author: JUSTICE LEAPHART

text:
    MERCURY MARINE, a division of Brunswick Corp., Plaintiff and Appellant, -vs-MONTY’S ENTERPRISES, INC., also known as Monte White Enterprises, d/b/a MONTY WHITE FORD & SUBARU and d/b/a MONTY WHITE SPORTS and MONTY R. WHITE, individually, Defendants and Respondents.
    No. 94-398.
    Submitted on Briefs March 2, 1995.
    Decided March 31, 1995.
    52 St.Rep. 255.
    270 Mont. 413.
    892 P.2d 568.

      For Appellant: Lewis K. Smith; Smith Law Firm, Helena.
    For Respondent: Mark A. Vucurovich; Henningsen, Vucurovich & Richardson, Butte.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Mercury Marine, plaintiff/appellant, filed suit against Monty R. White (White) based upon White’s execution of a contract of guarantee in which White guaranteed payment of an open account in the name of Monty White Ford & Subaru (White Ford & Subaru). White filed a motion for summary judgment contending that the five-year statute of limitations on the open account with White Ford & Subaru had expired and, thus, White’s contract of guarantee was exonerated under § 28-11-211, MCA. The District Court granted White’s motion for summary judgment. Mercury Marine appeals from the granting of summary judgment. We reverse.

Factual Background

Mercury Marine is a division of Brunswick, Inc., which manufactures and distributes marine engines and other products. In 1978, Mercury Marine agreed to supply marine engines and other products to White Ford & Subaru for retail sale on an open account. White, the owner of White Ford & Subaru, executed a personal guarantee on June 3, 1978, guaranteeing payment on the open account. Pursuant to these agreements, Mercury Marine delivered Mercury Marine engines to White Ford & Subaru in 1981 and 1983.

Mercury Marine alleges that White Ford & Subaru failed to pay for the engines on the 1981 and 1983 purchase orders. White Ford & Subaru and White, individually, dispute whether any money is still due and owing with regard to those purchases. However, in response to collection efforts by Mercury Marine, White made two $100 payments on the open account on February 20, 1987 and April 10,1987.

Mercury Marine filed suit against White Ford & Subaru and White, individually, on April 8, 1992. The complaint seeks payment of the sum of $20,782.69, allegedly due and owing for the 1981 and 1983 purchase orders. White was named as a defendant pursuant to his personal guarantee executed on June 3, 1978.

Standard of Review

This Court’s standard of review on a grant of summary judgment is identical to that of the trial court. Johnson v. Nyhart (Mont. 1995), 889 P.2d 1170, 1173, 52 St.Rep. 37, 39; Cooper v. Sisters of Charity of Leavenworth (1994), 265 Mont. 205, 207, 875 P.2d 352, 353. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P; Spain-Marrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331.

In the case at hand, assuming, arguendo, that there is an outstanding debt, there are no genuine issues of material fact and, thus, the matter is ripe for a summary ruling on the issue of law, that is, “Does the running of the statute of limitations against the principal exonerate or discharge the guarantor?”

Discussion

The statute of limitations as it applies to White Ford & Subaru.

The debt owing on the open account by White Ford & Subaru is subject to a five-year statute of limitations pursuant to § 27-2-202(2), MCA. The last payment on the open account was made on April 10, 1987. The five-year statute of limitations thus expired as of April 10, 1992. Since Mercury Marine did not file its complaint until April 28, 1992, the filing of the complaint was some eighteen days beyond the five-year statute of limitations and thus any claim based upon the open account is barred by § 27-2-202(2), MCA. On that basis, the District Court granted summary judgment to White Ford & Subaru and Mercury Marine has not appealed from that summary judgment.

Does the running of the statute of limitations against the principal thereby exonerate the guarantor, Monty R. White?

The debt owing on the written contract of guarantee by White individually is subject to an eight-year statute of limitations pursuant to § 27-2-202(1), MCA.

Mercury Marine’s complaint dated April 28, 1992, was within eight years of April 10,1987, the date of the last payment on the open account. White, however, contends that since Mercury Marine allowed the five-year statute of limitations to run as against the principal, White is exonerated under the provisions of § 28-11-211(1), MCA, which provides as follows:

A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor without the consent of the guarantor the original obligation of the principal is altered in any respect or the remedies or rights of the creditor against the principal in respect thereto are in any way impaired or suspended. The District Court, relying upon the above statute, held that White

was entitled to exoneration as a matter of law. We disagree.

Although this case presents an issue of first impression in the state of Montana, we do have the benefit of case law from the states of California and Oklahoma, both of which have statutes which parallel Montana’s § 28-11-211(1), MCA.

Section 2819 of the California Civil Code provides as follows:

A surety is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the surety the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended.

The California Supreme Court had occasion to address the issue of whether the guarantor is exonerated when the cause of action against the principal is barred by the statute of limitations in Bloom v. Bender (Cal. 1957), 313 P.2d 568, superseding (Cal.App. 1957), 305 P.2d 975. The Bloom decision involved a guarantee by Bess Bender of an open account for Midwest Sportswear Company, Inc. The case involved a composition agreement entered into by Midwest in an attempt to avoid insolvency. The beneficiary of the guarantee contract then filed suit against the guarantor for the unpaid balance owing on the open account. The district court found the guarantee contract was a separate and distinct contract on which the statute of limitations had not run and that the guarantor was not exonerated as she expressly consented in the guarantee contract to the release or compensation agreement.

On appeal, the California Supreme Court held that the running of the statute of limitations against the principal did not bar the action against the guarantor.

Although there is a substantial conflict of authority in other jurisdictions as to whether a surety is discharged when the cause of action against his principal is barred by the statute of limitations (see 72 C. J.S. Principal and Surety § 233, page 692), this Court has recognized that “the more reasonable and logical rule, supported by a number of cases, is that the obligation of the surety remains notwithstanding the fact that the statute of limitations has run on the obligation of the principal. [Citations.]” .... Thus, in California, the obligation of defendant on her continuing guarantee is not barred merely because the statute of limitations had rim against the obligation of the principal debtor, Midwest.

Bloom, 313 P.2d at 571. This holding in Bloom was reaffirmed by the California Supreme Court in Regents of Univ. of Calif v. Hartford Accident & Indemnity Co. (1978), 581 P.2d 197, 203.

We agree with the California Supreme Court’s conclusion that the obligation of a guarantor is not barred due to the running of the statute of limitations as to the obligation of the principal. Furthermore, such an interpretation of § 28-11-211, MCA, is necessary in order to harmonize that statute with another more specific statute relating to the same subject matter. Section 28-11-213, MCA, provides as follows:

Mere delay on the part of a creditor to proceed against the principal or to enforce any other remedy does not exonerate a guarantor.

It is a basic principle of statutory interpretation that this Court will, if possible, construe statutes so as to give effect to all of them. Section 1-2-101, MCA. Further, “when a general statute and a specific statute are inconsistent, the specific statute governs, so that a specific legislative directive will control over an inconsistent general provision.” Gibson v. State Comp. Mut. Ins. Fund (1992), 255 Mont. 393, 396, 842 P.2d 338, 340; citing State v. Montana Dep’t of Public Service Regulation (1979), 181 Mont. 225, 593 P.2d 34.

In interpreting §§ 28-11-211 and 28-11-213, MCA, it is instructive to look to the state of Oklahoma which has a general exoneration statute identical to Montana’s § 28-11-211, MCA. See Okla. Stat. 15, § 338. Oklahoma also has a statutory provision which parallels Montana’s § 28-11-213, MCA. Okla. Stat. 15, § 342, like Montana’s § 28-11-213, MCA, provides, “[m]ere delay on the part of a creditor to proceed against the principal, or to enforce any other remedy, does not exonerate a guarantor.” The Oklahoma Court, relying on this latter statutory provision, concluded that an action to recover on a contract of guarantee cannot be defeated by showing that the claim against the original debtor has been barred by the statute of limitations. Dupree v. Jordan (1926), 252 P. 67, 70-71; Apache Lanes, Inc. v. National Educators Life Ins. Co. (1974), 529 P.2d 984, 986; appeal after remand, 555 P.2d 600.

The reasoning of the California and Oklahoma Supreme Courts is in accord with the Restatement of Security § 130 Comment a on subsection (1) and illustration 2 (1941).

