBRANDSON

text:
    PAUL and BERNICE M. WILHELM, Plaintiffs and Appellants, v. CITY OF GREAT FALLS, Defendant and Respondent.
    No. 85-417.
    Submitted on Briefs July 24, 1986.
    Decided Feb. 4, 1987.
    Rehearing Denied March 19, 1987.
    732 P.2d 1315.

      Cannon & Sheehy, Helena, for plaintiffs and appellants.
    James, Gray, McCafferty, Robert F. James, Great Falls, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Paul and Bernice Wilhelm, plaintiffs below, appeal a Cascade County jury verdict, and the judgment entered thereon, finding that the defendant City of Great Falls (the City) was not negligent in this nuisance action. The issues on appeal are:

(1) whether the District Court erred in reversing its grant of partial summary judgment in appellants’ favor;

(2) whether the District Court erred in denying appellants’ motion for a directed verdict on the issue of comparative negligence;

(3) whether the District Court properly instructed the jury;

(4) whether substantial evidence supports the jury’s verdict;

(5) whether the District Court erred in denying appellants’ motion for new trial. We affirm.

We take the following summary of facts from Wilhelm v. City of Great Falls (Mont. 1984), [211 Mont. 430,] 685 P.2d 350, 41 St.Rep. 1471; a previous appeal in this case.

“[T]he City of Great Falls has operated a city dump continuously in the same location since the 1950’s. Before 1969, [the City] openly burned garbage at the dump site. In 1973, [Wilhelms] purchased property located on the Missouri River about one mile east of the dump site. [Wilhelms] then spent about $125,000 to build a home on the property. They visited the property a few times prior to the purchase.

“(Wilhelms) acknowledged, at the time of the purchase, that they were aware the City operated the dump about one mile from their property. At the time of the purchase the City operated a garbage shredder that apparently reduced blowing litter problems.

“In 1977 the City employees operating the dump went on strike. During the strike, someone set fire to the dump. This fire burned a considerable portion of the dump and created great amounts of smoke and stench. The fire triggered many subterranean fires that continued to burn for the following two years. [Wilhelms’] home . . . suffered damages due to smoke.

“Following the strike, the City quit operating the garbage shredder. Litter began to blow onto [Wilhelms’] property. For the two years the subterranean fires burned, the City tried many methods to control the fires. The City finally extinguished the fires by digging up the debris and hosing it down.

“(Wilhelms) presented evidence that in 1981 their well water became contaminated. They contended in the spring the run-off of water from the dump caused contamination to the groundwater on their property . . .

“[Wilhelms] also presented evidence that the City deposited sewage sludqe at the dump site. [Wilhelms] complained of times when the City failed to cover the sludge, thereby creating a stench.”

In August 1979, the appellants filed a complaint alleging that they had suffered substantial damages as a result of the improper operation of the dump. Appellants complained mainly about smoke damage and blowing litter.

In January 1980, the Cascade County District Court granted appellants’ motion for summary judgment on the issue of the defendant’s liability. In May 1981, the court reversed its order granting partial summary judgment and ordered that the case proceed to trial on the issues of liability and damages. In May 1983, following a jury trial, the jury returned a verdict finding appellants 90% negligent and the City 10% negligent. The District Court ordered a new trial finding that the facts failed to support the verdict and that the verdict was contrary to law. The City appealed and in Wilhelm I we found that the District Court did not abuse its discretion in ordering a new trial and that the evidence did not support the jury verdict that appellants were 90% negligent.

The District Court scheduled a new trial for February 1985. The parties filed a pre-trial order which superseded all pleadings previously filed. In that order, appellants claimed they suffered property damage due to smoke from fires at the landfill, litter damage from blowing debris, and contamination of their well and underground springs. Appellants further claimed that they suffered physical and emotional damages from the smoke, contaminated water and odor from the landfill. The court held the new trial from February 19 — 27, 1985. On February 27, 1985, the jury returned its verdict, pursuant to a special verdict form, finding: (1) the Great Falls Sanitary Landfill did constitute a nuisance at some, unspecified time after July 1, 1977; and (2) at no time was the nuisance caused by negligence on the part of the City. Pursuant to the jury’s verdict, the court entered judgment for the City. This appeal followed.

The first issue is whether the District Court erred, prior to the first trial, in reversing its order granting summary judgment to appellants on the issue of liability. In June 1983, following the first trial, the District Court entered judgment in favor of the City and against the appellants. Thereafter, the court granted appellants’ motion for a new trial. The City appealed that ruling but appellants did not appeal, at that time, the order reversing the grant of summary judgment which was appealable. Although the order was interlocutory when made, “nonappealable intermediate orders are reviewable on appeal” from a final judgment. Riley v. Carl (Mont. 1981), 622 P.2d 228, 230, 38 St.Rep. 83, 85.

Rule 2 of the Montana Rules of Appellate Procedure provides:

“Upon appeal from a judgment, the court may review the verdict or decision, and any intermediate order or decision excepted or objected to within the meaning of Rule 46 of the Montana Rules of Civil Procedure, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken. (Emphasis added.)”

Pursuant to Rule 2, we decline to address the merits of the first issue and hold that appellants have waived their right to appeal this issue by failing to raise it in a timely manner.

The second issue is whether the District Court erred in denying appellants’ motion for a directed verdict on the issue of comparative negligence. The City contended that appellants were contributorially negligent in constructing their residence close to the dump when they knew, or should have known, that the conditions resulting from a landfill operation could affect the value of their property. The appellants state that they moved for a directed verdict on the contributory negligence issue at the close of both their case-in-chief and the City’s case-in-chief. The transcript provided to this Court on appeal does not reflect that the motions were made, what the court ruled and why the court ruled as appellants contend it did. However, the City, by addressing this issue on appeal, implicitly concedes that such motions were made and denied. Therefore, we find it appropriate to address this issue.

Appellants contend that contributory negligence is not a defense in a nuisance action. Montana has apparently never decided that question. However,

[M]ost courts hold that where a nuisance has its origin in negligence, as distinguished from an absolute nuisance, contributory negligence is a defense, and in jurisdictions in which it is recognized, the doctrine of comparative negligence may be applied.”

58 Am.Jur.2d Nuisances, Section 221, p. 825 (1971); citing among others, Copart Industries, Inc. v. Consolidated Edison Co. (N.Y. 1977), 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968. Here, appellants claim that the nuisance has its origins in negligence. Where such is the claim, we agree with the above cited authorities and hold that contributory negligence can be a defense in a nuisance action.

When deciding a motion for directed verdict, the trial court must view the evidence in a light most favorable to the party opposing the motion. Mydlarz v. Palmer/Duncan Const. Co. (Mont. 1984), [209 Mont. 325,] 682 P.2d 695, 41 St.Rep. 738. “No case should be withdrawn from the jury if reasonable men may differ as to the conclusions drawn from the evidence.” Mydlarz, 682 P.2d at 705.