The Supreme Courts of Oklahoma and California have interpreted statutory provisions identical to Montana’s §§ 28-11-211 and 28-11-213, MCA. We concur with their interpretation that the creditor’s claim against a guarantor is not exonerated by the running of the statute of limitations as against the principal.

We conclude that the District Court erroneously interpreted and applied Montana law in issuing its summary judgment. Accordingly, we reverse and remand to the District Court for further proceedings consistent with this decision.

JUSTICES GRAY, TRIEWEILER, HUNT and WEBER concur.

       In California, the distinction between sureties and guarantors has been abolished. Section 2787 Calif.Civil Code.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    IN THE MATTER OF THE RENEWAL, OF THE TEACHING CERTIFICATE OF GERALD THOMPSON
    No. 94-324.
    Submitted on Briefs November 17, 1994.
    Decided March 23, 1995.
    52 St.Rep. 200.
    270 Mont. 419.
    893 P.2d 301.

      For Appellant: Kathleen F. Holden, Special Assistant Attorney General, Office of Public Instruction, Helena.
    For Respondent: Torger S. Oaas, Lewistown; Elizabeth A. Best, Best Law Offices, Great Falls.
    For Amicus: Hon. Joseph P. Mazurek, Attorney General, Kimberly A. Kradolfer, Assistant Attorney General, Helena (Board of Public Education); Janice F. Doggett (Montana School Boards Ass’n); Douglas F. Bates, Salt Lake City, Utah, (National Ass’n of State Directors of Teacher Education and Certification)
   JUSTICE WEBER

delivered the Opinion of the Court.

The Montana Office of Public Instruction appeals from an Order of the District Court of the Eighth Judicial District, Cascade County. The District Court’s Order reversed an Order of the Board of Public Education which denied the renewal of Gerald Thompson’s teaching certificate. Nonrenewal was based on the Board’s conclusion that Gerald Thompson is not of good moral and professional character because of incidents of sexual misconduct. The District Court concluded that the authorities involved in investigating the allegations of sexual misconduct had actively sought to suppress the truth, that the actions of the County Attorney were “shocking to the conscience” of the court and that Gerald Thompson had been deprived of due process during the proceedings leading up to the Hearing Examiner’s decision which was adopted by the Board of Public Education. We affirm the District Court.

The dispositive issues are as follows:

I. Did the District Court err in reversing the Order of the Board of Public Education based on the expert testimony provided by OPI’s expert?

II. Did the District Court err in concluding that the Order of the Board of Public Education was not supported by substantial credible evidence?

Gerald Thompson (Thompson) began teaching in 1977. In 1981, he was hired by the Hobson School District to teach, coach basketball, and to be part-time administrative assistant to the district superintendent. He was head high school basketball coach for the boys’ team from 1981 until his resignation on December 5,1988. He also coached high school girls’ basketball from 1984 until 1987. In July 1987, he was promoted to district school superintendent and he relinquished his teaching and girls’ basketball coaching duties.

In late November of 1988, the Board of Trustees for the Hobson School District (School Board) received two letters alleging sexual misconduct by Thompson. Lisa Killham (Killham), a 1987 Hobson High School graduate, signed one of these letters; K.W., a senior at Hobson High School at the time, signed the other.

The School Board later received two additional claims alleging sexual misconduct by Thompson. One of these was from a former employee of the school district, Margaret Aamold, alleging sexual misconduct during her employment; the other was from a 1986 Hobson High School graduate, Tammy Hutchinson (Hutchinson), alleging sexual misconduct by Thompson after her graduation from high school when she visited him at his home.

Hobson is a community of less than 250 residents. The substance of the letters from Killham and K.W. became widely disseminated throughout the small community within a period of approximately forty-eight hours after the School Board met to consider what to do about the allegations. As a result of the allegations becoming widely known in Hobson and the publication of an article about the sexual misconduct allegations, Thompson resigned his position with the Hobson School District effective December 5, 1988. His resignation was due in part to the position taken by at least two School Board members who stated their belief that Thompson could not continue to be effective in his position considering the community’s division regarding the truthfulness of the allegations made by Killham and K.W.

The Judith Basin County Attorney investigated the allegations on behalf of the School Board. She also referred the matter to the Attorney General’s office for a decision on whether to prosecute Thompson for criminal sexual conduct regarding the facts alleged in the claims made by Killham and K.W. Thompson was subsequently charged with two counts of sexual intercourse without consent and one count of attempted sexual contact.

The Office of Public Instruction (OPI) controls the granting and renewal of teaching certificates in Montana. Thompson’s teaching certificate expired July 1,1990, approximately one and one-half years after the first allegations of sexual misconduct came to light. Prior to its expiration, he filed an incomplete application for renewal, indicating that he was awaiting the resolution of pending criminal charges. In December of 1990, the charges against Thompson were dismissed. Thompson then notified OPI of such dismissal.

OPI investigated the matter primarily by obtaining a copy of the Attorney General’s file on the criminal charges against Thompson. After OPI’s investigation, the Superintendent of Public Instruction denied renewal of Thompson’s teaching certificate on May 16, 1991, based on OPI’s determination that Thompson was not of good moral character, as required by § 20-4-104(l)(b), MCA.

Thompson appealed OPI’s decision to the Board of Public Education (the Board). The Board appointed an attorney as hearing examiner for purposes of the appeal and a hearing was held on April 8-11, 1992. The Hearing Examiner determined that OPI’s decision to deny renewal of Thompson’s teaching certificate should be upheld because Thompson did not meet the requirement of § 20-4-104(l)(b), MCA, that he be of “good moral and professional character.” This conclusion was based on the Hearing Examiner’s finding that Thompson demanded and attempted to force Killham to engage in sexual activities with him on December 9, 1986, when she was a student at Hobson High School, and the additional finding that he had made unwelcome sexual advances toward Hutchinson in 1987. In view of the contradictory testimony elicited from various witnesses, we emphasize that the findings were limited to an unsuccessful attempt to force Killham to perform oral sex and a making of unwelcome sexual advances to Hutchinson.

Thompson filed formal exceptions to the Proposed Order of the Hearing Examiner. The Board heard arguments by the parties on January 22, 1993 and subsequently reviewed the entire transcript and all exhibits. On March 19, 1993, the Board voted 5-1 to uphold the findings and conclusions of the Hearing Examiner, adopting them and the proposed order without amendment.

Thompson then appealed the matter to the District Court. The District Court reversed the Board’s decision and remanded the matter to the Board, determining thát the decision not to renew Thompson’s certification was clearly erroneous because it was not supported by substantial evidence. The court also concluded that the Hearing Examiner had allowed an unqualified witness, held out as an “expert,” to “excuse obviously false and vindictive testimony to support OPI’s refusal to renew Gerald Thompson’s teaching certificate.” The court further stated that the Hearing Examiner had used allegations of non-school related conduct — Hutchinson’s allegations — to support that conclusion. The court stated that a review of the record left the court with the definite and firm conviction that a mistake and an injustice had been committed. The court held that Thompson’s procedural and substantive due process rights had been violated by the actions of the Judith Basin County Attorney, on behalf of the School Board and OPI, and that such actions shocked the conscience of the court. The court further held that the admission of improper expert testimony deprived Thompson of the fundamental fairness mandated by due process.

OPI appeals the District Court’s reversal of the Board’s decision to this Court. The following quote from the Proposed Order of the Hearing Examiner aptly describes the seriousness of the case before us:

Although the decision in this matter is as difficult as any I have made as a hearings examiner, there are certain things which are clear. From the testimony of numerous witnesses it is beyond refute that Mr. Thompson was a talented and respected teacher, coach and administrator. If the charges are untrue a high caliber professional has had his life’s work ruined. However, if the charges are true he is a sexual predator who should not be in a position of power and authority with women and girls and the licensing agency would be remiss if it allowed Mr. Thompson to be licensed as a teacher.

Further facts are provided throughout this opinion as may be necessary for discussion.

ISSUE I

Did the District Court err in reversing the Order of the Board of Public Education based on the expert testimony provided by OPI’s expert?

OPI presented a drug and alcohol counselor to provide testimony as an expert witness on sexual abuse. OPI’s expert provided the only expert testimony at the hearing. Her testimony formed the basis for the Hearing Examiner’s findings that Thompson attempted to have sexual relations with Killham on December 9, 1986, and with Hutchinson in 1987. As to the allegations made by K.W. and Mrs. Aamold, the Hearing Examiner determined that their allegations were not credible.