One of appellants’ contentions was that their well water was contaminated by drainage from the landfill. There was expert testimony that this was extremely unlikely. Moreover, Richard Rosa, a licensed civil engineer working for the Water Quality Bureau of the Department of Health and Environmental Sciences, testified that the top end of appellants’ well casing terminates below the ground thereby creating a possible contamination problem. Robert Gillespie, a geological engineer, elaborated on this possibility. He testified that if well casing ends below a run-off point, animal waste or other contaminants could be washed into the well. In this regard, Gillespie also stated that he knew the appellants had pets. He stated that appellants’ problem could be a classic case of well contamination from an improperly sealed well. This evidence, in a light most favorable to the City, could support a conclusion that the appellants were contributorially negligent in the contamination of their well.

Further evidence tended to show contributory negligence. Appellants’ counsel asked Lou Fontana, a Cascade County civil engineer, if he would say that appellants were negligent in putting their house there. Fontana replied, “You bet. I wouldn’t build a house there.” Along this line, Duane Robertson, the Chief of the Solid and Hazardous Waste Bureau of the Department of Health and Environmental Sciences, stated that he probably would not have built a $125,000 house where the appellants did. We find that the court properly denied the motion for a directed verdict as to contributory negligence. Finally, we also note that the jury did not reach the issue of contributory negligence under the special verdict form.

Under the third issue, appellants contend that the lower court made numerous instructional errors. We address only those objections appellants raised before the District Court. Appellants first attack the court’s instruction Number 2 which basically told the jury that (1) a witness may be discredited or impeached by contradictory evidence or prior inconsistent statements, and (2) if a witness knowingly testified falsely, the jury could distrust or reject that witness’ testimony. Appellants objected that the instruction was an incorrect statement of law because it did not instruct the jury that prior inconsistent statements could be used as substantive evidence. The court gave the jury another instruction that prior inconsistent statements could be used as substantive evidence. Therefore, there was no error under this instruction.

Appellants object to the court’s instruction Number 11 which quoted Section 75-10-204, MCA, concerning the powers and duties of the Department of Health and Environmental Sciences. The instruction states, in part, that the department may adopt rules governing certain aspects of solid waste management systems. The City’s compliance with those rules was an issue before the jury and we find no error in this instruction.

Appellants’ challenge to the court’s instruction Number 12 is the most troublesome. In part, that instruction states that there is no evidence that the City violated any administrative regulations prohibiting open burning. In a preliminary discussion of the proposed instructions, the appellants made a specific objection to this charge. At the end of this preliminary discussion, the court stated:

“We’ll reconvene at 8:30 tomorrow morning, and at that time, I will have an order of these instructions, and I will read that. If you have any other objections or arguments that you want to make, you can do so during that one hour of time we have between 8:30 and 9:30.

“I guess what I am saying is that if I denied [an] instruction that you are particularly offended by or if I grant one that really offends you, then that would be the time to raise the argument. (Emphasis added.)”

The District Court was following the provisions of Rule 51, M.R.Civ.P., which states:

“[T]he court shall rule upon the proposed instructions . . . and shall submit to the parties the instructions that will be given and provide opportunity to make objections.”

The following day the court advised counsel of the instructions to be given. At that time, appellants’ counsel did not object to the court’s instruction Number 12 and, in fact, seemed to accept that instruction. Appellants’ counsel stated that he would stand on his previous objections to the rest of the instructions, “. . . understanding what the Court had to say about the air quality rules, we can still argue about the fires . . . “ We hold that counsel did not properly object to this instruction and, therefore, there was no error in giving the charge.

Appellants objected to the court’s instructions 20, 21, and 22 as not correct statements of law and because appellants’ proposed instructions allegedly covered the issues better.

“Objection to an instruction that it is an incorrect statement of the law without specifying the defect has long been considered an insufficient objection and we will not review the alleged error occasioned by the giving of an allegedly incorrect instruction.”

Nott v. Booke (Mont. 1981), 633 P.2d 678, 680, 38 St.Rep. 1507, 1510. That rule applies here.

Appellants also objected to the court’s instructions Numbers 15, 29, 30, and 36. They argued that appellants’ proposed instructions covered the issues better. Appellants interposed no other objection. We find no need to set out the challenged instructions. The objections were extremely general in nature and did not advise the District Court of any specific defect in the instructions. Therefore, given that the only alleged defect was that other instructions covered the issues better, we hold that the court did not commit error in giving these challenged charges.

Appellants objected to instruction Number 27 which primarily stated:

“[i]f weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory could have been produced, the evidence offered should be viewed with distrust.”

Section 26-1-303, MCA, advises a district court to give this instruction on “all proper occasions.” Appellants argued that the instruction had no application to this case because each side had allegedly produced all the evidence that it could. Appellants contend that the instruction was unnecessary but, significantly, they do not argue that, nor show how, this instruction was prejudicial to them. Our review of the record does not demonstrate that this instruction in any way prejudiced appellants. Thus, even if this instruction was erroneous we would not reverse the verdict. Rule 61, M.R.Civ.P.

Appellants objected to instruction Number 28 which stated, “A person confronted with a sudden emergency is required only to act as a reasonably prudent person under those circumstances.” First, we note that in Simonson v. White (Mont. 1986), [220 Mont. 14,] 713 P.2d 983, 43 St.Rep. 133, this Court specifically banned the use of the sudden emergency instruction in automobile accident cases. The Simonson “ban” was limited to automobile accident cases and this Court did not reach the issue of whether the sudden emergency instruction might be proper in other negligence cases. We do not reach that issue today either. Appellants did not object to the instruction on the basis that a sudden emergency rule might not be appropriate in a negligence case. Appellants’ only objection was that there was no evidence in the case of any sudden emergency. We disagree with that assertion. Witnesses testified that in 1980 a 100 year storm (a storm so unusually severe that it occurs, on the average, once every 100 years) exacerbated the problem of blowing litter. That storm knocked down all of the City’s fences which had been erected in an attempt to solve the problem of blowing litter. Moreover, the City introduced evidence that arson was the cause of the sizable fire which caused smoke damage to appellants’ property. Those incidents justified an instruction on the sudden emergency rule.

Lastly, the appellants objected to instruction Number 29, which stated:

“The defendants are not liable for injury caused by a dangerous condition at the landfill if the defendants establish that the act or omission that created the dangerous condition was reasonable.
“In determining whether the act or omission which created a dangerous condition was reasonable, you shall weigh the probability and gravity of potential injury to persons and property the defendants should have foreseen might be injured by the condition against the practicability and cost of having taken alternative action that would not have created the risk of injury or would have protected against it.”

Appellants argued at trial that (1) the instruction was not a correct statement of law, (2) the City could not argue that the landfill was a dangerous condition, and (3) the instruction assumes a landfill is a dangerous condition. We will not consider appellants’ first complaint because of its lack of specificity. As to the third complaint, we do not find that the instruction assumes that a landfill is a dangerous condition. As to the second complaint, we find that it was proper for the City to argue that the landfill was a dangerous condition. The City introduced evidence that subterranean fires, which burned at the dump for about two years, were very dangerous. The fires were especially dangerous to fight because they burned garbage buried underground, thereby making the surface unstable and allowing machinery or people to fall through the surface and into the fires. As against the objections raised, the court did not err in giving this instruction.

The fourth issue is whether substantial evidence supports the jury’s verdict. “The appellate rule of review is that if substantial evidence in the record supports a jury verdict, it must be sustained.” Gibson v. Western Fire Ins. Co. (Mont. 1984), [210 Mont. 267,] 682 P.2d 725, 736, 41 St.Rep. 1048, 1058. We have examined the 995 page partial transcript provided to us on appeal and many of the almost 100 exhibits. We find that there is substantial evidence to support the jury’s verdict. Some of that evidence has been cited in other contexts previously in this decision. Other evidence showed (1) that the City made extensive and varied efforts for a sustained period to extinguish the subterranean fires, (2) the initial fire was almost certainly caused by arson, (3) the City made continuous and determined efforts to stop the problem of blowing litter, (4) the problem of blowing litter stemmed partially from private persons dumping garbage along the roadway leading to the landfill, and (5) the landfill was almost certainly not the source of the contamination of appellants’ well. We find no error under this issue.

The last issue is whether the lower court erred in denying appellants’ motion for a new trial. “This Court will not disturb a trial court’s ruling regarding motions for a new trial in the absence of a showing of an abuse of discretion.” Wilhelm, 685 P.2d at 351. Appellants argue that the jury’s verdict (that the landfill was a nuisance but that the City was not negligent) is contrary to the law as contained in the jury instructions. Therefore, they contend, the court abused its discretion in failing to grant a new trial.

Appellants contend the verdict was contrary to instructions 14 and 21. Instruction 14 states:

“You are instructed that because the City of Great Falls operates its sanitary landfill under the provisions of the Solid Waste Management Act of the State of Montana and has a license for the oepration [sic] of the same, you may not conclude that the landfill is a nuisance unless you find that the City of Great Falls is operating its landfill in such a negligent manner that it interferes with plaintiffs’ comfortable enjoyment of their life and their property.”

Instruction 21 states:

“You are instructed that the defendants have been authorized by statute to do certain things and their acts are lawful as long as they act within the scope of the letter and spirit of the authority granted. Therefore, in order to predicate a nuisance against them, it must be proven that the act done was wholly unauthorized or that it was negligently done. In either case, liability for the consequences exists in all grants of authority to do an act which may or may not be productive of injury to others accordingly as it is executed. The law presumes that it shall be done in such a manner as to be productive of the least possible injury and if not so done, liability exists for the consequences.”

Appellants argue that under those instructions the jury could find a nuisance only if they first found negligence. We disagree with appellant as to instruction 21. That instruction allows the jury to find a nuisance if the act done was wholly unauthorized or negligently done. Therefore the verdict was not contrary to instruction 21.

We agree with appellants that under instruction 14 the jury was required to find the City operated the landfill in a negligent manner before they could find a nuisance. That instruction would seem to be contrary to the verdict that there was a nuisance but that the City was not negligent. However, taking the instructions as a whole, we find that that discrepancy is not fatally defective. The court gave the jury correct and clear definitions of negligence and nuisance. Using the special verdict form, the jury found a nuisance existed but that the City was not negligent. The special verdict form did not require a finding of negligence prior to finding a nuisance existed. There is ample evidence to support the findings that there was a nuisance and that the City was not negligent.

Instruction 14 was an erroneous statement of law. Under the statutory definition of nuisance at Section 27-30-101, MCA, a nuisance can exist without negligence. Insofar as the verdict is contrary to the erroneous instruction, we find that appellants suffered no prejudice. We will not reverse a judgment where an erroneous instruction, taken in light of all the instructions, did not prejudice the complaining party. Wolf v. Barry O’Leary, Inc. (1957), 132 Mont. 468, 318 P.2d 582.

Because of our rulings on appellants’ issues, we do not need to address the issues which the City raises on cross-appeal.

Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF CARLA WILLEY HAMMILL, Petitioner and Appellant, and GARY DOUGLAS HAM-MILL, Respondent and Respondent.
    No. 86-136.
    Submitted on Briefs Nov. 25, 1986.
    Decided Feb. 3, 1987.
    732 P.2d 403.

      Oleson Law Firm, H. James Oleson, Kalispell, William Boggs, Missoula, for petitioner and appellant.
    Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Robert B. Allison, Kalispell, for respondent and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Carla Willey Hammill appeals the disposition of marital property and award of joint custody ordered by the District Court, Eleventh Judicial District, County of Flathead. The valuation and division of marital property is affirmed; the issue of child custody is remanded.

Carla Willey Hammill and Gary Douglas Hammill were married June 3, 1967 in Iowa. They both attended Iowa State University, and upon their graduation in 1969, moved to Whitefish, Montana where Gary had a job as a veterinarian. Carla taught art and physical education in Whitefish until she became pregnant with her first son, Chet. Chet was born in September, 1971. A second son, Curt, was born in May, 1974.

The family moved to Kalispell in 1971, where Gary opened his own practice at Ashley Creek Animal Clinic. He suffered a severe back injury in 1972 when a metal kennel gate fell on his back. The pain caused by the injury led him to curtail his veterinary practice. He took on a partner in 1983, and eventually sold out his interest to the partner in January, 1985.

Carla and Gary separated in 1982, and the petition for dissolution was filed December 2, 1982. The couple entered into a temporary joint custody agreement on September 6, 1983, whereby the primary residency of the two boys was to be with their mother, the father having the boys every other weekend and six weeks during the summer. Gary also agreed to pay $250.00 per child per month in child support.

On December 13, 1983, the District Court appointed an attorney, Robert Allison, to represent the boys in this proceeding. A bench trial took place before the Honorable James M. Salansky on June 14, 1984. Attorneys for all parties were present, and a request that the court talk with the children in chambers was taken under advisement. The children-did not testify at this time, and when the parties rested, the entire proceeding was taken under advisement. Mr. Allison also submitted a report to the court on the matter of custody arrangements, this report also being taken under advisement.

Judge Salansky’s subsequent illness and death prevented a final disposition of the matter. The Honorable Nat Allen was appointed to the case, and another bench trial was held December 5, 1985, at which time the marital property division and permanent custody arrangements were decided. For some reason, the children’s attorney was not notified of this trial, and no evidence or testimony other than that of the parents was presented on the children’s behalf. Each boy was briefly and separately interviewed by Judge Allen in chambers, with a court reporter present.

At the end of the trial, Judge Allen stated he was going to keep the boys together rather than split custody between the parents, and that physical custody would alternate annually between mother and father. He stated that while the parties were free to propose findings otherwise, he was deciding custody as indicated. Both parties submitted findings of fact and conclusions of law as to the value of marital assets, the division of assets and liabilities, and child custody arrangements. The court adopted the husband’s findings verbatim, and the wife appeals the decision.

Carla Hammill sets forth the following issues on appeal:

(1) Whether the District Court erred in evaluating the marital property as of December, 1985 (the date of the dissolution), rather than as of October, 1982 (the date of the parties’ separation)?

(2) Whether the District Court erred in dividing the marital property on a 50-50 basis?

(3) Whether the District Court erred in adopting the husband’s findings verbatim?

(4) Whether the District Court can determine contested custody without stating its reasons therefor?

(5) Whether the District Court determined custody without considering the best interests of the children?

The younger son, Curt, also appeals the custody order through his co-counsel, William Boggs. Mr. Boggs was appointed co-counsel with Mr. Allison, and given leave to file a brief by order of this Court dated August 21, 1986. The issues raised by Curt are:

1. Whether a custody decree can stand where the attorney appointed to represent the children was not notified of and did not participate in the trial which determined custody?