Although the testimony and the allegations of abuse made by both Killham and Hutchinson were fraught with inconsistencies and contradictions which the Hearing Examiner stated would seem to make them improbable, the examiner disregarded these inconsistencies based on the expert’s testimony. The findings include the following statements concerning the drug and alcohol counselor’s testimony as used by the examiner to support Killham’s credibility:

The stories of the two main complaining witnesses are troubled by inconsistencies and contrary evidence. However, OPI presented expert testimony that inconsistencies are part of the normal pattern of behavior for sexual abuse or sexual harassment victims. The expert... is a counselor with extensive training in sexual abuse and extensive experience in counseling victims. I found her testimony credible.
The inconsistencies begin immediately. [Killham’s] letter to the school board... alleges that she was forced to actually perform oral sex with Mr. Thompson on that day. [The inconsistency is that at the time of hearing Killham testified that Mr. Thompson asked her to perform oral sex but that she did not do so.] The boys’ teams had played their first games of the season prior to December 9. It is illogical that Lisa would be getting practice jerseys on December 9, since the jerseys would have been handed out to the team members long before. The teacher whom she testified interrupted the assault has no recollection of going to the storage room and finding Lisa and Mr. Thompson. Mr. Thompson established he went to his dentist’s office that afternoon to receive his allergy shot and was there for an hour or more .... This left very little time for the incident to occur. The librarian, where Lisa was working as an aide around the time of the incident recalls Lisa being very happy and excited about her eighteenth birthday. Lisa wrote a note in Mr. Thompson’s practice book that day, after the incident was alleged to have occurred. She wrote “Lisa’s B-day” and drew a happy face.
The inconsistencies would seem to make Lisa’s allegations improbable. However, my interpretation of the sexual abuse expert’s testimony is that blocking out abusive incidents from memory is a self-preservation mechanism commonly employed by victims and that later recollection tends to come back slowly and incompletely and in a jumbled fashion, and that it is common for the victim to put up a facade of normalcy. This is logical and consistent with Lisa’s testimony.
Again, the sexual abuse expert testified victims tend to be those who appear to be vulnerable and lacking in self-esteem. Lisa fits that profile. ...

The following statements by the Hearing Examiner relate to Hutchinson’s testimony:

Again there are inconsistencies. Tammy stopped to see Mr. Thompson at the school and at home on a later visit to Hobson, making a point to introduce her friend from college. At a basketball game she sat with Mr. Thompson and engaged in conversation the entire time. This behavior again fits that of an abuse victim. I find Mrs. Hutchinson to be a very credible witness to which Mr. Thompson’s only response is that this did not happen when she came to his house that night. I find her testimony true, and I find that the incident did occur.

Clearly, the assumption that these two young women were victims of sexual abuse pervades the Hearing Examiner’s findings and the conclusions. We emphasize that the conduct of Killham and Hutchinson as above-quoted, while it arguably may fit within the profile of victims, could also fit many other explanations. Other explanations for their behavior were not ruled out, nor were they addressed. Moreover, the incident alleged by Hutchinson, if true, occurred at Thompson’s home and long after she graduated from high school. It is insufficient in itself to support the Board’s action, and it was arguably inappropriate to use it to buttress the charge brought by Killham which the Hearing Examiner found had occurred.

The Hearing Examiner’s conclusion that the abusive incidents occurred hinged on the drug and alcohol counselor’s testimony as an expert on sexual abuse. The District Court concluded that the Hearing Examiner “improperly relied on concededly incredible testimony which was erroneously bolstered by inadmissible testimony of an unqualified expert.” This conclusion raises two separate issues— whether the testimony was admissible and whether the expert was qualified to testify. For the reasons explained below, we conclude the Hearing Examiner erred in basing his decision on the inadmissible testimony and, therefore, we decline to address the qualification of the expert witness.

Standard of Review

On appeal, the District Court determined that OPI’s expert had testified that the abuses alleged by Killham and Hutchinson had occurred and that her testimony should not have been admitted. Like other decisions concerning the admissibility of evidence, a ruling on whether expert testimony is admissible is left to the discretion of the trial judge. State v. J.C.E. (1988), 235 Mont. 264, 269, 767 P.2d 309, 312; State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 455. Similarly, the determination of whether a witness is qualified as an expert is left to the discretion of the trial judge, who has wide latitude in making such determinations. J.C.E., 767 P.2d at 312. Citing the general rule in Montana that experts may not testify on an ultimate issue, the District Court in this case determined that the ultimate issue was whether the alleged acts had occurred and that the expert had testified that the acts alleged really did occur, thereby invading the province of the trier of fact. See Heltborg v. Modern Machinery (1990), 244 Mont. 24, 29-33, 795 P.2d 954, 957-59.

Was the expert’s testimony admissible?

Admissibility of expert testimony in administrative proceedings is an issue which has not been thoroughly addressed by this Court. The Montana Administrative Procedure Act (MAPA), at § 2-4-612(2), MCA, provides that agencies are bound by common law and statutory rules of evidence, except as otherwise provided by statute relating directly to an agency. Often the hearing examiner in a formal contested case hearing will admit the evidence and will consider the weight to be given to such evidence when preparing findings and conclusions from all the evidence. Although the Rules of Evidence are generally more relaxed in an administrative proceeding than in a court of law, they are not to be relaxed to the point of disregarding due process of law and the fundamental rights of the individual. Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 364, 584 P.2d 656, 661. While our discussion in this case draws on other areas of the law in reaching conclusions, our opinion is directed only to the administrative hearing process.

Although this case centers around the allegations of high school students, and the two incidents relied on by the Hearing Examiner involved an eighteen-year-old and a nineteen-year-old, our discussion is permeated with references to child sexual abuse without reference to age as that is how it was presented at the administrative hearing and argued in briefs in this Court by the parties and by amici curiae.

In a criminal case, the question whether a child is a victim of sexual abuse is a question that may be clarified by qualified expert testimony. Harris, 808 P.2d at 456. As a general rule, however, expert testimony evaluating the credibility of witnesses is not admissible. We have adopted an exception to this general rule in cases where the witness is a child victim of sexual assault, testifies at trial and credibility is brought into question. J. C.E., 767 P.2d at 312-13; Harris, 808 P.2d at 455. OPI relied on this exception to introduce otherwise inadmissible evidence to rebut the impeachment evidence provided by Thompson.

We have not addressed to an appreciable degree in the area of criminal law at what age such rehabilitative evidence is no longer appropriate and we have not indicated that it is appropriate to consider it up to and beyond the age of attaining majority. Most of our cases addressing this subject involve young children. In State v. Donnelly (1990), 244 Mont. 371, 378, 798 P.2d 89, 93, however, we discussed expert testimony on credibility in relation to a victim who was fifteen years old at the time she testified, but who had been sexually abused prior to that time. In Donnelly, 798 P.2d at 93, an expert was allowed to provide testimony to rehabilitate the credibility of the victim.

In State v. Hensley (1991), 250 Mont. 478, 481, 821 P.2d 1029, 1031, the victim was a month shy of her seventeenth birthday when she testified that she had been abused over a five-year period. We concluded that admitting the expert testimony in Hensley was reversible error where the victim was sixteen years old, a competent witness and was under no physical or mental disability. Hensley, 821 P.2d at 1032. We reasoned that the jury was capable of assessing the credibility of such a witness without resort to expert assistance. If the present case were a criminal prosecution, no foundation had been laid which would warrant admission of expert testimony.

In our present case, the allegations were made to the School Board. Those allegations triggered criminal charges which were later dismissed. The charges were made by adults and by one minor, K.W., age sixteen in 1988 at the time she made the allegations. Although Killham was still in high school, she reached eighteen on the very day of the alleged act which the Hearing Examiner found had occurred. She made the allegations nearly two years later. The question then is whether there was a proper basis or foundation for expert testimony in the present case to rehabilitate the credibility of the witnesses.

The cases which have come before this Court involving sexual abuse have raised difficult evidentiary questions. Harris, 808 P.2d at 456. Much of the litigation regarding such abuse has challenged the suitability of using experts’ opinions to determine if a particular person was a victim of sexual abuse. It has involved issues of hearsay and whether the conduct exhibited by the alleged victim was consistent with conduct demonstrated by victims of sexual abuse in general. It has often related to the unavailability of the child victim for purposes of testifying, as well as the normally inadmissible out-of-court statements of very young children. In such cases, if the victim was unable to relate information about an alleged offense in a courtroom setting, crucial probative evidence may have been lost.