2. Whether the District Court considered all five factors affecting the best interests of the children, as required by 40-4-212, MCA?

3. Whether joint custody is in the best interests of the children?

Property Disposition

In reviewing the division of property made by a district court, we will not disturb the decision absent a clear abuse of discretion. The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 83, 42 St.Rep. 623, 626.

Carla Hammill first challenges the valuation date used by the District Court. She argues the court should have used 1982 values for the marital property — 1982 being the date of the parties’ separation — rather than 1985 values — 1985 being the date of the dissolution of the marriage.

The general rule in Montana is that “[a] proper disposition of marital property in a dissolution proceeding requires a finding of the net worth of the parties at or near the time of the dissolution.” In Re Marriage of Loegering (Mont. 1984), [212 Mont. 499,] 689 P.2d 260, 264, 41 St.Rep. 1892, 1896. (Emphasis added.) The policy of using the dissolution date for valuation of property is that this valuation date most clearly reflects the status of the property at the time of trial. In Re Marriage of Hamilton (1980), 186 Mont. 282, 283, 607 P.2d 102. In this case, Carla does not argue that the 1985 values were inaccurate or incorrect in themselves. Rather, she argues that the court should have adopted the 1982 values which she proposed. A trial judge is free to select whatever value he or she wishes, so long as there is substantial credible evidence to support the value selected. In Re Marriage of Staudt (Mont. 1985), [216 Mont. 196,] 700 P.2d 175, 177, 42 St.Rep. 740, 743.

There is no evidence in the record which conflicts with the 1985 values adopted by the District Court, and we therefore hold the court did not abuse its discretion in adopting the 1985 valuation date.

The second issue Carla raises is whether the court erred in dividing the marital property on a 50-50 basis. The marital property was divided as follows:

Property To Husband To Wife
Home (1015 First Avenue East, Kalispell, MT) $34,568.18 (He shall be solely responsible for the mortgage balance)
Unimproved property (LaBrant Road tract Flathead County, MT) V4 (the Easterly ¥t (The tract) Westerly three tracts)
23,700.00 $71,100.00
(The parties shall share the payment of the Contract for Deed obligations on a pro rata basis, i.e., 'A Husband, % Wife and property taxes shall be shared similarly if the taxes are not assessed separately)
International Scout $ 500.00
Van $ 3,000.00
Life Insurance Policy $ 665.00
Teacher’s Retirement Unknown
Household Furnishings:
Items 1 through 35 on Exhibit “A” as indicated $ 2,500.00
(Note: Items being used by the parties’ sons at this time will be made available to Respondent at the end of the 1985-86 school year.)
Items 1 through 35 on Exhibit “A” as indicated, exclusive of Item 17, which is located in the Kalispell home and shall be considered a part of said home $ 2,500.00
Items 36 through 67 on Exhibit “A” Each party shall retain the personal gifts noted at the end of Exhibit “A” $ 2,000.00
Contract Receivable (The parties will share payments received on this Contract receivable in the proportion that has been $ 8,833.41 $ 1,166.59 allocated)
TOTAL $75,266.59 $75,266.59

“The marital liabilities (exclusive of those noted above) total $8,768.94 and shall be shared equally between the parties. The farm equipment, horse and shop equipment and the horses, which have not been allocated to either party above, shall be sold and the sales proceeds shall be applied to the marital debt. Husband, because of his experience with horses and horse owners, shall be primarily responsible for the sale of these assets. As assets are sold and debts are satisfied, a full and complete accounting shall be provided by him to Wife. Any proceeds from the sale of assets not required to satisfy the marital debts specified in Finding of Fact No. 13 or not required to pay the ongoing expenses incurred in keeping the horses from the time of this trial until their disposal (which the Court also recognizes as marital debt) shall be sharéd equally between the parties.”

“The District Court based this division of property on the nature of the assets, the contributions of the parties, the education and employment backgrounds and prospects of the parties, the health of the parties and their needs as parents. The court found that both parties were employed — Carla as a school teacher earning $15,000 per year with expectation of a tenured position; Gary as a veterinarian who did some consulting work, who was trying to start a new business, and who earned approximately $10,000 per year. Gary’s back injury had caused him to limit and finally sell his veterinary practice in Kalispell, thus limiting his earning capacity. Carla had no physical disabilities. Carla also planned to remarry after the dissolution of the marriage, and had established a household in Missoula three years previously. We find sufficient evidence in the record to support the District Court’s division of marital property on a 50 — 50 basis.

Carla next contends the District Court’s adoption of Gary’s proposed findings of fact and conclusions of law was error. The standard of review for findings made by a district court is the same whether the district court prepared the findings or whether it adopted a party’s proposed findings. In Re Marriage of Goodmundson (1982), 201 Mont. 535, 538, 655 P.2d 509, 511. This Court’s test for the adequacy of findings 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. In Re Marriage of Hurley (Mont. 1986), [222 Mont. 287,] 721 P.2d 1279, 1285, 43 St.Rep. 1271, 1277. The findings in this case do meet the above tests. The court heard testimony from both parties as to the property and child custody issues, as well as examined exhibits, memoranda, and interrogatories filed and made part of the record below. There is ample evidence in the record to support the District Court’s adoption of respondent’s proposed findings of fact and conclusions of law, and we find the court did not abuse its discretion in so doing.

Child Custody

The remaining two issues raised by Carla involve the propriety of the award of custody of the two children. She urges us to reverse the joint custody award based on the alleged failure of the District Court to state its reasons for awarding joint custody, and its failure to consider the best interests of the children as set forth under Section 40-4-212, MCA. The younger child, Curt, has also appealed the custody order, based on the alleged failure of the court to consider the best interests of the children, and also on the failure to notify his attorney of the trial which determined custody.

We find that the failure to notify a child’s attorney of proceedings affecting that child’s interest constitutes reversible error, and so do not reach the issue of adequacy of the court’s findings as to the best interests of the children.

Robert Allison was appointed by Judge Salansky as the children’s attorney on December 13, 1983. Mr. Allison received notice of and attended conferences and a non-jury trial before Judge Salansky in 1984. The non-jury trial did not address the custody issue. On August 30, 1984, Mr. Allison submitted a report to the court detailing his interviews with the various parties and other witnesses, and suggesting a joint custody arrangement with physical custody being awarded to the mother until the children reached ninth grade, and thereafter physical custody being with the father for the remainder of the boys’ time in high school.

Due to Judge Salansky’s illness and death, the case was not decided in 1984. In 1985, Judge Allen was appointed to the case. For some reason, all notices thereafter concerning conferences and the trial were sent to counsel for Carla and Gary, but not to the children’s attorney, Mr. Allison. While the appointment of an attorney to represent children in custody matters is discretionary with the court under Section 40-4-205, MCA, once the attorney has been appointed, it is required that he or she is served with all orders, pleadings, notices, motions and other papers pertinent to the action. Rule 5(a), M.R.Civ.P.; Section 25-3-402, MCA.