We have summarized the foregoing to emphasize that none of the foregoing applies in the present case. Here the grave danger by the admission of such expert testimony was demonstrated with clarity when the expert testified in general statements about delays in reporting abuse, recantátions and inconsistencies in testimony of sexual abuse victims; and her general statements were relied upon by the Hearing Examiner. We emphasize here that, while the present case involved an administrative proceeding, the constitutionally protected interest of Thompson in his right to employment as a teacher was directly involved. At that point, the effect of inadmissible testimony becomes most significant. In Harris, 808 P.2d at 456, we stated:

While we recognize that expert testimony regarding the sometimes puzzling and seemingly contradictory behavior of victims of child sexual assault may aid the jury to determine ultimate issues, such as whether the crime actually occurred, we must be careful not to allow the witness to become a conduit for otherwise inadmissible testimony.

With regard to generalized credibility testimony as presented in the present case, the rationale for allowing expert testimony to explain delays in reporting or recantations of charges of sexual abuse by victims is that it provides reliable information which the trier of fact can use to assist in understanding evidence. While qualified experts possess specialized knowledge regarding certain aspects of credibility, their capacity to detect lying and coaching is too limited to justify admission of generalized credibility testimony. John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 127 (1989).

Thus, without an explanation, an expert’s general statements that delays and recantations are common in victims of sexual abuse may prejudice the accused because the trier of fact may defer to the expertise of the expert in the field of child sexual abuse and infer that the expert believes the witness to be credible. This is exactly what happened in the present case. It is the reason that expert testimony-on credibility is not permitted in most instances.

In addition to her testimony about delays in reporting abuse and recanting prior allegations of abuse, OPI’s expert repeatedly testified, in reference to inconsistent testimony, that memory may be affected in that a victim’s memory of the facts may be unclear, garbled or blurred due to the trauma involved and the resultant shock used as a buffer by the victim. Again, we note that her testimony relates to victims of sexual abuse in general, not specifically child victims.

The key testimony by the expert here was that the inconsistencies in the testimony and the contrary nature of some of the testimony was explained by the alleged sexual abuse, yet the record indicates that other explanations for the inconsistencies are possible. Thompson’s counsel objected to each of the hypothetical questions posed to the witness. He based some of the objections on lack of foundation and relevancy and had a continuing objection as well to the testimony from this expert witness.

As above cited, Hensley established that where a victim was sixteen years old, a competent witness, and under no physical or mental disability, it was reversible error to admit expert rehabilitation testimony. As we have indicated, the record here contains nothing to establish that any of the witnesses, all of whom were over eighteen years of age at the time of the hearing, were for some reason not competent as witnesses or were under any form of physical or mental disability. We therefore conclude that there was a failure to establish a foundation for the use of any expert testimony under Hensley. As a result, we hold that the testimony on the part of the expert was not admissible.

ISSUE II

Did the District Court err in concluding that the Order of the Board of Public Education was not supported by substantial credible evidence?

The Rules of Evidence were developed to assure that triers of fact formulate their decisions on reliable, probative and substantial evidence. MAPA acknowledges this concept in providing standards of review for administrative agency decisions in § 2-4-704, MCA. We have interpreted § 2-4-704, MCA, to mean that an agency’s findings of fact are reviewed to determine whether they are clearly erroneous. Baldridge v. Rosebud County School Dist. #19 (1994), 264 Mont. 199, 205, 870 P.2d 711, 714. In addition, the court may not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Baldridge, 870 P.2d at 717; § 2-4-704(2), MCA. In order to properly review the District Court’s decision, we must review the Board’s findings — identical to those of the Hearing Examiner in this case — to determine whether they are supported by reliable, probative and substantial evidence in the record. Baldridge, 870 P.2d at 718, (quoting Trustees, Carbon County School Dist. No. 28 v. Spivey (1993), 262 Mont. 513, 521, 866 P.2d 208, 213).

The District Court determined that certain of the Hearing Examiner’s findings and conclusions were not supported by substantial credible evidence when the expert’s testimony was disregarded. OPI contends that the District Court had to substitute its judgment for that of the Hearing Examiner and reweigh the evidence on critical matters of fact in order to determine that the findings were not supported by substantial evidence and were thus clearly erroneous. We disagree.

Our holding in Issue I approved the District Court’s ruling that the Hearing Examiner had abused his discretion by considering the testimony of OPI’s expert for any purpose. In the proper case, where there are no independent findings of fact to support the sort of action taken by the court here, further action on the part of the Board may be necessary. However, in this case, no purpose would be served by requiring the Board to hear the matter anew or to remake findings and conclusions consistent with the excision of the expert’s testimony. The Board adopted all the findings and conclusions of the Hearing Examiner, and the findings and conclusions were sufficiently comprehensive so that the court could modify the Board’s order, provided there is substantial evidence in the record to support them.

The District Court’s Order contains sufficient detail of facts with references to the transcript and other evidence in the record so that this Court is able to determine that the District Court thoroughly reviewed the record. There are two critical findings which the District Court modified after disregarding the expert’s testimony. The court reversed the findings of the Hearing Examiner which determined that the inconsistencies and contradictions in the testimony somehow made the claims of sexual misconduct credible, even though all other evidence pointed to the opposite conclusion. The first was the conclusion that the sexual misconduct incident alleged by Killham to have occurred on December 9,1986, the day of her eighteenth birthday, did not occur. The other was that the allegation made by Hutchinson did not occur and was irrelevant to the issue of renewing Thompson’s teacher certification.

The common thread in these findings is the impact of the expert’s testimony:

OPI presented expert testimony that inconsistencies are part of the normal pattern of behavior for sexual abuse or sexual harassment victims. The expert... is a counselor with extensive training in sexual abuse and extensive experience in counseling victims. I found her testimony credible.
The inconsistencies would seem to make Lisa’s allegations improbable. However, my interpretation of the sexual abuse expert’s testimony is that blocking out abusive incidents from memory is a self-preservation mechanism commonly employed by victims and that later recollection tends to come back slowly and incompletely and in a jumbled fashion, and that it is common for the victim to put up a facade of normalcy. This is logical and consistent with Lisa’s testimony.
... Lisa was also apparently preoccupied with romance and sexual matters and would tell anyone who would listen the most intimate information.
Again, the sexual abuse expert testified victims tend to be those who appear to be vulnerable and lacking in self-esteem. Lisa fits that profile. Lisa’s story of a December 9, 1986 assault is corroborated by three fellow students whom she told of the incident at the time. Lisa’s testimony that Mr. Thompson got her out of class to perform managerial duties is consistent with past practice. Laurie Valentine’s testimony that Lisa was very upset before practice is consistent with Lisa’s testimony. Although Mr. Thompson accounted for a period of an hour or more, there was time for the incident to occur. I find Mr. Thompson had Lisa leave her class on December 9, 1986, on the pretense of performing a task in the equipment room and when he had gotten her to that room he attempted to force her to perform oral sex. Regardless of anything else I find this assault occurred.

One crucial item of testimony which the Hearing Examiner did not consider is that Thompson was teaching a boys physical education class during the class period when the incident allegedly occurred. The Hearing Examiner determined that Thompson had accounted for his time during 6th period but did not consider the unrebutted testimony that he was teaching this class during 7th period.

The District Court did not reweigh the evidence pertaining to Killham’s allegation. Instead, the court disregarded the testimony of the expert, was then left with the Hearing Examiner’s finding that the inconsistencies seemed to make Killham’s allegation improbable and considered the unrebutted probative evidence that Thompson was not free during Killham’s 7th period when she claimed he took her from the library, and concluded that the reliable, probative and substantial evidence left in the record supported no other finding than that Killham was not a credible witness.

OPI contends the court could only reach this conclusion by determining first that Killham’s testimony was not credible and then making the second determination that the testimony of Laura Valentine, Alynn Mikkelson and Amy Otchko Cummings was not credible. Valentine, Mikkelson and Cummings all testified that Killham told them about the alleged incident which occurred on her birthday, December 9, 1986. They all related substantively differing stories about what Killham had told them on that day. The Hearing Examiner used the testimony of these witnesses as evidence to corroborate Killham’s claim that Thompson propositioned her on December 9, 1986.