Further, the purpose of Section 40-4-205, MCA, is to provide children with an advocate who will represent their interests and not the parents’ interests. In Re Marriage of Kramer (1978), 177 Mont. 61, 72, 580 P.2d 439, 445. This means the attorney must actively represent the children and be given an opportunity to present to the court all the evidence he or she can marshal concerning the best interests of the children. Id. Obviously, the attorney cannot perform this role unless notified of conferences and hearings.

We therefore set aside the custody award as it applies to Curt Hammill. As we found in our order of August 21, 1986, the older brother, Chet, is apparently satisfied with the time-sharing custody arrangement and the custody award as to Chet is not at issue in this appeal. The District Court’s disposition of the marital property is affirmed.

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


author: MR. JUSTICE HUNT

text:
    SHARON BOOTH, Petitioner and Appellant, v. ED ARGENBRIGHT, State Superintendent of Public Instruction; Missoula School District No. 1, Mike Bowman, Missoula County Superintendent of Schools, Respondents and Respondents.
    No. 86-346.
    Submitted on Briefs Nov. 20, 1986.
    Decided Feb. 4, 1987.
    731 P.2d 1318.

      Ian Christopherson, Missoula, for petitioner and appellant.
    Richard Bartos, Office of Public Instruction, Helena, Hilley & Loring, Great Falls, Michael W. Sehestedt, Deputy County Atty., Missoula, for respondents and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal by Sharon Booth of the order of the District Court, First Judicial District, Lewis and Clark County which affirmed the decision of the State Superintendent of Public Instruction. We affirm the decision of the District Court that the teacher’s resignation was effective and no rescission has taken place.

There is no statement of issues presented for review in appellant’s brief as required by Rule 23(a)(2), M.R.App.Civ.P. We therefore adopt respondent’s statement of the issue.

Whether the District Court erred as a matter of law in affirming the decisions of the County Superintendent of Schools and State Superintendent of Public Instruction which held that Booth’s resignation was effective and terminated her employment with the School District.

The facts in this action were essentially stipulated to in the prehearing order before the County Superintendent. On January 17, 1979, Sharon Booth was a tenured teacher under contract to Missoula County School District No. 1. Booth was charged in Missoula Municipal Court and, without counsel, pled guilty to a misdemeanor theft charge. The plea was later withdrawn and the case dismissed. On January 10, 1979, following Booth’s guilty plea and prior to its withdrawal, the Board of Education of District No. 1 (the Board) in closed session and based on the theft charge and guilty plea, voted to authorize Superintendent of Schools Ben Hanson to request Booth’s immediate resignation and, if she refused, to institute immediate dismissal procedures in accordance with Montana statutes. Hanson was also authorized to grant Booth 30 days’ additional pay. The Board’s action was communicated to Booth by Hanson’s letter of January 17,1979. The same day, Booth signed a letter of immediate resignation typed for her by her building principal. Booth was teaching on the day her resignation was requested and received. Her letter was transmitted to Hanson, who directed issuance to Booth of a final pay warrant on January 19, 1979, and a warrant for 30 days’ severance pay on January 23, 1979. Booth, acting through her attorney Anthony Keast, accepted, cashed and deposited the proceeds of those checks in Keast’s trust account. Booth has not offered to refund the $1,502.24 severance pay; the Board has not requested its return.

On February 8 or 9, 1979, Booth, through counsel, made written request to the Board that she be allowed to withdraw her resignation. Her attorney was present at the Board’s February 13, 1979 meeting to attempt to withdraw her resignation. The Board went into closed session to discuss the matter and, on advice of the Deputy County Attorney for Missoula County, declined to allow withdrawal of the resignation.

On February 20, 1979, Booth appealed the Board’s action to the Missoula County Superintendent of Schools Mike Bowman, who declined to hear the appeal, citing advice of the Missoula County Attorney’s office. Thereafter, a writ of mandate was issued by Judge Henson compelling the County Superintendent to abide by the contested case procedures in Section 20-3-210, MCA.

Following Judge Henson’s order, a hearing before the County Superintendent of Schools was held on May 22, 1984. Prior to the hearing, the parties submitted a prehearing order which set forth an agreed statement of facts. The only issue of fact left to be decided was whether or not school officials had made certain statements regarding the effect of Booth’s acceptance of severance pay as asserted by Anthony Keast during the Board’s meeting of February 13, 1979. Although listed as a witness for Booth, Keast did not testify at the hearing.

The County Superintendent concluded that the Board’s action to effect Booth’s resignation or initiate termination proceedings constituted an offer by the Board to Booth to amend their existing contractual relationship; that her resignation letter constituted acceptance of the Board’s offer; and that her resignation in lieu of formal termination with 30 days’ severance pay constituted consideration. He also concluded that there was no contractual, procedural or legal requirement that the Board formally accept Booth’s resignation; that it was established practice for the Board to request a teacher to resign in lieu of formal termination proceedings; and that authorization by the Board to the Superintendent to effect a resignation did not require further action by the Board to complete the resignation following receipt of Booth’s letter of resignation dated January 17, 1979. Finally, he concluded that Booth’s appeal to the County Superintendent was timely and that actions taken by the District Court prior to February 10, 1979, were not subject to review in that no appeal was undertaken until February 20, 1979. The County Superintendent held that Booth’s resignation was effective and the School District’s contractual obligation to her was satisfied upon her acceptance of the severance pay.

Booth filed notice of appeal to the State Superintendent of Public Instruction, Ed Argenbright, on September 14, 1984. The matter was briefed and oral argument was held on May 20, 1985. Argenbright issued his decision and order on July 24, 1985, basically affirming the order of the County Superintendent. Argenbright made additional conclusions of law in response to arguments raised by the parties.

“6a. Acceptance of Board’s offer by teacher’s resignation and acceptance of severance pay considered on [sic] accord as defined in section 28-1-402, MCA.
“6b. No recession [sic] of agreement to resign was accomplished because of teacher’s retention of severance pay.
“8. That the decision by the Missoula County District Court, ordering the County Superintendent to conduct a hearing, did not evidence or imply a ruling that the termination obtained by the Respondent School District was illegal or invalid, or in any other way breached the merits off [sic] the controversy presented.
“10. That the Missoula County Superintendent did not make any errors of law in his decision in this matter.”

Booth filed a petition for judicial review in the District Court of the First Judicial District. The District Court affirmed the decision of the State Superintendent of Schools. Booth appeals.

The standard of review in this case is set forth in Section 2-4-704(2), MCA:

“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(a) in violation of constitutional or statutory provisions;
“(b) in excess of the statutory authority of the agency;
“(c) made upon unlawful procedure;
“(d) affected by other error of law;
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or “(g) because findings of fact, upon issues essential to the decision, were not made although requested.”

We expanded on the proper standard of review in Yanzick v. School District #23 (1982), 196 Mont. 375, 388, 641 P.2d 431, 439.

“From the foregoing, it is apparent that the procedure in appealing to this Court is identical to that used in an appeal from any other district court decision. In this proceeding the District Court was not the trier of fact. We have here an appeal from a lower appellant tribunal which in turn based its conclusions on a review of the printed record, without the benefit of listening to and observing the demeanor, conduct and testimony of witnesses. We hold that this Court should not substitute its judgment for that of the County Superintendent as to the weight of the evidence on questions of fact and that this Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings and conclusions are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.”

In effect, appellant contends this Court should review the decisions of the County Superintendent and the State Superintendent de novo, using the Workers’ Compensation standard of review set forth in Brewington v. Birkenbuel, Inc. (Mont. 1986), [222 Mont. 505,] 723 P.2d 938, 43 St.Rep. 1458. Appellant contends this Court is in as good a position as the original trier of fact to consider the evidence. We are not in as good a position as the original trier of fact to consider the case because we did not have the opportunity to attend the hearing and view the testimony of the witnesses. Our function as an appellate court reviewing an administrative decision is not to substitute our judgment for that of the County Superintendent but rather to review the whole record to determine if the administrative findings and conclusions are clearly erroneous. Yanzick v. School District #23, 196 Mont, at 389, 641 P.2d at 439. We are aware:

“(1) limited judicial review of administrative decisions strengths [sic] the administrative process by encouraging the full presentation of evidence at the initial administrative hearing; (2) judicial economy requires court recognition of the expertise of administrative agencies in the field of their responsibility; and (3) limited judicial review is necessary to determine that a fair procedure was used, that questions of law were properly decided, and that the decision of the administrative body was supported by substantial evidence.” (Citations omitted.)

Northern Plains Resource Council v. Board of Natural Resources(1979), 181 Mont. 500, 509, 594 P.2d 297, 303.

First, appellant contends that Booth’s resignation was not effective until the School Board accepted it at a meeting because only the School Board has authority over a teacher’s employment. The District Court held the Board made its decision to terminate Booth and had Hanson carry the offer to Booth to amend the existing contractual relationship between Booth and the Board, with consideration of one month’s severance pay and the opportunity to resign rather than undergo formal termination proceedings. Booth accepted this offer by tendering her resignation and accepting the warrant for severance pay issued by the School District. The School Board did not need to formally accept the resignation because it had already decided to terminate Booth and made the offer to spare her formal termination proceedings. The lower court did not err on this issue.

Next, appellant contends the School Board cannot delegate its power of acceptance of an employment contract and therefore Booth’s resignation was timely revoked. The District Court held there was no delegation of authority here. It held that the Board made the decision, then directed Hanson to carry the offer to Booth, a purely ministerial act. This is correct. The contract was completed when Booth accepted the offer by tendering her resignation.

Next, appellant contends the case at issue is barred by res judicata, collateral estoppel or estoppel by judgment. Appellant contends the order granting the writ of mandate effectively directed that the resignation letter signed by Booth be adjudged void. The District Court held that this was incorrect for two reasons: first, the issue was not presented on appeal to the County Superintendent; second, the writ of mandate was issued to compel the County Superintendent to comply with Section 20-3-210, MCA. It did not reach the merits of the controversy and thus could not be res judicata. The District Court did not err in this holding.

Next, appellant makes objection to specific findings of fact. Having reviewed the record, we find the findings of fact are supported by substantial evidence.

Next, appellant contends that the teacher was given improper notice. This issue is outside the stipulated facts and was not presented to the administrative agency for review as required by Section 2-4-702(l)(b), MCA. It is axiomatic that we will not address issues raised for the first time on appeal. In Re Marriage of Glass (Mont. 1985), [215 Mont. 248,] 697 P.2d 96, 42 St.Rep. 328; Bowman v. Prater (Mont. 1984), 692 P.2d 9, 41 St.Rep. 2236; Scofield v. Estate of Wood (Mont.1984), [211 Mont. 459,] 683 P.2d 1300.

Appellant contends that the School Board’s failure to initiate formal termination proceedings against Booth was in violation of her due process rights. Again this issue is outside the stipulated facts and was not presented to the administrative agency for review.

Appellant contends the issue of accord and satisfaction as presented by the School Board is precluded by “estoppel by silence.” Appellant does not define “estoppel by silence” but estoppel is an affirmative defense which must be pled and proved by the party raising it. Rule 8(c), M.R.Civ.P. In this case no evidence was offered that school officials made statements to Tony Keast regarding the effect of acceptance of severance pay. As such, there is no evidence in the record to support this theory.

The decision of the District Court upholding the decisions of the State Superintendent and County Superintendent of Schools is affirmed.

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


text:
    FIRST NATIONAL BANK OF EKALAKA, Appellant, Intervenor, v. PEGGY S. STRAIT now HEREFORD, Plaintiff, Respondent, v. FRANCIS J. STRAIT, Jr., Defendant, Respondent.
    No. 85-539.
    Submitted on Briefs Sept. 30, 1986.
    Decided Feb. 5, 1987.
    731 P.2d 1323.
    Richard O. Harkins, Ekalaka, for appellant, intervenor.
    Rex Palmer and Richard Reep, Missoula, for plaintiff, respondent and defendant, respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The First National Bank of Ekalaka, Montana, petitioned for a writ of review for the purpose of reviewing a contempt judgment and fine levied against it by the Fourth Judicial District in and for the County of Missoula. We granted the writ and heard oral argument. The contempt order is vacated.

The matter began as a divorce action in March, 1958, wherein a child support order was entered in favor of the wife, (Hereford). The husband (Strait) failed to make many of the payments required of him in the order. At a hearing in September, 1974, to determine his total arrearage, the court determined he owed $5,044 plus interest, and judgment was entered. Because the children were then adults, no support accrued thereafter. Hereford filed a motion in the Fourth Judicial District March 26, 1982, for leave to execute, pursuant to Section 25-13-102, MCA. The motion was noticed and heard. Leave to execute was granted until October 30, 1984. Subsequently, the court has issued several writs of execution which have not been satisfied.

A writ of execution issued May 10, 1984, in the amount of $9,619.52 was served May 30 on the First National Bank of Ekalaka (Bank) where Strait was a customer, demanding all funds held by the Bank for Strait. There were, however, no funds in any of Strait’s accounts. Several days later the sheriff, learning that the Bank had taken two of Strait’s vehicles into possession, again served execution upon the Bank for release of these vehicles. A Bank officer refused to relinquish them until the Bank received tender of the amount of the Bank’s security interest in the vehicles. The officer did not reveal the amount of its security interest.

The Bank petitioned this Court for a writ of review of an order of the District Court holding it in contempt for refusing to release the vehicles and levying a fine of $500 against it. We agreed to hear oral argument on the application.

Although the Bank raises several issues in its brief, it does not have standing to do so, because it is not in this Court on appeal, Section 27-25-102(1), MCA, nor is it a party aggrieved. Rule 1, M.R.App.Civ.P. See also Montana Power Co. v. Montana Department of Public Service Regulation (Mont. 1985), [218 Mont. 471,] 709 P.2d 995, 42 St.Rep. 1750.

The scope of review on a writ cannot be extended further than to determine whether the District Court has exceeded its authority. Section 27-25-303, MCA. See also State ex rel. Porter v. First Judicial District (1950), 123 Mont. 447, 215 P.2d 279, and State ex rel. Lay v. District Court (1948), 122 Mont. 61, 198 P.2d 761. On the facts of this case we have determined the court exceeded its authority in holding the Bank in contempt.