The testimony of these three witnesses also contradicted Killham’s testimony which was that she had told no one about the alleged incident. Numerous witnesses testified that Killham had a “crush” on Thompson while she was in high school and that she was obsessed with things of a romantic and sexual nature and would relate the most intimate information to anyone who would listen. The core details of the stories Killham allegedly told these three girls differ. For example, Valentine testified that Killham told her she was forced to perform oral sex on Thompson; the others testified that she told them that Thompson had only asked her to do this. Mikkelson testified that Killham had also told her that she had been forced to perform oral sex on Thompson on an occasion when he drove her home after she had been babysitting his child. Not only did Killham testify that this did not occur, she also testified that she did not tell Mikkelson about this incident.

Valentine also testified about an encounter with K.W. shortly after the incident K.W. alleged had happened with Thompson in the summer of 1986. KW.’s testimony pertaining to that event was that she had only told one person, Dawn Hall, about the incident, and that she had not related it to Valentine. The Hearing Examiner did not find Valentine’s testimony credible with regard to KW.’s accusations. However, this is the same sort of testimony the examiner found believable to support the finding that Killham’s alleged sexual abuse incident on December 9, 1986 had occurred. This and other contradictions in the evidence are so prevalent throughout the testimony as to properly allow a conclusion that Killham’s claim was thoroughly impeached. We conclude there is substantial evidence in the record for the court to find that Killham’s claim was thoroughly impeached.

The District Court also determined that Hutchinson’s claim was thoroughly impeached. First, Hutchinson claimed to be deeply traumatized by the alleged incident where she claimed Thompson, in his home, had tried to kiss her and had put his hand on her leg before she pushed him away. Yet, she repeatedly visited him thereafter and even brought a college friend to his office to meet him. The District Court determined that she had “embellished her claim further with a description of an alleged conversation with Killham shortly after the alleged Hutchinson incident (in Spring ’87).” In relating her story that she contacted Killham right after that incident, she spoke of the incident in her testimony as if Killham had been out of high school at the time of their conversation when, in fact, Killham was still a senior in high school at that time. After the alleged incident of sexual misconduct made by Hutchinson, while home from college, Hutchinson also sat with Thompson for the duration of a basketball game and engaged in conversation the entire time.

The Hearing Examiner found Hutchinson to be a “very credible witness to which Mr. Thompson’s only response is that this did not happen when she came to his house that night.” The Hearing Examiner found that her behavior “fit that of an abuse victim.”

The Hearing Examiner essentially stated that the testimony of Killham and Hutchinson was made credible after impeachment by the expert’s testimony. As we have held above, the testimony of the expert concerning general statements about the behavior of victims of sexual abuse was error. The District Court correctly concluded that the Hearing Examiner’s findings that Hutchinson and Killham were victims of abuse are not supported by substantial evidence in the record.

The District Court reviewed the entire record to determine whether substantial evidence supported the Hearing Examiner’s findings. Only by reviewing the entire record would the District Court have been able to come to the conclusions thoroughly outlined in the court’s detailed order supporting the decision to reverse the Board’s decision. The court looked for reliable, probative and substantial evidence as directed by § 2-4-702, MCA, to support them and found such evidence either lacking or not considered by the Hearing Examiner in forming his conclusions. When the expert’s testimony is properly disregarded, the other findings of the Hearing Examiner do not support a conclusion that Thompson is not of good moral and professional character.

Because the Hearing Examiner’s findings and the Board’s order were based on improper evidence in the form of expert testimony and the clearly erroneous findings that Killham’s and Hutchinson’s allegations were true because their credibility was restored, the Board’s order cannot stand. The Hearing Examiner’s findings and conclusions in this case contain sufficient independent statements from which the District Court could reverse the Board’s decision without requiring new findings and conclusions from the record.

We hold the District Court did not err in concluding that the Board’s decision was not supported by substantial credible evidence and should be reversed.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, GRAY, NELSON and HUNT concur. JUSTICE LEAPHART did not participate in this decision because he was not on the Court at the time of its submission.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EDWIN WARREN RILEY, a/k/a “SMOKEY” RILEY, Defendant and Appellant.
    No. 94-034.
    Submitted on Briefs January 19, 1995.
    Decided April 4, 1995.
    52 St.Rep. 258.
    270 Mont. 436.
    893 P.2d 310.

      For Appellant: John E. Smith, Attorney at Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Assistant Attorney General, Helena; George H. Cora, Ravalli County Attorney, Hamilton.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Edwin W. Riley was charged in the District Court for the Twenty-First Judicial District in Ravalli County with incest, in violation of § 45-5-507, MCA. On June 28, 1993, after a trial by jury, Riley was found guilty of the crime charged. The District Court sentenced him to ten years in an appropriate state institution or community based correctional institution or program. Riley appeals his conviction. We affirm the judgment of the District Court.

We restate the issues on appeal as follows:

1. Did the District Court err when it allowed Bob Custer and Pat Richie to comment regarding their observations of the victim during their interview?

2. Was the District Court’s admission of Custer’s testimony regarding out-of-court statements by the victim prejudicial to the defendant?

3. Was Riley’s conviction supported by sufficient evidence?

FACTUAL BACKGROUND

On June 9,1993, Riley was charged by amended information with incest, in violation of § 45-5-507, MCA. The issues raised by this charge and Riley’s denial were the subject of a trial by jury on June 28,1993. At trial, Bob Custer, a former social worker for the Montana Department of Family Services, Detective Pat Richie of the Ravalli County Sheriff’s Department, the victim (Riley’s stepdaughter B.F.), and the victim’s mother, Shirley Riley, all testified.

Custer testified that his office received a referral involving B.F. in February 1993, and that he interviewed her with Detective Richie present. He stated that he found B.F. to be “more mature than the average 16-year-old. Certainly more straightforward, almost blunt.” At trial, Riley did not object to this testimony.

When Custer was asked who B.F. said assaulted her, Riley objected that the question called for inadmissible hearsay evidence. However, the court ruled that while Custer’s reports were inadmissible, his testimony was not. Custer then stated that B.F. reported that her stepfather, Riley, touched her in inappropriate ways while at the family’s mobile home outside of Hamilton.

Detective Richie testified that during her interview with B.F. she was very straightforward in her mannerisms and speech, but that she became angry and frustrated at times during the conversation. She also testified that during a subsequent interview, B.F. appeared to be a very straightforward young lady, but did not appear as outwardly angered. Riley did not object to these descriptions of B.F.’s demeanor, nor any other testimony from Richie.

B.F. testified that on Friday, February 12, while she and Riley were watching movies and her mother was asleep in the back bedroom, Riley “just started picking at me to annoy me and started wrestling around with me, and then he grabbed my breast on the outside of the shirt, sometimes under, and I would tell him to leave me alone ....” B.F. testified that incidents like this happened more than once.

B.F. testified that on Saturday night of the same weekend she was in the kitchen washing dishes when Riley walked up behind her and cupped her breasts and asked her what she was doing. She stated that she told him she was washing the dishes and shrugged him away.

She testified that “[h]e would sometimes tell me to pull down my pants, and I would — and he would grab ahold of my pubic hairs and tell me you’re getting a big bush on you, or he would look at my breasts and tell me I’m growing.” B.F. testified that she tried to discourage this type of action.

B.F. testified that Riley sometimes wrestled with her and that she would get the feeling that he was aroused. B.F. testified that “[h]e would press his penis area up against my body and say, see what you can do to an old man whenever he would get hard.” B.F. also stated that Riley would sometimes kiss her and that he would sometimes pull her blouse down.

B.F. told a school classmate, and later, a school counselor, about these incidents involving her stepfather, in February 1993. B.F. said she did not report any of this earlier because she was afraid that her mother would reject her and that no one would believe her. B.F. also testified that she was afraid she would be taken out of her home.

B.F. stated that she talked with Custer and Richie about these allegations, and that after she talked to Custer, she was placed in a foster home.

B.F. admitted on cross-examination that she did not observe Riley achieve sexual climax during these incidents with her. However, B.F. again stated on redirect examination that, based on Riley’s erection, she felt he had been sexually aroused.

ISSUE 1

Did the District Court err when it allowed Bob Custer and Pat Richie to comment regarding their observations of the victim during their interview?