On May 30, 1984, writ of execution was served upon the Bank demanding payment of the balance owing to Hereford. The return of execution shows that there were no funds for delivery by the Bank to the sheriff and the writ was returned unsatisfied. At the same time service of the writ was made upon the Bank, the sheriff delivered to the Bank a letter from Hereford’s attorney addressed to the Bank. The letter is extremely confusing and contradictory. The attorney explains that he represents Hereford, who is seeking to satisfy a judgment against Strait. He is having difficulty collecting the amount of the judgment, and suggests the Bank can help him. He mentions that he understands Strait engages in certain periodic banking transactions and further understands that Strait has accounts at the Bank, has borrowed money and even may have secured the money with vehicles or other property. He then makes the following request:

“You can assist me in collecting the Judgement [sic] by providing me with as much information as you have on the Judgment [sic] debtors [sic] financial status and the status of the repayment of any loans you have made to the Judgement [sic] debtor. Please provide me with a list of all the accounts which the Judgement [sic] debtor currently has with you, including account numbers and current balances. It would certainly help if you would tell me when deposits are generally made into the judgement [sic] debtors [sic] accounts. Please also provide me with copies of all financial statements which the Judgement [sic] debtor has completed when applying for loans at your bank.”

He asked for information about loans, including amounts and dates, advancements of money, security interest description of advances, method of payment, whether cash or by check, amount applied to principal and amount applied to interest, account number of the check by which payment was made, and the balance remaining due and unpaid. He asked the Bank to file affidavits with the Registrar’s Bureau in Deer Lodge for each vehicle, and with the County Clerk and Recorder for other security. He said it was not that he did not trust the Bank, but this would provide an independent source of verification when he sent the sheriff to execute on the judgment. Finally, he set forth the following paragraph:

“I can tell you in all candor that I believe the Judgement [sic] debtor is trying to avoid paying the debt to my client. The Judgement [sic] debtor might object to your providing me with any information if you contact him before providing me with the information which I have requested in this letter, so if you will respond as quickly as possible, the Judge’s Order will have the best chance of being enforced.
“Thank you for your assistance, your help will aid greatly in collecting the Judgement [sic].”

In its findings of fact, the District Court concluded that this letter constituted notice sufficient to meet the requirements of Section 25-13-506, MCA, which says in pertinent part:

“Duty of secured party. The secured party under any security agreement of record, shall, upon 15 days notice in writing served upon him in person . . . seeking to satisfy a judgment ... be required to make and file ... an affidavit showing the amount of the indebtedness then actually due and owing ... If within 15 days from the service of any such demand . . . the secured party shall fail, refuse, or neglect to file the affidavit herein required, the security agreement shall be of no force or effect as against such creditor upon the seizure of any such personal property on execution.” Because the Bank failed to file the affidavits as provided in the code section, the District Court concluded that its security interest ceased June 15, 1986. Thus, when a subsequent writ of execution was served June 28, 1986, the District Court determined the Bank was required to deliver the vehicles which were covered by its security interests. Because it failed to do so, the District Court found the Bank in contempt.

There is no dispute as to the security interest of the Bank. It properly had purchase money security interests in the vehicles which the sheriff sought to seize by writ of execution.

The Bank argues it is error for the court to hold it in contempt, because the order is based on the assumption the Bank forfeited its liens in the vehicles and therefore had no right to hold the vehicles under the execution order.

We conclude that the letter to the Bank from Hereford’s attorney was insufficient to constitute the notice to the secured party required in Section 25-13-506, MCA. Therefore the Bank did not lose its security interest in the vehicles under the forfeiture provisions of that code section.

We emphasize the nature of the letter. It asked for financial information which the Bank could not properly give. Clearly this is inconsistent with the notice and demand under Section 25-13-506, MCA. While it is true that one paragraph could be construed as a demand under that section, it is not characterized as a request or demand under the code section. The Bank easily could have failed to construe the letter to be that type of a notice or demand. In addition, the statements by Hereford’s attorney that Strait might object to the Bank’s providing information and requesting as quick a response as possible — apparently without notification to its customer, Strait — are totally inappropriate. Thus it was an abuse of discretion to find this notice sufficient for purposes of holding the Bank in contempt for failure to release the vehicles.

Section 25-13-506, MCA, provides very severe consequences when it destroys an existing security interest lien and provides that the security agreement shall be of no further force and effect. We conclude the letter of Hereford’s attorney is not sufficient to constitute the notice necessary to bring into effect these severe penalties.

We therefore vacate the District Court’s order of October 1, 1985, holding the Bank in contempt.

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


author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    CITY/COUNTY OF BUTTE-SILVER BOW, et al., Petitioners and Appellants, v. MONTANA STATE BOARD OF PERSONNEL APPEALS, et al., Defendants and Respondents.
    No. 86-141.
    Submitted Nov. 20, 1986.
    Decided Feb. 5, 1987.
    Rehearing Denied March 12, 1987.
    732 P.2d 835.
    Robert McCarthy, Co. Atty., Butte, Ross Richardson and Brian Holland argued, Deputy Co. Attys., Butte, for petitioners and appellants.

      Mary Anne Simpson argued, Dept, of Labor & Industry, Helena, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the First Judicial District in and for the City/County of Butte-Silver Bow, Montana. The District Court upheld a decision by the Montana Board of Personnel Appeals that the City/County of Butte-Silver Bow refused to abide by the parties’ collective bargaining agreement in violation of Section 39-31-401(5), MCA. We reverse and remand.

The Butte-Silver Bow Law Enforcement Commission heard charges brought against police officer Gale Wood pursuant to Section 7-32-4155, MCA, which is part of the Metropolitan Police Act, and Butte-Silver Bow Ordinance 14, which in pertinent parts is identical to the state act. Following the hearing, the Commission found the officer guilty of neglect of duty, misconduct in office, and conduct unbecoming an officer. His termination as an officer was approved by the chief executive of Butte-Silver Bow, pursuant to Section 7-32-4161, MCA. The officer then filed a petition in District Court pursuant to Section 7-32-4164, MCA, seeking judicial review of the law enforcement commission’s decision. The District Court affirmed the decision and we upheld in Wood v. Butorovich (Mont. 1986), [220 Mont. 484,] 716 P.2d 608, 43 St.Rep. 546.

Concurrently, Officer Wood pursued remedies through his union under the grievance procedure, Article 14, of the Collective Bargaining Agreement between the officer and Butte-Silver Bow. Butte-Silver Bow (appellant) refused to grieve the matter as being outside the grievance procedure, contending Wood’s exclusive remedy was pursuant to Section 7-32-4164, MCA. The union filed an unfair labor practice complaint against Butte-Silver Bow for refusal to bargain in good faith in violation of Section 39-31-401(5), MCA, with the Board of Personnel Appeals.

The parties stipulated to certain facts and to the issue to be decided, namely, whether appellant violated Section 39-31-401(5), MCA, by refusing to process Officer Wood’s grievance. The hearing examiner concluded the statute had been violated, and ordered appellant to process the grievance. Appellant filed exceptions and a hearing was held before the Board of Personnel Appeals, which adopted the hearing examiner’s findings, conclusions, and recommended order. Appellant petitioned for judicial review. Following a hearing, the District Court affirmed the holding of the Board of Personnel Appeals. Appellant’s motion to amend and a motion for a new trial were denied. This appeal followed.