Riley contends that the District Court erred when it allowed testimony of the investigating social worker, Bob Custer, and the investigating officer, Pat Richie, which had the effect of bolstering B.F.’s credibility. The State points out, however, that no objection to either witness’s testimony was made on that basis at the time of trial. A review of the record demonstrates that the State is correct. We have held that the failure to object constitutes a waiver of that objection pursuant to § 46-20-104, MCA, unless the circumstances come within an exception found at § 46-20-701, MCA. State v. Arlington (1994), 265 Mont. 127, 158, 875 P.2d 307, 326.

Section 46-20-104(2), MCA, provides that:

Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

(Emphasis added.)

There is no demonstration by Riley that any of the exceptions found at § 46-20-701(2), MCA, apply. Therefore, we hold that since Riley failed to raise these objections at trial, he is barred from raising them on appeal.

ISSUE 2

Was the District Court’s admission of Custer’s testimony regarding out-of-court statements by the victim prejudicial to the defendant?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citing State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054).

Riley claims that the testimony of Custer, which repeated B.F.’s allegations, was hearsay and should not have been admitted as a hearsay exception pursuant to Rule 803(8), M.R.Evid. Riley objected during trial to references to the recorded statements of B.F. The District Court held that Custer’s reports themselves, not his testimony, were excluded under Rule 803(8), M.R.Evid., and allowed Custer to repeat what he was told by B.F. Riley contends that based on Rule 803(8)(i), Custer’s testimony which summarized his report was just as inadmissible as his report. We agree.

The State concedes that Custer’s testimony regarding B.F.’s out-of-court statements was hearsay and should have been excluded by the District Court. However, the State argues that the admission of that testimony does not automatically entitle Riley to a reversal of his conviction. With this contention, we also agree.

We have held that “[a]n error by the trial court will be deemed harmless ‘unless the record shows that the error was prejudicial.’ ” State v. Bower (1992), 254 Mont. 1, 5-6, 833 P.2d 1106, 1109 (citing § 46-20-701(1), MCA).

When we examine the prejudicial effect of an error, we will examine the totality of the circumstances in which the error occurred. Bower, 833 P.2d at 1109 (citing Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74).

The record discloses that Custer testified prior to B.F. and that B.F. was, in fact, cross-examined regarding her interview by Custer and Richie. We also note that Custer did not repeat any allegation to which B.F. did not herself testify in much greater detail, and that B.F. was subject to full cross-examination regarding all of her testimony.

In this case, after a review of the record, we cannot conclude that Custer’s testimony was prejudicial to the defendant. It was brief and added nothing to the direct testimony of the victim. We hold that the District Court’s error when it admitted Custer’s hearsay testimony was harmless.

ISSUE 3

Was Riley’s conviction supported by sufficient evidence?

The standard of review for sufficiency of the evidence is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ’’Arlington, 875 P.2d at 318 (quoting State v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120,122).

Riley was charged with the crime of felony incest. Section 45-5-507(1), MCA, provides that:

A person commits the offense of incest if he knowingly marries, cohabits with, has sexual intercourse with, or has sexual contact as defined in 45-2-101 with an ancestor, a descendent, a brother or sister of the whole or halfblood, or any stepson or stepdaughter. The relationships referred to herein include blood relationships without regard to legitimacy, relationship of parent and child by adoption, and relationships involving a stepson or stepdaughter.

(Emphasis added.)

Section 45-2-101(60), MCA, defines sexual contact as “any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.” The District Court instructed the jury that sexual or intimate parts include the “genitalia, breasts, buttocks, hips, belly or chest of a girl.” In this case, B.F. testified that Riley touched intimate parts of her body, including her breasts and her pubic area. B.F. also testified that the defendant appeared to be aroused during these incidents.

Riley argues that there was not substantial evidence in the record to infer that he touched B.F. with intent to arouse or gratify his sexual desires. However, the record indicated otherwise. B.F. testified that “[h] e would press his penis area up against my body and say, see what you can do to an old man whenever he would get hard.” Testimony of a more explicit or graphic nature was unnecessary.

We have held that “[i]ntent is a fact question for the jury, and it is well-settled that the jury may infer intent from defendant’s acts.” State v. Kestner (1986), 220 Mont. 41, 46, 713 P.2d 537, 540 (citing State v. Jackson (1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015). Based upon the previous testimony, the jury could reasonably infer that Riley’s acts were done for the purpose of sexual gratification.

We hold that there was sufficient evidence to support Riley’s conviction for incest.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, LEAPHART, NELSON and WEBER concur.


author: JUSTICE HUNT

text:
    GARY R. GROSHELLE, Plaintiff and Respondent, v. MELVIN E. REID and SHELLI REID, Defendants and Appellants.
    No. 94-456.
    Submitted on Briefs February 23, 1995.
    Rehearing Denied May 4, 1995.
    Decided April 4, 1995.
    52 St.Rep. 261.
    270 Mont. 443.
    893 P.2d 314.

      For Appellants: James P. Healow, Sweeney & Healow, Billings.
    For Respondents: Larry D. Herman, Herman Law Office, Laurel.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellants Melvin E. and Sheila Reid appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, granting partial summary judgment in favor of respondent Gary R. Groshelle, declaring that the provisions of a lease requiring the transfer of a Montana Beer and Wine License from appellants to respondent at the termination of the lease is valid and enforceable, subject to approval by the Montana Department of Revenue.

We affirm.

The issue on appeal is:

Did the District Court err in granting partial summary judgment in favor of respondent?

On May 27, 1988, respondent filed an application with the Montana Department of Revenue for the issuance of a Montana Retail On-Premises Consumption Beer/Wine License for use at 105 East Main, Laurel, Montana. On September 22, 1988, the Montana Department of Revenue issued its order approving respondent’s application for Beer/Wine License No. 03-044-9153-301.

On May 15, 1989, respondent leased the bar and tavern space at 105 East Main to Clayton and Isabel Bertsch for two years, with an option to renew. The Bertschs agreed to rent the premises for $400 a month, to be increased to $500 a month in the seventh month of the lease. The lease provided that respondent would assign the beer and wine license to the Bertschs, and that he would retain a security interest in the license. The Bertschs agreed to reassign the license to respondent on the termination of the lease. On July 20, 1989, the Montana Department of Revenue issued its order approving the transfer of the license to the Bertschs, subject to respondent’s security interest.

After deciding to sell the business, the Bertschs filed an application with the Montana Department of Revenue for transfer of the license to appellants, subject to respondent’s security interest. On June 27, 1990, the Bertschs filed a continuation statement signed by respondent and appellants with the Montana Department of Revenue showing the continuation of respondent’s security interest in the license.

On August 22, 1990, a lease was executed naming respondent as landlord and appellants as tenants of the bar and tavern space at 105 East Main, along with furniture and fixtures. The lease was executed for a term of one year at $500 a month, with an option to renew. On termination of the lease, the license would be reassigned to respondent. On August 29, 1990, the Montana Department of Revenue issued its order approving the transfer of the license to appellants, subject to respondent’s security interest.

On December 27, 1991, respondent and appellants executed another one-year lease for the premises, fixtures, and furniture. The rent was increased to $525 a month. The new lease had similar provisions as to the license. Appellants executed an assignment of the license to respondent as security to be used upon termination of the lease.

On December 22, 1992, respondent and appellants executed another one-year lease with terms similar to the previous lease between the parties as to rent and the license.

On October 11,1993, respondent notified appellants that he would agree to another one-year lease, subject to a $50 a month increase in rent. No agreement was reached between the parties. On December 22, 1993, the one-year lease expired, and appellants continued as hold-over tenants. On January 11, 1994, appellants acknowledged that the lease had expired and demanded that respondent release his security interest in the license. On January 19, 1994, respondent informed appellants that if a new lease was not negotiated, the month-to-month lease would be terminated. On February 7, 1994, respondent notified appellants that the month-to-month lease would terminate on March 11,1994, and that respondent would apply to the Montana Department of Revenue to transfer the beer and wine license to respondent. On March 4, 1994, the Montana Department of Revenue denied respondent’s application and refused to transfer the license to respondent pending a judicial determination.

On March 30, 1994, respondent filed a complaint seeking a judgment declaring the reassignment provisions of the lease valid and enforceable. Appellants counterclaimed, seeking a judgment declaring the reassignment portion of the expired lease unlawful, void, and unenforceable, and discharging respondent’s security interest in the beer and wine license.

On August 11, 1994, the District Court entered final judgment declaring that the provision of the lease requiring transfer of the beer and wine license to respondent to be valid and enforceable as between the parties, subject to the approval of the Montana Department of Revenue. It is from the District Court’s final judgment that appellants appeal.

Did the District Court err in granting partial summary judgment in favor of respondent?

Because factual matters outside of the pleading were relied upon by the parties, the District Court treated the cross-motions for judgment on the pleading as motions for summary judgment under Rule 56, M.R.Civ.R See Rule 12(c), M.R.Civ.R

Our standard of review on a grant of summary judgment is identical to that of the district court. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353. Summary judgment is only proper when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R; Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 442, 872 P.2d 330, 332. The burden of proof rests with the party seeking summary judgment to provide the court with evidence which excludes any real doubt as to the existence of a genuine issue of material fact. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. Only after the moving party has met this burden of proof does the burden shift to the nonmoving party to show that a genuine issue of material fact exists. Morton v. M.W.M., Inc. (1994), 263 Mont. 245, 249, 868 P.2d 576, 579. “When raising the allegations that disputed issues of fact exist, the nonmoving party has an affirmative duty to respond by affidavits or other sworn testimony containing material facts that raise genuine issues; conclusory or speculative statements will not suffice.” Koepplin v. Zortman Mining (1994), 267 Mont. 53, 58-59, 881 P.2d 1306, 1309.

Appellants argue that the District Court erred by declaring that the provision of the expired lease between the parties which reassigned the beer and wine license to respondent was enforceable, subject to the approval of the Montana Department of Revenue. Appellants contend that respondent is not entitled to enforce the reassignment provision of lease because his name did not appear on the license as the owner of the license throughout the time he claimed his security interest. Appellants argue that Feurherm & Neiss v. Schmaing (1979), 181 Mont. 136, 592 P.2d 924, is controlling. The issue in Feurherm is whether a person who claims equitable ownership of a beer license and wishes to have that license revert to him at the expiration of a lease may enforce his claim when he has never been the record owner of the license, his name has never been endorsed on the license in any other capacity, and as a result, he has never been subjected to the scrutiny of the Department of Revenue throughout the time he claimed his equitable interest. We reversed the district court’s holding that Neiss was the owner of the license and that reversion was proper. We reasoned that Neiss’s claimed interest was never made known to the Department of Revenue, and therefore, his qualifications to own a beer license had never been scrutinized by the Department of Revenue.

We agree with the District Court’s conclusion that Feurherm is distinguishable. In Feurherm, we sought to prevent an undisclosed license owner from avoiding the Department of Revenue’s power to revoke a license by revealing at the last minute that he or she, rather than the named licensee, is the true owner. We reasoned that in order for the Department of Revenue to have complete and effective control over the sale of intoxicating beverages, it must be notified of the nature and interest of each person who claims some interest in the license. That was not the case in Feurherm.

However, as the original owner of the license, respondent in the present case was subjected to Department of Revenue scrutiny pending approval of his application. His security interest in the license was filed with the Department of Revenue. His name appeared on the license in his capacity as a secured party. Respondent’s first assignment of the license to the Bertschs was approved by the Department of Revenue in 1989. In 1990, the Department of Revenue approved the transfer of the license to appellants, subject to respondent’s security interest. In connection with this transfer, a continuation statement was signed by respondent and appellants and filed with the Department of Revenue. All subsequent transfers of the license from respondent to appellants were approved by the Department of Revenue. It is clear that the harm we sought to prevent in Feurherm does not exist in the present case.

A beer and wine license is a privilege personal to the licensee, and in no case shall the licensee lease the license to another party. Section 42.12.206(1), ARM. However, the owner of a beer and wine license may transfer the license, subject to approval of the Department of Revenue. See Gartner v, Martin (1977), 173 Mont. 50, 566 P.2d 66; Beard v. McCormick (1966), 147 Mont. 361, 411 P.2d 964. In order to secure the transferor’s interest, an alcohol beverage license may be subject to a mortgage, security interest, and other valid liens. Section 42.12.205(1) and (4), ARM. Nothing in the language of the various leases respondent entered into subsequent to receiving the initial Department of Revenue approval in 1989 creates a lease in the license. Respondent received no fair market value compensation for the license he transferred to appellants. Respondent leased the premises, furniture, and fixtures to appellants, and in addition, transferred the license to appellants, subject to his security interest and the reassignment provision of the lease in order to give value to the lease. There is nothing in the record to suggest that respondent intended to relinquish his beer and wine license for the amount of rent collected from appellants over the course of four years.

We agree with the District Court’s conclusion that the lease provision relating to reassignment of the beer and wine license is lawful and enforceable, subject to approval of the Department of Revenue. We hold that the District Court did not err in granting partial summary judgment in favor of respondent.

We affirm.

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


text:
    STATE ex rel. VIRGINIA P. WILSON, Relator and Appellant, -v-DISTRICT COURT THIRTEENTH JUDICIAL DISTRICT, YELLOWSTONE COUNTY, Respondent.
    No. 93-360.
    Decided April 6, 1995.
    52 St.Rep. 264.
    270 Mont. 449.
    893 P.2d 318.
   OPINION AND ORDER OF DISMISSAL AND REMAND

Virginia P. Wilson, (Wilson) appeals from a District Court order dated May 12, 1993, denying her application for writ of certiorari in connection with a DUI prosecution in Yellowstone County Justice Court which has yet to be completed. We dismiss Wilson’s appeal without prejudice and remand with instructions.

BACKGROUND

The underlying facts and procedural background of this case are set forth in our opinion in State v. Wilson (1992), 252 Mont. 264, 827 P.2d 1286, (Wilson I), and will not be repeated here. Following our decision in Wilson I, and prior to her sentencing hearing in Justice Court scheduled for December 23, 1992, Wilson filed a motion to dismiss for lack of speedy trial. The Justice Court denied Wilson’s motion, and on December 22, 1992, she filed an Application for Writ of Certiorari or Other Appropriate Writ in District Court seeking review of the Justice Court’s ruling on the speedy trial issue. Following a hearing, the District Court denied her application on May 12, 1993, determining that Wilson could raise the speedy trial issue in Justice Court while pursuing an appeal in District Court, and that this constituted an adequate remedy of appeal.

Wilson then appealed to this Court, and the State moved to dismiss her appeal on the grounds that no final judgment was entered and that the District Court’s order denying her application for writ was not appealable. We initially denied the State’s motion to dismiss and ordered that the appeal proceed. To date Wilson has never been sentenced in the underlying Justice Court proceeding.

Having now carefully reviewed the record and the briefs filed by the parties, we conclude that Wilson’s appeal should be dismissed without prejudice as being premature; that this case should be returned to the Justice Court for imposition of sentence; and that, should Wilson then choose to appeal her conviction to District Court, that the District Court shall consider and rule on her motion to dismiss for lack of speedy trial in connection with that appeal.

DISCUSSION

Wilson was convicted of a DUI in Justice Court in 1991, however, as pointed out above, to date she has not been sentenced upon her conviction. It is clear that Wilson is entitled to appeal only from a final judgment of conviction and orders after judgment which affect her substantial rights, § 46-20-104, MCA. It is also clear that since she has not been sentenced, there is no final judgment from which she can appeal, Wilson I, 827 P.2d at 1287, State v. Todd (1993) 262 Mont. 108, 111, 863 P.2d 423, 425, and that any appeal to the District Court or to this Court prior to the imposition of sentence would be premature.

Since, as we hereafter hold, the District Court correctly determined that Wilson could raise her speedy trial issue in connection with her appeal to the District Court, we also conclude that it was proper for that Court to deny her application for writ of certiorari, as she had an adequate remedy of appeal. Section 27-25-102(2), MCA; Bridger Canyon Property Owners’ Association, Inc. v. The Planning and Zoning Commission for the Bridger Canyon Zoning District (1995), [270 Mont. 160], 890 P.2d 1268, 1271.

Whether the District Court can review the denial of the right to speedy trial in Justice Court has not heretofore been squarely addressed. As a general rule, the District Court must try all appeals from Justice Court, de novo, and may not sit as a court of review. City of Billings v. McCarvel (1993) 262 Mont. 96, 101, 863 P.2d 441, 444, and Todd, 863 P.2d at 426.