We are asked to decide whether the District Court erred in affirming the findings of the Board of Personnel Appeals that Butte-Silver Bow violated Section 39-31-401(5), MCA, by refusing to process Officer Wood’s grievance. When the issue is one of law, the Court is free to reach its own conclusions from the evidence presented. Section 25-7-102, MCA.

Resolution of the issue turns on whether the grievance procedure in the then existing collective bargaining agreement between Officer Wood and appellant provides a remedy for a police officer which is in addition to that set out in Section 7-32-4155 of the Metropolitan Police Act. The Metropolitan Police Act, Section 7-32-4101 et seq., MCA, enacted in 1907, fixes the conditions under which a policeman may be appointed, may continue to enjoy the office, and may be removed therefrom. A police commission, Section 7-31-4155, MCA, has the duty and the exclusive jurisdiction to hear, try and decide all charges brought by any person against any officer or member of the police department. See State ex rel. Mueller v. District Court (1930), 87 Mont. 108, 113. 285 P. 928, 930; In the Matter of Dewar (1976), 169 Mont. 437, 443, 548 P.2d 149, 153. The officer then has the right of appeal to the District Court pursuant to Section 7-32-464, MCA:

“District court review. The district court of the proper county shall have jurisdiction to review all questions of fact and all questions of law in a suit brought by any officer or member of the police force, but no suit to review such hearing or trial or for reinstatement to office shall be maintained unless the same is begun within a period of 60 days after the decision of the police commission or order of the mayor has been filed with the city clerk.”

The collective bargaining agreement between appellant and Officer Wood provides in Article 3, Section 2 that after a thirty day probationary period and confirmation of appointment by the police commission, an “applicant becomes a member of the police force and holds such position during good behavior unless suspended or discharged as provided by law.” The agreement specifically incorporates the Metropolitan Police Act in Article 31, in which the parties “agree and recognize that the [Butte-Silver Bow] law enforcement department is subject to the regulations of the Metropolitan Police Law of the State of Montana . . . “ Therefore Butte-Silver Bow’s method for discharge is that found in the Metropolitan Police Act. Article 14, Section 4, of the agreement defines grievance as “a complaint by an employee that he/she has been treated unfairly or unjustly in the interpretation or application of [the agreement’s provisions].” Thus a grievance arises only on a misapplication of a provision of the agreement. Neither party claims a misapplication of the method of discharge.

By the agreement’s own terms, the Act is applicable. It was applied. The agreement, pursuant to the Act, provides adequate administrative and judicial determination and review when an officer is discharged. It does not provide a grievance procedure for termination. The parties to this agreement are bound by these terms.

Officer Wood seeks further review of the same conduct by a different body. Such an attempt could result in contradictory holdings. More importantly, however, the terms of the agreement do not permit this course of action.

We find appellant did not commit an unfair labor practice because the terms of the agreement were followed. Therefore, we reverse and remand to the District Court for an order consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

The majority are in grievous error when they conclude that the metropolitan police law (Title 7, Ch. 32, Part 41, MCA) precludes the grievance procedures allowable to a terminated policeman under his union’s collective bargaining agreement.

The majority members ascribe “exclusive” jurisdiction to the police commission under Section 7-32-4155, MCA. The words “exclusive” or “exclusive remedy” are not to be found in Section 7-32-4155, or any other part of the statute which is a part of the Metropolitan Police Law. The assertion that procedure before the police commission is “exclusive” is a legislative amendment to the Metropolitan Police Act beyond the power of this Court to adopt.

Under Section 39-31-305, MCA, collective bargaining includes the performance of the mutual obligation of the public employer and the representatives of the workers to negotiate in good faith with respect to wages, hours, fringe benefits, “and other conditions of employment or the negotiation of an agreement or any question arising thereunder.” This Court said in City of Livingston v. Montana Council No. 9 (1977), 174 Mont. 421, 425, 571 P.2d 374:

“The Supreme Court has held ‘collective bargaining is a continuing process.’ Among other things it involves . . . protection of employees’ rights already secured by contract. Connelly v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, 85 (1957). The processing of grievances in grievance hearings is collective bargaining. Timken Roller Bearing Company v. National Labor Relations Board, 161 F.2d 949, 954 (U.S.C.A. 6th, 1947). In Ostrofsky v. United Steel Workers of America, 171 F.Supp. 782, 790 (D.M.D. 1957) aff’d 273 F.2d 614 (U.S.C.A. 4th, 1960), cert.den. 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732 (1950 [1960]), the Court stated:
“ ‘. . . the employer had the same duty to bargain collectively over grievances as over the terms of the agreement.’ ”

When the Union and Butte-Silver Bow recognized in their collective bargaining agreement that the law enforcement department is subject to the regulations of the Metropolitan Police Law, it was a recognition of all of the provisions of that Act, including limits on salary, provisions for retirement, as well as the provisions contained in the Act for the termination of a policeman. Nothing in the collective bargaining agreement excluded, withdrew or canceled the right of the employee to found a grievance on the termination proceedings before the police commission within Section 4, Art. 14, of the Collective Bargaining Agreement:

“Section 4: A grievance shall mean a complaint by the employee that he she has been treated unfairly or unjustly in the interpretation and application of the provisions of this agreement or of established policy or practice.”

When the terminated police officer in this case filed his grievance, he was proceeding under the Collective Bargaining Agreement but Butte-Silver Bow refused to process his grievance. The refusal by Butte-Silver Bow to follow the grievance procedure which it had bargained for amounted to a failure to bargain in good faith and constituted an unfair labor practice. See Savage Public Schools v. Savage Education Association (1982), 199 Mont. 39, 647 P.2d 833.

The Collective Bargaining Agreement further provided that even the interpretation of the agreement might give rise to a grievance which would have to be processed under the agreement. Section 6, Art. XIV, provided:

“Section 6: Any grievance or dispute which may arise between the parties including the application, meaning or interpretation of this agreement shall Automatically proceed to the next step.” (Emphasis added.)

Under the Collective Bargaining Agreement, if Butte-Silver Bow disagreed with the application of the Collective Bargaining Agreement to the termination proceedings before the Commission, under the grievance procedure it could refer that question to an arbitrator. It was that step that should have been taken under the agreement by Butte-Silver Bow. Instead it chose to breach its grievance procedure agreement which it had bargained for, and it was thereby guilty of an unfair labor practice.

Finally, terminated Officer Wood is not a party to this action. The parties are Butte-Silver Bow, the Montana State Board of Personnel Appeals, which has determined that Butte-Silver Bow committed an unfair labor practice, and the local union of the American Federation of State, County and Municipal Employees (AFL-CIO). The union is before this Court claiming that Butte-Silver Bow, in refusing to process a grievance, has violated its Collective Bargaining Agreement. That sole issue should be decided by us, and not the prospective or speculative possibility that “Officer Wood seeks further review of the same conduct by a different body.” That is what Butte-Silver Bow bargained for and it should be held to its agreement. The union is correct in maintaining that an unfair labor practice occurred here, and the Board of Personnel Appeals should be affirmed in this action.

MR. JUSTICE MORRISON and MR. JUSTICE HUNT concur in the dissent of MR. JUSTICE SHEEHY.