However, in State v. Barker (1993) 260 Mont. 85, 858 P.2d 360, we carved out a limited exception to the general rule. Barker was charged with DUI but was convicted of reckless driving in Justice Court. He appealed to the District Court and filed a motion to dismiss on the ground of double jeopardy, which was granted. We affirmed on appeal by the State and held that, while a defendant’s statutory remedy for appealing a decision of the Justice Court is trial de novo in District Court, it would be a violation of the prohibition against double jeopardy to try Barker again on the DUI charge because he was originally charged with that offense and jeopardy attached when the first witness was sworn. Barker 858 P.2d at 363-64.

An analogous situation exists in the instant case. Although we are concerned here with a dismissal for lack of a speedy trial, and Barker was concerned with the issue of double jeopardy, both are situations where an appeal to the District Court, which entails a trial de novo, is not an adequate remedy. Moreover, we tacitly approved of an appeal to the District Court to raise speedy trial arguments in State v. Strong (1993), 258 Mont. 48, 851 P.2d 415.

In Strong, the defendant was charged with four misdemeanor offenses, and his first trial on the offenses ended in a mistrial at the Justice Court. The State amended the original complaint, charging the defendant with the same offenses. Prior to the second trial, the defendant filed a motion for lack of speedy trial, which was granted by the Justice Court. The State appealed to the District Court. The defendant again filed a motion to dismiss the charges for lack of speedy trial, and the District Court dismissed the charges.

On appeal to this Court, we concluded that the District Court erred in dismissing the charges because when the first trial ended in a mistrial and the State refiled the charges, the speedy trial time clock began to run anew. We determined that the District Court should have calculated the time period pertinent to the issue of lack of speedy trial from the date at which the mistrial was declared. We did not address the issue of whether a review by the District Court of the lack of speedy trial issue was appropriate, and we treated the issue of lack of speedy trial as an issue properly appealable from the District Court appeal.

In essence, we treated the issue of lack of speedy trial in a similar fashion as we treated the double jeopardy issue in Barker —as an exception to the general rule that the exclusive remedy for defendants from errors at the Justice Court level is by appeal to the District Court for a trial de novo. The purpose of an appeal to the District Court for a trial de novo is to provide a defendant with a “competent remedy in a court of record,” to cure errors at the Justice Court level. Barker, 858 P.2d at 364. However, if the error complained of is a lack of speedy trial, the defendant is complaining of an error which cannot be cured by a trial de novo in a District Court. Carving out an exception to the general rule of appeal to the District Court for a trial de novo is an appropriate method of ensuring that the defendant has an “adequate remedy’ at law.

We hold that the District Court may rule on the Justice Court’s denial of Wilson’s motion to dismiss for lack of speedy trial in the event she timely appeals her Justice Court conviction and sentence to the District Court and raises the speedy trial issue as a part of her appeal.

On the basis of the foregoing rationale and authorities:

IT IS ORDERED that Wilson’s instant appeal should be and the same is hereby, DISMISSED without prejudice.

IT IS FURTHER ORDERED that this case should be and is hereby, REMANDED to the Justice Court for imposition of sentence.

IT IS FURTHER ORDERED that, if, after sentencing in Justice Court, Wilson perfects a timely appeal of her conviction and sentence in Justice Court to the District Court, that the District Court shall hear, consider and rule upon her speedy trial claim in connection with her appeal.

DATED this 6th day of April, 1995.

/S/J. A. TURNAGE, Chief Justice

/S/ JAMES C. NELSON, Justice

/S/ KARLA M. GRAY, Justice

/S/ WILLIAM E. HUNT, SR., Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/ W. WILLIAM LEAPHART, Justice

/S/ FRED J. WEBER, Justice


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DUSTY DENNIS BROWN, Defendant and Appellant.
    No. 94-487.
    Submitted on Briefs March 10, 1995.
    Decided April 6, 1995.
    52 St.Rep. 266.
    270 Mont. 454.
    893 P.2d 320.

      For Appellant: David E. Stenerson, Hamilton; Kirk Krutilla, Superior.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General'; Kathy Seeley, Assistant Attorney General, Helena; Daniel J. Safransky, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In a trial before the District Court for the Fourth Judicial District, Missoula County, a jury found Dusty Dennis Brown guilty of negligent endangerment. He appeals. We affirm.

The issue is whether the District Court erred in denying Brown’s motion for a directed verdict.

On August 3, 1993, Janet Hatt was driving on U.S. Highway 93 northbound from Missoula, Montana, with her two young daughters as passengers. Hatt heard a gunshot behind her. When she looked in the rearview mirror, she saw a large mustard-yellow car following her vehicle. The arm and hand of the front-seat passenger, a man, were extended from the window on that side, holding a gun.

Hatt saw the shooter fire the gun three more times. It appeared to her that the shots were being fired at an older blue car which had pulled over at the side of the road. Although the gun was not aimed at her, she was frightened for herself and her daughters.

Speeding up, Hatt looked for a safe place to get off the road. She stopped at Joe’s Smoke Ring, a business located about a mile from where the shooting occurred. The mustard-yellow car passed without slowing. Hatt ran into the business and called the 911 dispatcher to notify authorities of what she had seen and heard. She then drove on toward her destination.

Six minutes later, a Montana Highway Patrol officer stopped a mustard-yellow Cadillac about six miles north of Joe’s Smoke Ring. Hatt, passing by, saw them. She pulled over and told the officer that the Cadillac was the vehicle from which the shots had been fired.

Dusty Dennis Brown was sitting in the front passenger seat of the Cadillac. Two guns, a 9 mm semi-automatic pistol and an M-l carbine, were in the back seat of the car, along with ammunition for both. The magazine of the pistol, which had been fired since it was last cleaned, was empty. A spent 9 mm casing was found on the floor on the passenger side of the front seat. Brown denied shooting from the Cadillac. The driver and two women riding in the back seat of the car denied knowledge of any shots being fired.

Brown was charged with criminal endangerment, a felony. The jury was instructed on negligent endangerment, a misdemeanor, as a lesser included offense. The jury acquitted Brown of criminal endangerment but found him guilty of negligent endangerment.

Did the District Court err in denying Brown’s motion for a directed verdict?

Our standard of review of a denial of a motion for a directed verdict is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.

Section 45-5-208(1), MCA, defines negligent endangerment:

A person who negligently engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of negligent endangerment.

Brown’s argument on appeal relates to only one aspect of the State’s case. According to Brown, § 45-5-208, MCA, requires proof of a substantial risk of death or serious bodily injury to an identified individual. Brown contends that the State failed to produce, as a necessary element of proof for his conviction, testimony by either the occupants of the blue car or occupants of the houses along Highway 93 that they were put at risk of death or serious bodily injury as a result of his conduct.

In creating the statutory offense of negligent endangerment, Montana’s legislature also enacted § 45-5-207, MCA, which defines criminal endangerment, a felony requiring the mental state of “knowingly.” Ch. 196, L. 1987. The intent was to “plug a hole in the criminal law” and address conduct such as placing poison into aspirin in a store. Minutes of the Montana House Judiciary Committee, February 5,1987.

Brown lists Montana cases involving prosecutions under the endangerment statutes, and, in each case, he identifies specific individuals put at risk by the conduct charged as criminal. Other than that list of cases, Brown cites no authority for his “identified individual” argument. More importantly, he cites no authority for the proposition that, in a prosecution for negligent endangerment, the individual put at risk must personally testify at trial in support of the State’s case.

Hatt testified that there were several homes along Highway 93 on the side of the highway and in the area toward which she saw shots fired. Her testimony was supported by photographs of the area, taken by a Missoula County Sheriff’s Department officer with whom Hatt returned to the scene of the crime. Hatt’s testimony further identified the occupant or occupants of the blue car as persons put at risk by the shooting. Additionally, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Hatt and her daughters were put at risk of death or serious bodily injury from the gun fired from the Cadillac as it proceeded down the highway.

We hold that the State presented sufficient evidence of “a substantial risk of death or serious bodily injury to another” to allow this case to be submitted to the jury. We hold that the court did not err in denying Brown’s motion for a directed verdict.

Affirmed.

JUSTICES GRAY, NELSON, WEBER and LEAPHART concur.